STATE OF NEW JERSEY v. VINCENT J. DEFILIPPO

NOT FOR PUBLICATION WITHOUT THE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-5456-14T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

VINCENT J. DEFILIPPO,

     Defendant-Appellant.
__________________________________

              Submitted May 31, 2017 – Decided December 11, 2017

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Indictment No.
              12-03-0257.

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

              Fredric M. Knapp, Morris County Prosecutor,
              attorney for respondent (Erin Smith Wisoff,
              Supervising Assistant Prosecutor, on the
              brief).

        The opinion of the court was delivered by

OSTRER, J.A.D.

        After    the   prosecutor     rejected     his   application     for       the

Pretrial Intervention Program (PTI), and the trial court denied
his appeal, defendant Vincent DeFilippo pleaded guilty to fourth-

degree resisting arrest, and the court sentenced him to one year

of probation.      Defendant now appeals the trial court's order

denying his PTI appeal.    We vacate the court's order and remand

to the prosecutor for reconsideration.

     According to police reports, defendant was fifty-one years

old and living with his mother on the date of the offense.

Defendant's mother reported to police that defendant returned home

intoxicated — his blood alcohol content was later measured at .36

percent — and refused to return her car keys. She asked the police

to retrieve her keys from him.

     Officers who responded to the home found defendant to be

belligerent and uncooperative.    He denied he possessed the keys,

although an officer heard him jingle them in his pockets.           When

the officer attempted to retrieve the keys, defendant forcibly

pushed him away.    As police attempted to arrest him, he kicked an

officer.   Police    pepper-sprayed   him.   He   still   impeded   the

officers' efforts, first going limp, then flailing about, knocking

an officer into furniture as he was escorted out of the house.

Defendant was ultimately indicted and charged with two counts of

third-degree aggravated assault by committing simple assault on

law enforcement officers, 
N.J.S.A. 2C:12-1(b)(5)(a), and one count

of third-degree resisting arrest, 
N.J.S.A. 2C:29-2(a)(3).

                                  2                            A-5456-14T4
       Defendant applied for PTI.         A probation officer recommended

denial, and the prosecutor agreed.1          The probation officer noted

that   this    case   was   defendant's    seventh   involvement   with   the

criminal justice system, although all led to dismissals except for

a contempt charge that was transferred to Family Court and led to

a probationary sentence over twelve years earlier.             The probation

officer recounted the facts of the new case, and recommended denial

of PTI "based on the violent nature of the instant offense and the

injurious consequences of his behavior . . . ."

       In his brief opposing defendant's trial court appeal, the

assistant      prosecutor     defended     the   denial   of    defendant's

application.     Echoing the probation officer's reasoning, the State

explained:

                   The State likewise objects to admitting
              this defendant into the PTI program. A review
              of the nature and facts of this case shows
              that this applicant is inappropriate for PTI.
              
N.J.S.A. 2C:43-12(e)(1) [("The nature of the
              offense")] and (2) [("The facts of the
              case")]. Defendant engaged in conduct which

1
  Although the State contends that the application "was denied by
the Criminal Division," the record includes only a probation
officer's   initial   recommendation,   without  a   supervisor's
signature, or evidence of the Criminal Division Manager's review.
However, "[p]ursuant to the procedures and guidelines established
by Rule 3:28 and 
N.J.S.A. 2C:43-12, acceptance into PTI is
dependent upon an initial recommendation by the Criminal Division
Manager . . . ."    State v. Roseman, 
221 N.J. 611, 621 (2015).
Furthermore, neither party provided us with the prosecutor's
letter rejecting defendant's application. We rely instead on the
State's trial court brief for its reasons for rejection.

                                      3                              A-5456-14T4
           could have caused widespread public harm and
           [the] State is cognizant of the needs and
           interests of society. 
N.J.S.A. 2C:43-12e(7)
           [("The needs and interests of the victim and
           society")].    Defendant also engaged in a
           continuing pattern of anti-social behavior.
           The instant offense is his seventh arrest.
           Although defendant only has one disorderly
           persons conviction, defendant continues to
           engage in the same behavior despite the
           consequences. 
N.J.S.A. 2C:43-12e(8) [("The
           extent   to  which   the  applicant's  crime
           constitutes part of a continuing pattern of
           anti-social behavior")].

      In a thorough and cogent oral opinion, the trial judge

reviewed the State's allegations, and, citing State v. Leonardis,


73 N.J. 360 (1977), and other authority, found defendant failed

to establish by clear and convincing evidence that the prosecutor's

denial of PTI constituted a gross and patent abuse of discretion.

Applying State v. Bender, 
80 N.J. 84, 93 (1979), the judge stated

that defendant failed to show that the prosecutor did not consider

all   relevant   factors;   considered   irrelevant   or   inappropriate

factors; or made a clear error of judgment.

      In particular, the court addressed defendant's argument that

the prosecutor inappropriately relied upon his history of arrests

that did not lead to convictions.       The court noted that the "State

drew the limited conclusion that the defendant has engaged in a

continuing   pattern   of   antisocial    behavior   and   his   dismissed

charges   have   not   deterred   him     from   committing      subsequent


                                   4                                A-5456-14T4
offenses."   Relying on State v. Brooks, 
175 N.J. 215, 229 (2002),

the court held that the prosecutor was permitted to consider

dismissed offenses, but solely in connection with whether those

prior arrests should have deterred defendant from committing a new

offense.

     Defendant    raises     the   following   contentions   for   our

consideration:

           POINT I

           THE TRIAL COURT'S ORDER DENYING DEFILIPPO'S
           PTI APPEAL MUST BE REVERSED.

           A.   In Light Of The Circumstances Surrounding
           DeFilippo's Arrest, Including His Severe
           Intoxication, The Prosecutor's Heavy Reliance
           On 
N.J.S.A. 2C:43-12e(1), (2), (7) and (10)
           Was Inappropriate.

           B.   In Finding That PTI Was Not A Sufficient
           Sanction To Deter DeFilippo From Committing
           Future Crimes, The Prosecutor Inappropriately
           Considered DeFilippo's Dismissed Charges, And
           Failed To Consider 
N.J.S.A. 2C:43-12e(6), Even
           Though There Was Ample Support In The Record
           To Support That Factor.

     The principal issue before us is whether the prosecutor

impermissibly weighed defendant's prior arrests that did not lead

to convictions.      We are constrained to vacate the trial court's

order, and to remand for the prosecutor to reconsider defendant's

PTI application without regard to his prior arrests that did not

lead to convictions.       We do so because, after the trial court's


                                    5                         A-5456-14T4
decision, but before his appeal to this court, the Supreme Court

held that a prosecutor     evaluating a PTI application may          not

consider prior dismissed charges unless the underlying facts are

undisputed, or have been determined after a hearing.          State v.

K.S., 
220 N.J. 190, 199 (2015).

       The Court expressly "disapprove[d]" statements in Brooks, 
175 N.J. at 229, that permitted a prosecutor to rely on such prior

arrests as evidence that a defendant was undeterred from offending.

K.S., 
220 N.J. at 199.    Thus, K.S. established a break with prior

precedent, requiring us to determine, absent direction from the

Court, whether we should apply K.S. retroactively to defendant's

case.    See State v. Knight, 
145 N.J. 233, 251 (1996) (describing

when a "new rule" triggers a retroactivity analysis).         Here, we

must    consider   only   whether       "pipeline   retroactivity"     is

appropriate, as defendant's case was pending when K.S. was decided.

See Knight, 
145 N.J. at 249 (describing forms of retroactivity).

       We must weigh three factors: "(1) the purpose of the rule and

whether it would be furthered by a retroactive application, (2)

the degree of reliance placed on the old rule by those who

administered it, and (3) the effect a retroactive application

would have on the administration of justice."       Id. at 251 (quoting

State v. Nash, 
64 N.J. 464, 471 (1974)).



                                    6                           A-5456-14T4
       The first and often "pivotal" factor supports retroactivity

when the purpose of the rule is to enhance "the reliability of the

truth-finding process . . . ."       Ibid.    That is the case here.        A

prosecutor may inaccurately assess a defendant's amenability to

diversion    if    dismissed     charges     are    deemed    evidence     of

incorrigibility.     The Supreme Court noted that "deterrence is

directed at persons who have committed wrongful acts," and a

prosecutor may not infer guilt from dismissed charges.            K.S., 
220 N.J. at 199; see also Schware v. Bd. of Bar Exam'rs of N.M., 
353 U.S. 232, 241 (1957) ("The mere fact that a man [or woman] has

been arrested has very little, if any, probative value in showing

that    he   [or    she]   has     engaged     in    any     misconduct.");

Michelson v. United States, 
335 U.S. 469, 482 (1948) (noting that

an arrest "happens to the innocent as well as the guilty"); United

States v. Berry, 
553 F.3d 273, 282-84 (3d Cir. 2009) (noting the

majority view of courts of appeal that sentencing courts may not

base decisions "on a bare arrest record" because, without more,

it is not proof of wrongdoing).

       The remaining factors are entitled to lesser weight, given

the clear purpose of the K.S. rule.        "The second and third factors

come to the forefront of the retroactivity analysis when the

inquiry into the purpose of the new rule does not, by itself,

reveal whether retroactive application of the new rule would be

                                    7                               A-5456-14T4
appropriate." Knight, 
145 N.J. at 252. We recognize, with respect

to the second factor, that prosecutors and the courts relied on

Brooks to infer that PTI applicants were undeterred from offending,

based on records of dismissed charges.               As for the third factor,

giving K.S. pipeline retroactivity would no doubt burden the system

by requiring reconsideration of old cases.              Yet, it would enhance

the   administration   of    justice,      by   preventing      defendants    from

suffering     undeserved    negative       consequences      of    unproved      or

dismissed   charges.        On   balance,       we   conclude     that   pipeline

retroactivity is warranted.

      We also reject the State's contention that even if K.S.

applies, the PTI rejection should be affirmed because the State

did not give great weight to this factor.              We shall not speculate

as to whether the State would have reached the same result, had

it ignored defendant's prior dismissed charges and considered only

a single, twelve-year-old disorderly persons conviction.                 Notably,

the record lacks an alternative basis for the State's conclusion

that defendant's current charges were part of "a continuing pattern

of anti-social behavior."

      The Court in K.S. held that when the State relies upon an

inappropriate factor — as it did here — the State engages in an

abuse of discretion, as distinct from a patent and gross abuse of

discretion.     
220 N.J. at 200.           Under such circumstances, the

                                       8                                  A-5456-14T4
appropriate       remedy    is    a   remand      to   the    prosecutor      for

reconsideration without regard to the impermissible factor.                Ibid.

That preserves the prosecutor's discretion, while assuring that

PTI standards are properly employed.           Ibid.

     The remainder of defendant's arguments lack sufficient merit

to warrant discussion in a written opinion.             R. 2:11-3(e)(2).       We

only add a brief comment regarding his argument that the prosecutor

failed to consider his amenability to treatment under factor 6 —


N.J.S.A. 2C:43-12(e)(6) — "[t]he 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 . . . ."         Defendant presented no evidence that he was

prepared to seek and comply with substance abuse treatment.

     Vacated and remanded for reconsideration.               We do not retain

jurisdiction.




                                       9                               A-5456-14T4