STATE OF NEW JERSEY v. MARK A. HIGHSMITH

NOT FOR PUBLICATION WITHOUT THE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-0521-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARK A. HIGHSMITH,

     Defendant-Appellant.
____________________________

                    Submitted November 8, 2018 - Decided November 29, 2018

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 15-08-1186.

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

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Svjetlana Tesic, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Defendant appeals from an order denying his admission into a pretrial

intervention (PTI) program.     We reverse and remand for the prosecutor to

reconsider defendant's PTI application.

      This case involves a city on edge in the days following the July 13, 2014

shooting deaths of a police officer and the man who shot the officer. The two

deaths inflamed tensions among city residents, who built a shrine at the location

where the man was killed. City police officers were on high alert following the

shootings.

      The day after the shootings, defendant was in the area of the shrine,

meeting friends for drinks. The bar where defendant met his friends was located

at the same intersection as the shrine.

      Defendant had three different encounters with the police in the early

morning hours of July 15, 2014. In the first encounter, defendant was walking

with a friend and drinking alcohol from an open container. The two were

stopped by the police, asked to produce identification, searched, and then told

to go home.

      The second encounter between police and defendant occurred near the

shrine. According to defendant and his friend, the officers "roughed them up,"

cursed at them, ordered them to kneel, and forced the two men to watch while


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officers desecrated and dismantled the shrine. This encounter with the police

was captured on videotape. The videotape shows defendant walking past the

shrine over the course of an hour with his friend, two females, and another male.

During the course of walking the streets that evening, defendant picked up a

fence post with a point from a nearby construction site. Defendant explained he

took the fence post to fix a door frame in his home.

      The third encounter between defendant and the police occurred around

1:30 in the morning. Video from a surveillance camera showed a police vehicle,

traveling in the wrong direction, stop in front of defendant and his friend.

Defendant thought the police truck would pass without incident. However, the

officers in the truck were the same officers who stopped defendant during the

first encounter.

      Defendant saw the officer in the passenger seat of the truck holding a gun.

According to defendant, he was afraid he would be shot by the officer. As a

result, he hurled the fence post at the truck. An officer, struck in the head by

the fence post, suffered a cut. The officer then fired two shots through the door

of the truck. When he heard the shots, defendant turned and ran from the police.

Defendant was shot in the back, thigh, shoulder, and forearm by another officer.




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Defendant was taken to the hospital to be treated for his gunshot wounds , and

remained hospitalized for eight months.

      Defendant was arrested and charged with several offenses, including

third-degree aggravated assault with a deadly weapon,  N.J.S.A. 2C:12-1(b)(2).

Defendant pleaded guilty to that charge.

      After his guilty plea, but prior to sentencing, defendant applied for PTI.

By order dated December 9, 2016, the PTI judge permitted defendant to apply

for PTI out of time.1

      In a report dated January 10, 2017, the assistant criminal division manager

(ACDM) of Hudson County recommended defendant be admitted into the PTI

program. In the ACDM's recommendation, she wrote:

            Taking into consideration the defendant's nominal
            criminal history, the count and degree the defendant is
            pleading guilty to being in the third degree range, and
            the leaps and bounds he has made personally and
            professionally by taking a number of positive steps
            following his involvement with the present pending
            offense coupled with the minimal injury the victim
            suffered as opposed to the overwhelming injury and
            pain the defendant endured as a result of his actions,
            this officer respectfully recommends the defendant be
            afforded the opportunity to participate in the Pretrial

1
  On appeal, the State raises a procedural challenge to the timing of defendant's
PTI application. Because the issue was not presented to the PTI judge, we
decline to address this argument. R. 2:10-2.


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            Intervention Program and continue on the positive path
            he has begun.

      Despite the ACDM's recommendation, the prosecutor denied defendant's

admission to PTI.      In considering the criteria for enrollment in PTI, the

prosecutor reviewed the factors set forth in  N.J.S.A. 2C:43-12(e) and Rule 3:28.

See also Guidelines for Operation of Pretrial Intervention in New Jersey

(Guidelines), Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i)

(2017).   The prosecutor found several factors weighed against defendant's

admission to the program, focusing on the offense, the facts of the case, and the

"assaultive and violent nature of [d]efendant's crime."         According to the

prosecutor, "[c]onsidering the extraordinarily high number of police officers

being indiscriminately executed in the line of duty, there is a strong public need

for prosecution of this case." Further, the prosecutor explained, "deterring the

assault of police officers is a strong victim and societal interest." The prosecutor

concluded, "[a]dmission into PTI after such a horrifying assault on public

servants would minimize the seriousness of [d]efendant's crime, and perhaps

even encourage more assaults."

      Defendant appealed the prosecutor's denial of his PTI application. A

hearing on defendant's PTI request was held on April 6, 2017. During the

hearing, the PTI judge expressed that she might have reached a different

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determination regarding defendant's application.    However, the PTI judge

acknowledged she could not substitute her judgment in reviewing the request.

The judge denied the PTI application, finding the prosecutor considered the

relevant factors and defendant's rejection from PTI was not a patent and gross

abuse of discretion.

      Defendant was sentenced on May 18, 2017. A June 6, 2017 judgment of

conviction sentenced defendant to probation for two years.

      On appeal, defendant raises the following arguments:

            POINT I

            THE PROSECUTOR'S DECISION TO OVERRIDE
            THE   CRIMINAL    DIVISION   MANAGER'S
            RECOMMENDATION IN FAVOR OF ADMITTING
            HIGHSMITH TO PTI CONSTITUTED A PATENT
            AND GROSS ABUSE OF DISCRETION.

            A.   The Prosecutor Committed A Clear Error In
            Judgment By Refusing To Reconsider Highsmith's
            Application In Light Of The Documented Account That
            Highsmith Presented Of The Events Leading Up To
            The Offense.

            B.    The    Prosecutor   Considered     Inappropriate
            Factors.

            C.   The Prosecutor's Decision Must Be Reversed
            Because Highsmith's Rejection From PTI Clearly
            Subverts The Goals Underlying Pretrial Intervention.



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             D.    Under The Circumstances Of This Case, There Is
             No Validity To The Prosecutor's Belated Procedural
             Challenge To Highsmith's PTI Application.

             POINT II

             IN THE ALTERNATIVE, THE MATTER SHOULD
             BE REMANDED TO FURTHER ADDRESS
             HIGHSMITH'S CONFLICT-OF-INTEREST CLAIM.

      We afford prosecutors "broad discretion to determine if a defendant

should be diverted." State v. K.S.,  220 N.J. 190, 199 (2015). Our scope of

review is "severely limited[,]" and we address "only the most egregious

examples of injustice and unfairness." State v. Negran,  178 N.J. 73, 82 (2003)

(internal quotations and citation omitted). A defendant rejected from PTI "must

'clearly and convincingly' show that the decision [to deny admission into PTI]

was a 'patent and gross abuse of . . . discretion.'" K.S.,  220 N.J. at 200 (citations

omitted).

      However, "[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). If a "'prosecutor's decision was arbitrary,

irrational, or otherwise an abuse of discretion, but not a patent and gross abuse

of discretion,' the reviewing court may remand to the prosecutor for further




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consideration." K.S.,  220 N.J. at 200 (quoting State v. Dalglish,  86 N.J. 503,

509 (1981)).

      A prosecutor must set forth reasons for rejecting a defendant's application

for PTI. State v. Nwobu,  139 N.J. 236, 248-49 (1995). A prosecutor "may not

simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at

249 (citations omitted). If "the prosecutor considers inappropriate factors," a

remand is proper. K.S.,  220 N.J. at 200.

      Here, the prosecutor did not consider all relevant factors regarding

defendant's PTI application. The prosecutor failed to consider the heightened

tensions among the city's residents and the city's police force subsequent to the

shooting deaths of a police officer and another individual two days before this

incident.

      Further, the ACDM expressed support for defendant's PTI application.

The ACDM highlighted defendant's completion of various work training

programs to improve his job skills subsequent to his arrest. In examining

defendant's prior arrest record, the ACDM noted defendant's "nominal criminal

history," resulting in only one municipal court conviction. The ACDM believed

defendant should "be afforded the opportunity to participate in [PTI] and




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continue on the positive path he has begun."           The prosecutor did not

acknowledge the ACDM's findings in her report.

      Having reviewed the record, we cannot determine whether the

prosecutor's decision was arbitrary or irrational under the unique circumstances

in this case, such that denial of defendant's PTI application constituted a clear

error in judgment. Thus, the appropriate remedy is to remand the matter to the

prosecutor for further consideration of defendant's PTI application.

      On remand, the prosecutor shall follow the Attorney General's

supplemental law enforcement directive "Uniform Statewide Procedures and

Best Practices for Conducting Police-Use-of-Force Investigations" (Directive)

to determine if the prosecutor had a conflict of interest in serving as both the

head of the internal affairs unit investigating the officers' use-of-force in this

case and simultaneously prosecuting defendant's criminal case. The Directive

mandates the county prosecutor, within three days of conducting a use-of-force

investigation, to "determine whether any actual or potential conflict of interest

exists that might undermine public confidence in the impartiality and

independence of the investigation." The county prosecutor "shall report the




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results of the comprehensive conflicts inquiry to the Director."2 The Directive

compels the county prosecutor to update the comprehensive conflicts inquiry so

the Director may "determine whether the interests of justice would best be

served by . . . taking . . . actions as may be needed to ensure the impartiality and

independence of the investigation."

      Prior to reviewing defendant's PTI application on remand, based on the

Directive now in effect, the prosecutor shall provide the Director with an

updated "comprehensive conflicts inquiry" to determine whether the use-of-

force investigation in this case requires reassignment of the investigation to

another county prosecutor's office, recusal of the person in charge of the

investigation, or such other action as may be necessary to safeguard the

impartiality of the investigation

      Reversed and remanded to the prosecutor for reconsideration of

defendant's PTI application consistent with this opinion. We do not retain

jurisdiction.




2
  Pursuant to the Directive, all use-of-force investigations are conducted under
the supervision of the Director of the New Jersey Division of Criminal Justice
(Director).
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