STATE OF NEW JERSEY v. JOSHUA A. COLLINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSHUA A. COLLINS,

Defendant-Appellant.

________________________________________

November 18, 2016

Submitted July 26, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 13-09-0871.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Bryant J. Flowers, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Joshua Collins appeals the decision to deny his application for admission into the Pre-Trial Intervention (PTI) program. We affirm.

I.

Defendant became addicted to pain medication and other drugs following a serious automobile accident while in the military, which left him disabled and depressed. Although he was honorably discharged, defendant and his family became homeless and faced significant medical bills.

Defendant's wife, also suffering from substance abuse, burglarized four residences, and although defendant did not participate, he knowingly received $40 in cash from the robberies and pawned a stolen cell phone for $70 to buy drugs.

Following his arrest and indictment, defendant made application for PTI, which was rejected because of multiple municipal convictions, other pending municipal charges and two missed appearances. The trial judge affirmed the prosecutor's decision to deny defendant's admission to PTI, finding that defendant had not shown "patent and gross abuse of discretion" by the prosecutor in denying defendant's PTI application because defendant had thirty arrests that resulted in six disorderly persons convictions, and was arrested on other charges after this indictment. The trial judge found that this supported the decision that defendant was "not likely to be amendable [sic] to the benefits of [PTI]." The judge also noted that, after his indictment, defendant was sentenced to the county jail and was removed from the SLAP1 program.

Having been denied PTI, defendant pled guilty to third degree receiving stolen property, N.J.S.A. 2C:20-7. By that time, he was attending a rehabilitation program. Defendant was sentenced to a two-year term of probation.

On appeal, defendant claims the trial court erred by declining to admit him to PTI because it failed to consider his status as a veteran, his "strong desire to rehabilitate himself," the non-violent nature of the offense "driven by addiction" and also that the court improperly considered his past arrests.

II.

"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, 221 N.J. 611, 621 (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). "Eligibility 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." Roseman, supra, 221 N.J. at 622.

Deciding whether to permit a defendant to divert 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)). It involves the consideration of a non-exhaustive list of seventeen statutory factors, see N.J.S.A. 2C:43-12(e), in order to "make an individualized assessment of the defendant considering his or her amenability to correction and potential responsiveness to rehabilitation." Roseman, supra, 221 N.J. at 621-22 (internal quotation marks omitted) (citing State v. Watkins, 193 N.J. 507, 520 (2008); N.J.S.A. 2C:43-12(b)). Prosecutors are given "broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582).

The scope of our review of a PTI rejection is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 249). "In order 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," Watkins, supra, 193 N.J. at 520 (citation and internal quotation omitted), meaning that the decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Ibid. (citation and internal quotation omitted). An abuse of discretion is manifested where it can be proven "that the [PTI] denial '(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment[.]'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)), certif. denied, 222 N.J. 18 (2015).

Applying these principles, there is no basis to disturb the trial court's decision. We reject defendant's contention that relevant factors under the statute were not considered in the trial court's decision to deny PTI. The court was aware defendant was receiving rehabilitation services through the Veterans' Administration and that the nature of the offenses was drug- related. The court took into consideration the briefs of both parties' counsel and the factors under N.J.S.A. 2C:43-12. The court was not required to elevate the fact of defendant's participation in rehabilitation above its consideration of other factors.

There was no patent and gross abuse of discretion by the prosecutor in concluding from defendant's record that he was a poor candidate for PTI's goal of short-term rehabilitation. Defendant's criminal record showed six drug-related convictions. He had been arrested on thirty occasions, including after the indictment at issue here. He was also removed from the SLAP program for failure to appear. He failed to appear twice on the underlying matter for an arraignment conference.

We agree that consideration of defendant's arrests that did not result in convictions would no longer be permissible in the absence of support by "undisputed facts of record or facts found at a hearing." K.S., supra, 220 N.J. at 199. However, that was not the state of the law in 2014 under State v. Brooks, 175 N.J. 215 (2002), overruled in part by K.S., supra, 220 N.J. at 199, when this PTI decision was made. Defendant's record did not consist solely of his arrests, but also included six convictions.

We conclude that the trial court properly found there was no patent and gross abuse of discretion by the prosecutor's decision to deny defendant's PTI application.

Affirmed.

1 The acronym "SLAP" refers to the Sheriff's Labor Assistance Program, N.J.S.A. 2B:19-5.