STATE OF NEW JERSEY v. GEORGE J. STEVENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE J. STEVENS,

Defendant-Appellant.

______________________________

July 26, 2016

Submitted July 18, 2016 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation Nos. 14-12-0509 and 14-12-0510.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant George Stevens appeals from the Law Division's March 24, 2015 judgments of conviction for third-degree terroristic threats and third-degree theft. We affirm.

I.

On December 10, 2014, defendant waived his right to grand jury proceedings and pled guilty to third-degree terroristic threats, N.J.S.A. 2C:12-3(b), under Accusation No. 14-12-0509, and third-degree theft, N.J.S.A. 2C:20-3, under Accusation No. 14-12-0510. He subsequently filed an application for admission into the pre-trial intervention (PTI) program.

By letter dated January 13, 2015, the Hudson County Assistant Criminal Division Manager recommended against defendant's enrollment in the PTI program. The recommendation was based on defendant's lack of amenability to counseling and his prior record. The recommendation was also made because one of the offenses involved a threat of violence, defendant committed the terroristic threat offense following his arrest on the theft charge, and defendant committed the terroristic threat offense against the victim of the theft.

On January 28, 2014, the Hudson County Prosecutor's Office (HCPO) rejected defendant's PTI application. The HCPO relied upon defendant's "prior criminal history, including a term of probation which he failed to successfully complete," as the basis for its decision.

Defendant appealed the HCPO's rejection to the trial court. After hearing argument, the court denied defendant's appeal. In a detailed written decision the court found that defendant's prior record and failure to successfully complete a term of probation provided a proper basis for the HCPO's decision, defendant failed to demonstrate the decision "constituted a patent and gross abuse of discretion," and there was no showing the HCPO "failed to consider all applicable factors."

On March 20, 2015, defendant was sentenced to concurrent two-year probationary terms, directed to have no victim contact, and was ordered to pay fines and penalties. This appeal followed.

On appeal, defendant makes the following argument

POINT I

THE TRIAL COURT ERRED IN FINDING THE STATE'S DENIAL OF DEFENDANT'S APPLICATION FOR PRE-TRIAL INTERVENTION WAS NOT AN ABUSE OF DISCRETION.

II.

A prosecutor has wide discretion in making determinations on PTI applications, and those decisions "will rarely be overturned." State v. Baynes, 148 N.J. 434, 443 (1997) (quoting State v. Wallace, 146 N.J. 576, 585 (1996)). A court reviews a prosecutor's denial of a defendant's admission into PTI "to check only the most egregious examples of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). "[T]his elevated standard of review stems from '[t]he need to preserve prosecutorial discretion in deciding whether to divert a . . . defendant from the ordinary criminal process . . . .'" Ibid. (second alteration in original) (quoting Kraft, supra, 265 N.J. Super. at 111). We apply the same standard of review of a PTI denial as the trial court. State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).

A prosecutor's decision denying a defendant's PTI application is afforded great deference. State v. Roseman, 221 N.J. 611, 624 (2015) (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A prosecutor's recommendation may be reversed only if the defendant can "clearly and convincingly" demonstrate that the prosecutor's decision constitutes a "patent and gross abuse of . . . discretion." State v. K.S., 220 N.J. 190, 200 (2015) (alteration in original) (quoting Wallace, supra, 146 N.J. at 582); Nwobu, supra, 139 N.J. at 246; State v. Bender, 80 N.J. 84, 90 (1979).

A patent and gross abuse of discretion represents "a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial (sic) intervention,'" Wallace, supra, 146 N.J. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)), and exists if the prosecutor's decision was not premised upon a consideration of all relevant factors, was based upon a consideration of "irrelevant or inappropriate factors," or amounted to a "clear error in judgment." Nwobu, supra, 139 N.J. at 247 (quoting Bender, supra, 80 N.J. at 93); State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014), certif. denied, 222 N.J. 18 (2015).

Based upon our review of the record, and substantially for the reasons set forth in the court's written opinion, we are convinced that defendant failed to clearly and convincingly establish that the prosecutor's decision constituted a patent and gross abuse of discretion. K.S., supra, 220 N.J. at 200. We add the following comments regarding defendant's arguments on appeal.

We reject defendant's argument that the prosecutor's decision was impermissibly based on defendant's prior arrests that did not result in convictions. See id. at 199 (holding that a prosecutor may only consider prior dismissed charges where "the reason for consideration [is] supported by undisputed facts of record or facts found at a hearing"). Although the Assistant Criminal Division Manager detailed defendant's prior arrests not resulting in convictions as a basis for her recommendation, there is no evidence the HCPO's decision was based upon those arrests. The HCPO rejected defendant's application based upon his prior criminal history and violation of a previously imposed probationary sentence.

The court upheld the HCPO's decision without regard to defendant's prior arrests not resulting in convictions. The court found that defendant's "convictions for obstruction of entry, breach of peace, wandering, failure to display proof or payment upon request, and simple assault" supported the HCPO's decision. See id. at 197 (noting that "'the applicant's record of criminal and penal violations,' N.J.S.A. 2C:43-12(e)(9)" is to be considered by the prosecutor in deciding a PTI application). The court also found that defendant's failure to complete a one-year term of probation for a simple assault conviction was correctly considered by the HCPO. We therefore discern no basis in the record supporting defendant's contention that the HCPO impermissibly relied upon defendant's prior arrests that did not result in convictions.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.