STATE OF NEW JERSEY v. JONATHAN D. DAMIAN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1082-14T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JONATHAN D. DAMIAN,

Defendant-Respondent.

_______________________________________________

August 5, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-02-0234.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Linda M. Claude-Oben, SpecialDeputy Attorney General/Acting Assistant Prosecutor, on the brief).

Adrienne D. Edward, attorney for respondent.

PER CURIAM
The State appeals from the trial court's October 17, 2014 order admitting defendant Jonathan Damian into the Pretrial Intervention Program (PTI) over the prosecutor's objection. The State argues that the prosecutor's decision to reject defendant's application was based upon a thorough consideration of all the appropriate factors and did not constitute a gross and patent abuse of discretion. We agree with the State and, therefore, reverse and remand.

Defendant, age twenty-three when the incidents occurred, engaged in sexual conduct with the fourteen-year-old victim. The victim's mother told police that defendant, a family friend, exposed his genitals to the victim on five occasions, placed the victim's hand on his genitals, and touched the victim's genitals. Defendant told the victim's mother that he had a sexual encounter with the victim. Consequently, defendant was charged with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3.

Defendant applied for admission to PTI, noting that he had no prior criminal history, was gainfully employed, and the non-

"assaultive" third and fourth-degree offenses charged did not constitute a continuing pattern of anti-social behavior.

In rejecting defendant's PTI application, the PTI official relied primarily on the nature of the offense and the motivation and age of defendant, explaining

The defendant is a [twenty-three][-]year[-]old male who became involved in an incident with the [fifteen][-]year[-]old daughter of his friends.1 The defendant exposed his penis to the victim and had her touch it and also touched her genitals. He claimed this was a mutually consented to romantic relationship. The victim in this case is only [fifteen] years old and is not of the age of consent so therefore it was not a consensual relationship as he claimed. The defendant is [eight] years older than the victim and supposed to be much more mature [than] her and should have known better [than] to engage in this type of behavior especially with the daughter of his friend. It appears he took advantage of the situation in which he was viewed as a friend and trusted to be with the daughter. Due to the age of the victim[,] a defendant such as this would require a higher level of supervision [than] he would receive in PTI which is a minimal supervision program. This would place him beyond the scope of PTI.

The prosecutor concurred with the rejection. The prosecutor also added that defendant gave the victim an iPhone during the period of time that he was developing a relationship with her.2 Furthermore, the victim's mother, while not seeking jail time for defendant, believed he should be registered under Megan's Law.

Defendant appealed to the trial judge. In his written decision, the judge noted the factors for PTI eligibility under N.J.S.A. 2C:43-12(e) and Rule 3:28. The judge found that there is "evidence in the record which would reasonably lead the [c]ourt to conclude that . . . relevant factors had not been taken into consideration by the State." The judge concluded that the State failed to consider the following: defendant's amenability to the rehabilitative process; that defendant has no prior criminal record or history of substance abuse; and that defendant is gainfully employed. For these reasons, the judge found that, "The rejection of the [d]efendant from the PTI program constitute[d] a patent and gross abuse of discretion," and granted defendant's PTI application. This appeal followed.

We review de novo the trial judge's decision to override the prosecutor's rejection of a PTI application. We do so because "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105; see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

"PTI 'is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.'" State v. Roseman, ___ N.J. ___ (slip op. at 18) (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The goal of PTI is to allow, in appropriate situations, defendants to avoid the potential stigma of a guilty conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 347-48 (2014).

PTI is governed by statute and court rule. See N.J.S.A.2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2015). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see also State v. Negran, 178 N.J. 73, 82 (2003) (stating that courts must "allow prosecutors wide latitude").

"[T]he scope of review is severely limited." Negran, supra, 178 N.J. at 82. Reviewing courts must accord the prosecutor "extreme deference." Nwobu, supra, 139 N.J. at 246. To overturn a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007), aff'd, 193 N.J. 507 (2008). "[I]nterference by reviewing courts is reserved for those cases needed to check [] the most egregious examples of injustice and unfairness." State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (citation and internal quotation marks omitted). We apply the same standard of review as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).

However, in Roseman, supra, the Court makes clear that

Regardless of the statutory presumptions, "[e]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur." Pressler & Verneiro, supra, Guideline 2 on R. 3:28, at 1167. When a statutory presumption against PTI applies, as here, a criminal defendant can show that PTI is nonetheless warranted through "facts or materials demonstrating the defendant's amenability to the rehabilitation process." Ibid. To overcome the statutory presumption against PTI the defendant must "show[] compelling reasons justifying . . . admission, and establish[] that a decision against enrollment would be arbitrary and unreasonable." Ibid. Presumptions against PTI reflect an assumption that certain defendants "have committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable." Watkins, supra, 193 N.J. at 523. Accordingly, this Court has stated that overcoming these presumptions requires showing "something extraordinary or unusual" about the defendant's background. Nwobu, supra, 139 N.J. at 252-53.

[___ N.J. ___ (slip op. at 21-21) (alterations in original).]

In determining whether "extraordinary and unusual" circumstances exist, a fact-sensitive analysis requiring the consideration of "idiosyncratic" circumstances is required. Id. at 23. These circumstances must demonstrate that "denial of PTI has resulted in a serious injustice." Ibid. (citation and internal quotation marks omitted).

In order to show a patent and gross abuse of discretion has occurred in the context of a prosecutor's denial of a PTI application, defendant must first show that the prosecutor's determination (a) did not take into account all relevant factors, (b) was based upon irrelevant or inappropriate factors, or (c) constituted to a clear error of judgment. Id. at 24. Defendant must also make a showing that the prosecutorial error will "clearly subvert the goals underlying Pretrial Intervention." Ibid.

Applying this demanding standard of review, the trial court erred in overriding the prosecutor's decision. Rather, the court's conclusions related to the State's articulated reasons for rejecting defendant's admission into PTI reflect the court's substitution of its own judgment over that of the prosecutor. SeeWallace, supra, 146 N.J. at 589 (reversing trial court's override of prosecutor's rejection, finding the court should have limited its review to whether it was "arbitrary, irrational or otherwise an abuse of discretion for the prosecutor to have assigned as much weight to the gravity of the offense . . . .").

Although defendant contends the prosecutor failed to properly consider his positive attributes, "nowhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned [the] several criteria[,]" instead "it clearly intended to leave the weighing process to the prosecutor or program director." Id. at 585-86. Furthermore, defendant has failed to demonstrate that "extraordinary and unusual" circumstances exist, resulting in a "serious injustice."

The motion judge erred by predicating his decision upon his own assessment of the PTI factors, and improperly substituting his own discretion for that of the prosecutor. Importantly, the trial court undervalued the seriousness of defendant's offenses. Defendant took advantage of a child for his own sexual gratification. Defendant offered no evidence that he would respond affirmatively to PTI beyond asserting his own "character and attitude." Although the prosecutor did not explicitly remark on defendant's clean criminal record and gainful employment when discussing their decision, these facts were clearly indicated on defendant's application to the program. More importantly, defendant failed to make a showing that the alleged non-consideration of his employment and lack of criminal history "clearly subvert the goals underlying Pretrial Intervention."

In support of the reliance on the seriousness of the offenses, the prosecutor notes that the penalties associated with the crimes defendant has been charged with include "numerous levels of supervision." These levels of supervision have been found necessary to combat future acts of sexual abuse against minors. As such, a defendant facing these charges requires supervision beyond what the PTI program provides. We agree.

The prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion. We are therefore constrained to reverse.

Reversed and remanded.

1 Although defendant was fourteen years old when the abuse occurred, she turned fifteen shortly before the investigation began.

2 Defendant was accused of exposing himself to the victim electronically, using their cellphones.