STATE OF NEW JERSEY v. ROBERT HERD
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3036-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROBERT HERD,
Defendant-Respondent.
Argued November 8, 2017 – Decided November 27, 2017
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
16-06-1041.
David M. Liston, Assistant Prosecutor, argued
the cause for appellant (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Mr.
Liston, of counsel and on the brief).
Rebecca Gindi, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender, attorney;
Ms. Gindi, of counsel and on the brief).
PER CURIAM
The State appeals from an order admitting defendant Robert
Herd into the Pretrial Intervention Program (PTI) over the
prosecutor's objection. The State contends the motion judge
substituted his judgment for that of the prosecutor, and the
prosecutor's decision to reject defendant's PTI application was
based on a thorough consideration of all appropriate factors and
did not constitute a gross and patent abuse of discretion. We
agree with the State and reverse.
I.
The following facts are set forth in the PTI recommendation
report submitted by the Criminal Division Manager serving as PTI
Director. On January 19, 2016, an undercover investigator with
the Middlesex County Prosecutor's Office (MCPO) Task Force
completed a controlled purchase of .99 grams of marijuana from
defendant for $20. The transaction took place within 1000 feet
of Mill Lake Elementary School and within 500 feet of the Monroe
Community Center. On January 27, 2016, an undercover MCPO officer
completed a second controlled purchase of 7.06 grams of marijuana
from defendant for $110.
These drug transactions resulted in defendant's arrest on
March 29, 2016. Following his arrest, police observed defendant
chewing on a green vegetation they believed to be marijuana. The
police asked defendant how much marijuana he ate, to which he
responded he "didn't eat shit."
2 A-3036-16T1
Defendant was subsequently charged in Middlesex County
Indictment No. 16-06-1041 with two counts of fourth-degree
distribution of marijuana,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A.
2C:35-5(b)(12) (counts one and four); third-degree distribution
of marijuana on or near school property,
N.J.S.A. 2C:35-7 (count
two); third-degree distribution of marijuana within 500 feet of
public property,
N.J.S.A. 2C:35-7.1 (count three); and fourth-
degree evidence tampering,
N.J.S.A. 2C:28-6(1).
Defendant applied for admission into PTI after he was
indicted. The Criminal Division Manager, as the PTI Director,
recommended defendant's admission into PTI. According to the
recommendation report, defendant was then an unmarried twenty-two
year old high school graduate who had attended one semester of
college. He was currently unemployed but actively seeking
employment. He reported smoking marijuana daily when he was
younger, but recently smoked only occasionally. Documentation
showed defendant participated in counselling programs in 2015 and
2016 for treatment of alcohol use disorder and cannabis use
disorder.
The report stated defendant had a record of two juvenile
offenses in 2007 that were dismissed. As an adult, defendant had
municipal court convictions for criminal trespass and wandering,
3 A-3036-16T1
a local ordinance violation, and a traffic violation for underage
drinking.
The report recommended defendant's admission into PTI,
conditioned upon a substance abuse evaluation, compliance with all
treatment recommendations, and random urine monitoring. The
report also recommended defendant be required to continue his
education or procure and maintain employment, and remain offense
free.
At a January 9, 2017 status conference, the prosecutor advised
the court he was still considering defendant's application. He
elaborated: "[M]y instinct is to reject [defendant] for PTI. I
don't believe he's an appropriate candidate for supervision." The
prosecutor proposed that defendant submit to a urine test, which
defendant declined on the advice of counsel. The prosecutor stated
defendant's decision to refuse the test was "neither here nor
there," and would "not weigh[] either way" in his decision to
approve or deny defendant's application.
On January 15, 2017, the prosecutor issued a lengthy letter
rejecting defendant's application, thereby overriding the
Director's recommendation. The prosecutor explained he considered
"all information about [defendant] that is positive and
favorable," and each of the seventeen criteria identified in
4 A-3036-16T
1 N.J.S.A. 2C:43-12(e). We quote from the rejection letter at
length:
Subsections 1 and 2. The Nature of the Offense
and Facts of the Case. During . . . January
[] 2016, defendant engaged in the distribution
of marijuana in Monroe Township.
Specifically, on two separate occasions
defendant sold a quantity of marijuana to an
undercover officer. The first sale was also
within 1000 feet of the Mill Lake Elementary
School and within 500 feet of the Monroe
Community Center. On March 29, 2016,
defendant was arrested by officers from the
Monroe Township Police Department in
connection with charges relating to the prior
drug sales. After he was placed under arrest,
the officers observed defendant chewing on
something and he had what appeared to be
marijuana stuck to his lips and teeth.
Subsection 3. The Motivation and Age of the
Defendant. Defendant is [twenty-two] years
old and has indicated in the PTI Report that
he would be a good candidate for PTI because
it is the first time he is really in trouble,
he wants to get his life back on track, he is
trying to work and wants to go back to school.
He further indicated that PTI would provide
structure and would still allow him to get a
job. Finally, he stated that he made a mistake
and is trying to do the right thing.
Subsection 4. The desire of the complainant
or victim to forgo prosecution. This factor
is not applicable in the instant case.
Subsection 5. The Existence of Personal
Problems and Character Traits Which May be
Related to the Applicant's Crime and For Which
Services are Unavailable Within the Criminal
Justice System, or Which may be Provided More
Effectively Through Supervisory Treatment and
the Probability that the Causes of Criminal
5 A-3036-16T1
Behavior can be Controlled by Proper Treatment
and Subsection 6. The Likelihood that the
Applicant's Crime is Related to a Condition
or Situation That Would be Conducive to Change
Through his Participation in Supervisory
Treatment. There are no "personal problems"
or "character traits" which are unique to this
defendant for which services would only be
available outside the criminal justice system.
Further, since the defendant has never been
subject to supervisory treatment there is no
way to tell whether he would be conducive to
change if given the opportunity.
Subsection 7. The Needs and Interest of the
Victim and Society. While there is no
specific victim of defendant's crimes, our
communities as a whole suffer as a result of
the actions of those who distribute drugs.
Society has a strong interest in deterring
individuals from such conduct. There is a
need for both specific and general deterrence
in this case.
Subsection 8. The Extent to Which the
Applicant's Crime Constitutes Part of a
Continuing Pattern of Antisocial Behavior and
Subsection 9. The Applicant's Record of
Criminal and Penal Violations and the Extent
to Which He May Present a Substantial Danger
to Others. Although[] the defendant has no
prior indictable record, the instant offense
appears to be part of a pattern of antisocial
behavior. Defendant repeatedly engaged in
criminal activity in January and March[,]
2016. Furthermore, his two prior municipal
convictions along with the instant arrest
failed to deter his criminal activity, as he
admitted to smoking marijuana until August []
2016, approximately five months after his
arrest[.]
6 A-3036-16T
1 Subsection 10. Whether or Not the Crime is
of an Assaultive or Violent Nature, Whether
in the Criminal Act Itself or the Possible
Injurious Consequences of Such Behavior. This
factor is not applicable in the instant case.
Subsection 11. Consideration of Whether or
Not Prosecution Would Exacerbate the Social
Problem that led to the Applicant's Criminal
Act. This factor is not applicable in the
instant case.
Subsection 12. The History of the Use of
Physical Violence Toward Others. The
defendant has no history of the use of
physical violence toward others.
Subsection 13. An Involvement With Organized
Crime. This factor is not applicable in the
instant case.
Subsection 14. Whether or Not the Crime is
of Such a Nature that the Value of Supervisory
Treatment Would be Outweighed by the Public
Need for Prosecution and Subsection 17.
Whether or Not the Harm Done to Society by
Abandoning Criminal Prosecution Would
Outweigh the Benefits to Society From
Channeling an Offender Into a Supervisory
Treatment Program. Channeling this particular
offender into the PTI program would harm
society by sending a message which would
minimize and trivialize the severity of
defendant's actions. Any benefit to the
defendant from acceptance into the PTI program
would be far outweighed by the harmful message
sent to society that such offenses merit a
diversionary program.
7 A-3036-16T1
Subsection 15. Whether or Not the Applicant's
Involvement With Other People in the Crime
Charged or in Other Crime is Such That the
Interest of the State Would Best be Served by
Processing the Case Through Traditional
Criminal Justice System Procedures. This
factor is not applicable in the instant case.
Subsection 16. Whether or Not the Applicant's
Participation in Pretrial Intervention Will
Adversely Affect the Prosecution of
Codefendants. This factor is not applicable
in the instant case.
These factors taken as a whole, and especially
subsections
N.J.S.A. 2C:43-12(e)1, 2, 7, 8,
14, and 17, strongly weigh against the
defendant's enrollment in PTI. While the
defendant has no prior indictable record, his
actions constituted a continuing pattern of
antisocial activity and the seriousness of the
offense and the public need for prosecution
outweigh the positive factors that have been
presented. See State v. Kraft, 265 N.J.
Super. 106, 116-17 (App. Div. 1993).
Therefore, the State must reject [defendant]
from PTI.
Defendant appealed the denial of his PTI application. In a
written decision, the judge found, with respect to factors one and
two, that the quantity of the drugs involved was small and "the
buys were solicited by the State and the State controlled the
meeting place." As to factor three, the judge found defendant
appeared remorseful and his desire to turn his life around "would
be impeded if any one of these charges were to show on his record."
The judge expressed "concern" over the State's weighing of
factors five, eight and nine. The judge instead found it was not
8 A-3036-16T1
a negative factor that defendant had not previously been subject
to supervisory treatment, and defendant's two drug sales, evidence
tampering, and three municipal convictions did not constitute a
pattern of criminal behavior. The judge reasoned that defendant's
attempt to swallow marijuana at the time of his arrest was
"demonstrative of his addiction" and his "prior record only
establishes the continued control [his] addiction has on him."
The judge found "[t]he State was correct to argue under
[f]actor [seven] . . . that society has a strong interest in
deterring individuals from such conduct[,]" but also "society has
a strong interest in rehabilitating addiction." Disagreeing with
the State that factor eleven did not apply, the judge "[found]
that not only does it apply, but PTI supervision would enhance
[d]efendant's motivation for rehabilitation and completion of the
program." In a similar vein, the judge also determined that
factors fourteen and seventeen weighed in defendant's favor. The
judge explained:
While there is a need to demonstrate that the
State takes prosecution of all offenses
seriously, that does not require prosecution
of every defendant when there is an option to
divert a defendant into a supervisory
treatment program when that defendant has a
need, like addiction. There is a public
interest and need in the rehabilitative aspect
of PTI. Not only does PTI offer
rehabilitation, but it offers an incentive to
be successful in that rehabilitation.
9 A-3036-16T1
Ultimately, the judge viewed the State's position as
"unsustainable as it was reflexive in nature, [and] premised upon
a failure to give due and proper weight to all the factors to be
assessed . . . [and] in several instances to conduct the requisite
individualized assessment necessary[.]" Based on these findings,
the judge concluded "[t]here exists clear and convincing evidence
that the State abused its discretion in denying [d]efendant
admission into PTI." This appeal followed.
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)). Accordingly, "a PTI
determination requires that the prosecutor make an individualized
assessment of the defendant considering his or her 'amenability
to correction' and potential 'responsiveness to rehabilitation.'"
Id. at 621-22 (quoting State v. Watkins,
193 N.J. 507, 520 (2008)).
The scope of judicial review of the prosecutor's rejection
of PTI is "severely limited." State v. Negran,
178 N.J. 73, 82
(2003). Deciding whether to permit diversion to PTI "is a
quintessentially prosecutorial function." State v. Wallace, 146
10 A-3036-16T
1 N.J. 576, 582 (1996). "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 Kraft, supra,
265 N.J. Super. at 111-12). Accordingly,
courts give prosecutors "broad discretion" in determining whether
to divert a defendant into PTI. State v. K.S.,
220 N.J. 190, 199
(2015). Thus, courts must "accord[] enhanced deference to a
prosecutor's decision in respect of a PTI application." State v.
Brooks,
175 N.J. 215, 225 (2002).
The PTI statute requires prosecutors to consider a non-
exclusive list of seventeen criteria.
N.J.S.A. 2C:43-12(e). These
criteria "include 'the details of the case, defendant's motives,
age, past criminal record, standing in the community, and
employment performance[.]'" Roseman, supra,
221 N.J. at 621
(quoting Watkins, supra,
193 N.J. at 520).
"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 omitted). "A patent and
gross abuse of discretion is defined as a decision that 'has gone
so wide of the mark sought to be accomplished by PTI that
11 A-3036-16T1
fundamental fairness and justice require judicial intervention.'"
Ibid. (citation 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 (2014) (quoting State v. Bender,
80 N.J. 84, 93
(1979)), certif. denied,
222 N.J. 18 (2015).
Even if a "'defendant can show that a prosecutorial veto (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,'" that
constitutes only "'an abuse of discretion.'" Wallace, supra,
146 N.J. at 583. "A 'patent and gross abuse of discretion' is more
than just an abuse of discretion as traditionally
conceived[.]" Id. at 582-83. "'In order for such an abuse of
discretion to rise to the level of "patent and gross," it must
further be shown that the prosecutorial error complained of will
clearly subvert the goals underlying Pretrial Intervention.'" Id.
at 583 (citation omitted). "We must apply the same standard as
the trial court," and review the "judge's reversal of the
prosecutor's decision de novo." State v. Waters,
439 N.J. Super.
215, 226 (App. Div. 2015).
12 A-3036-16T1
Guided by these standards, we conclude the judge erred in
ordering defendant's admission into PTI over the prosecutor's
objection. We are convinced from our review of the record that
the prosecutor considered, weighed, and balanced all of the
requisite factors, including those personal to defendant as well
as the facts and circumstances of the offense.
The prosecutor not only gave significant emphasis to the
circumstances of the offense, but also considered defendant's
individual characteristics. The prosecutor considered mitigating
factors personal to defendant, such as his age, background and
motivation to complete the PTI program and turn his life around.
The prosecutor did not consider inappropriate factors.
Contrary to defendant's argument, the prosecutor stated he would
not weigh defendant's refusal to submit to a urine test against
him, and that refusal played no role in the prosecutor's ultimate
analysis.
The judge erred by interjecting himself into the process of
weighing the applicable PTI factors, and predicated his decision
upon his own assessment of those factors. Contrary to the judge's
determination, the prosecutor's assessment of factors eight and
nine was not inaccurate. Rather, the prosecutor's position that
defendant's two drug sales, tampering with evidence, subsequent
marijuana use, and prior municipal convictions, established a
13 A-3036-16T1
pattern of antisocial behavior, finds clear support in the record.
The judge also misread factor eleven to refer to rehabilitation
when by its terms that factor focuses on whether "prosecution
would exacerbate the social problem which caused defendant's
criminal act."
Here, defendant was charged with a number of offenses spanning
three different dates, including distributing marijuana in a
school zone. As the State points out, "[t]he school zone statute
creates the presumption against PTI[.]" State v. Caliguiri,
158 N.J. 28, 43 (1999).1 Defendant responds that New Jersey's drug
laws have undergone substantial changes since 1999, thus rendering
the holding in Caliguiri inapplicable to the present case.2 We
need not decide the issue, since in any event the judge improperly
discounted defendant's drug sales and their location because they
were controlled purchases. Even if the undercover officer(s) made
the purchases and chose the location, defendant was willing to
sell the drugs at that location. In his brief to the trial court,
1
The State did not present this argument to the trial court and
consequently the judge did not rule on the issue.
2
Defendant also argues that "marijuana's classification as a
Schedule I substance, pursuant to
N.J.S.A. 24:21-5, can no longer
be maintained in light of the adoption of the New Jersey
Compassionate Use Medical Marijuana Act,"
N.J.S.A. 24:6I-1 to -
16. However, the Medical Marijuana Act has not yet resulted in a
change in the classification of marijuana, and in any event the
court did not cite it as a basis for its decision.
14 A-3036-16T1
defendant conceded that factor seven, "[t]he needs and interests
of society," bore "considerable weight against [him]." Moreover,
the judge relied on the importance of addressing defendant's
addiction, but defendant never contended he was addicted, or that
addiction caused him to make the sales or swallow the marijuana.
While reasonable minds could differ in analyzing and
balancing the applicable factors in this case, judicial
disagreement with a prosecutor's reasons for rejection does not
equate to a clear error of judgment or an abuse of discretion by
the prosecutor. State v. DeMarco,
107 N.J. 562, 566-67 (1987).
In this instance, the judge improperly substituted his own
discretion for that of the prosecutor. Also, defendant did not
show and the judge did not find that the prosecutor's decision
would clearly subvert the goals underlying PTI. Thus, the
prosecutor's rejection of defendant's PTI application was not a
patent and gross abuse of discretion. We are therefore constrained
to reverse and remand for further proceedings on the indictment.
Reversed and remanded.
15 A-3036-16T1
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