STATE OF NEW JERSEY v. JOSEPH G. GELLENE

NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH G. GELLENE,

Defendant-Appellant.

________________________________________

July 27, 2016

Before Judges St. John and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-02-0157.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joseph G. Gellene, born in 1971, appeals the denial of his admission into the pre-trial intervention (PTI) program, and his conviction, following a jury trial, of fourth-degree stalking, N.J.S.A. 2C:12-10(b). Defendant was sentenced to probation for a term of eighteen months and ninety days' incarceration in the Union County jail as a condition of probation. Appropriate fines and penalties were also imposed. Upon reviewing the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

The record discloses the following facts and procedural history. The prosecutor called the victim, D.H., and several other witnesses to testify in its case. Defendant did not present any witnesses and he did not testify on his own behalf.

In 2006, defendant was a tennis instructor at the Murray Hill Health and Racquet Club (MHHRC). He taught group tennis classes for children between the ages of eight and seventeen. In 2007, D.H., then age fourteen, was enrolled in defendant's class, with between four and six other students ages fourteen to seventeen. Defendant coached D.H. from September through December 2007, until D.H.'s parents became uncomfortable with defendant's behavior and removed D.H. from the class.

At some point during the classes, defendant and D.H. exchanged cell phone numbers. Defendant would call and send D.H. text messages. In the beginning, the messages were mostly about tennis, however, defendant would also pry into D.H.'s personal life. Soon the calls and text messages became incessant, with defendant attempting to contact D.H. around the clock. Initially, D.H. would respond to defendant, but he became annoyed by defendant's persistent contact. D.H., however, never told defendant to stop.

In December 2007, after a tennis lesson, defendant gave D.H. a massage certificate from MHHRC as "just a little something for [his] birthday" because defendant considered D.H. such a "nice kid, [a] special kid." When D.H. told defendant he had a pre-paid cell phone plan and could not talk so much, defendant upgraded D.H.'s plan to an unlimited cell phone plan. This resulted in an increase in the number of text messages defendant would send to him. D.H. received more messages in December than any other period, at all hours of the day. Defendant also attempted to meet with D.H. outside of MHHRC at least once weekly.

Around the holidays in 2007, D.H.'s parents became aware of defendant's behavior. They removed D.H. from his tennis lessons at MHHRC and took away his cell phone. D.H.'s mother called MHHRC to complain about defendant's behavior, and defendant was subsequently removed from his job there. Defendant inquired if he could call the family to clear things up, but was told "no."

Defendant continued to contact D.H., via text messages and phone calls, despite the fact D.H. did not respond. Defendant left voicemails saying things such as, "I don't really know why you're not talking to me. I was just thinking of you," when D.H. did not answer the phone. Defendant continued to contact D.H. from 2008 through 2010.

In April 2011, on Palm Sunday, defendant was called to the altar as a new member at the Grace Lutheran Church in New Providence where D.H. and his family were parishioners. At that time, defendant resided in Long Branch, over fifty miles from the church. That evening, defendant sent D.H. a text message quoting scripture and asking D.H. if he remembered the sermon. D.H. did not respond.

The following week, D.H. saw defendant in church and defendant again texted D.H. that night. The same thing occurred the following week. D.H. stopped going to church because he no longer felt comfortable. D.H.'s mother spoke to the pastor about the situation and eventually contacted the New Providence Police Department. On July 8, 2011, defendant was arrested. On February 11, 2013, a Union County grand jury returned Indictment No. 13-02-00157 charging defendant with one count of fourth-degree stalking, contrary to N.J.S.A. 2C:12-10(b).

Defendant applied for admission to the PTI program, which was rejected by the prosecutor in a letter dated November 28, 2011. Defendant's application was also reconsidered by the PTI Program Team Leader "in light of the defendant's superseding indictment," and rejected on February 27, 2013.

In the November 28, 2011 rejection letter, the prosecutor set forth several reasons for the rejection, including: the assessment of the nature of the offense; diversion to PTI would be "contrary to the interests of society," in that society "needs to be protected from individuals who continually prey upon individuals in the way that a stalker does," thereby implicating the prosecutor's law enforcement policy; entry into PTI would deny the victim the ability to obtain a permanent restraining order; defendant's "lack of responsiveness to correction and amenability to rehabilitation," noting "he was charged for acting similarly with another young boy, yet neither the charge nor [his] subsequent conviction deterred him from his behavior toward the victim in the instant matter;" and that PTI would not deter him from future crimes. Defendant appealed the denial to the Law Division, and by order dated June 7, 2013, his appeal was also denied.

In denying defendant's application for admission into PTI the PTI judge first reviewed Rule 3:28 and N.J.S.A. 2C:43-12. The PTI judge noted the objection of the prosecutor, and that "judicial review of prosecutorial discretion regarding admission into PTI is strictly limited, State v. Baynes, 148 N.J. 434, 443 (1997)." The PTI judge stated, "the prosecutor's determination to admit or deny defendant into PTI must be afforded great deference, State v. Nwobu, 139 N.J. 236, 246 (1995)." The court indicated for a judge to reverse a prosecutor's decision, defendant must clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of discretion.

The PTI judge stated, "that this is not a victimless offense, and that a prosecutor's refusal to [divert] a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense." The PTI judge found that "the State has considered all of the relevant factors, that the decision was not based upon a consideration of irrelevant or inappropriate factors."

The judge found that the alleged stalking "went on for multiple number of years, much of the time when the alleged victim was a juvenile," and he concluded "that defendant in this case was - - was for a number of years acting in a predatory fashion towards the victim and that it is [ ] in those best interests to prosecute this rather than grant PTI." Further, the PTI judge determined that "[t]here's an extreme need for deterrence here and protection of - - of juveniles." The court concluded "there was not a patent and gross abuse of discretion here."

A trial took place over three days before a second judge (trial judge). On April 9, 2014, the jury returned a verdict of guilty for stalking, and defendant was sentenced on May 16, 2014. This appeal ensued.

II.

On appeal, defendant presents the following issues for our consideration

POINT I

THE DENIAL OF DEFENDANT'S APPLICATION INTO THE PRE-TRIAL INTERVENTION PROGRAM AND HIS APPEAL FROM THAT DENIAL WAS A PATENT AND GROSS ABUSE OF DISCRETION.

POINT II

THE RECORD IS DEVOID OF PROOFS TO SUPPORT THE VERDICT OF STALKING BEYOND A REASONABLE DOUBT.

Rule 3:28(g) provides that a Criminal Part judge's denial of a PTI appeal is challengeable by appeal to this court after a judgment of conviction. We review the PTI judge's decision to affirm the prosecutor's rejection of a PTI application de novo.

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) (explaining that a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.") (citations omitted).

"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).

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 (2016). 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)). "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, 111-12 (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 in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.").

"[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 (quoting Kraft, supra, 265 N.J. Super. at 111-12). "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) (citations omitted). "[I]nterference by reviewing courts is reserved for those cases where 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), certif. denied, 222 N.J. 18 (2015).

However, in Roseman, supra, our Supreme Court clearly explains that, regardless of the relevant 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." Id. at 622 (quoting Pressler & Verneiro, supra, Guideline 2 on R. 3:28). "When a statutory presumption against PTI applies . . . 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, our Supreme 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.

In determining whether "extraordinary and unusual" circumstances exist, a fact-sensitive analysis requiring the consideration of "idiosyncratic" circumstances is required. Ibid. 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 a clear error in judgment. Id. at 247 (citing State v. Bender, 80 N.J. 84, 93 (1979)). Defendant must also make a showing that the prosecutorial error will "clearly subvert the goals underlying [PTI]." Ibid.

Applying these principles, we agree the defendant did not demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur. Nor did defendant show compelling reasons justifying admission into PTI, and did not establish that a decision against enrollment would be arbitrary and unreasonable. Therefore, we concur with the PTI judge's decision to deny defendant's admission into the PTI program.

We next consider defendant's argument that the trial record is devoid of proofs to support a guilty verdict of stalking beyond a reasonable doubt.

Stalking is defined as follows: "A person is guilty of stalking . . . if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress." N.J.S.A. 2C:12-10(b). The statute defines "[c]ourse of conduct" as

repeatedly maintaining a visual or physical proximity to a person . . . following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person's property; repeatedly committing harassment against a person; or repeatedly conveying

. . . verbal . . . threats . . . or threats implied by conduct or a combination thereof directed at or toward a person.

[N.J.S.A. 2C:12-10(a)(1).]

"Repeatedly" is defined as "two or more occasions." N.J.S.A. 2C:12-10(a)(2). "Emotional distress" is defined as "significant mental suffering or distress." N.J.S.A. 2C:12-10(a)(3). The trial judge correctly charged the jury on the elements of the offense of stalking and the jury returned a guilty verdict.

In effect, defendant is asserting that the jury's verdict was against the weight of the evidence. Defendant is precluded from raising this issue on appeal since he failed to make a motion for a new trial in the trial court on these grounds. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); State v. Kyles, 132 N.J. Super. 397, 401 (App. Div. 1975). In any event, a jury verdict will not be set aside unless it clearly and convincingly appears that there was a miscarriage of justice under the law. R. 2:10-1; State v. Sims, 65 N.J. 359, 373-374 (1974). Given the evidence of defendant's repeated actions against the victim over several years, it is clear that the guilty verdict was amply supported by the evidence and not a miscarriage of justice.

Affirmed.