STATE OF NEW JERSEY v. NATHAN T. MILLER
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1125-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
V.
NATHAN T. MILLER,
Defendant-Appellant.
Submitted January 22, 2018 - Decided February 5, 2018
Before Judges Sabatino and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
15-06-0310.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (David M. Galemba,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Nathan Miller appeals from the trial court's
October 7, 2016 order denying his motion for admission into the
pretrial intervention ("PTI") program over the prosecutor's
objection. Defendant primarily contends the prosecutor and the
court improperly considered his prior record, much of which
involves out-of-state dispositions. He also contends the
prosecutor improperly relied on mere arrests or other dispositions
that did not result in convictions. Because defendant's criminal
history is unclear from the record, we vacate the trial court's
order and remand for further consideration.
I.
We discern the following facts from the record. Between
March 29, 2015 and April 6, 2015, defendant entered a garage in
Carneys Point without permission, and stole four tire rims.
Defendant subsequently admitted he stole the rims, and other items,
and sold them in Delaware. Defendant was charged in a Salem County
indictment with third-degree burglary,
N.J.S.A. 2C:18-2, third-
degree theft,
N.J.S.A. 2C:20-3, and fourth-degree criminal
trespass,
N.J.S.A. 2C:18-3(a).
Defendant applied for PTI. At the time of his application,
defendant was twenty-one years old. A senior probation officer
rejected defendant's application, and an assistant prosecutor
2 A-1125-16T3
agreed.1 In his rejection notice, the probation officer cited
defendant's "multi-state court history with arrests/convictions
in the State of Delaware and State of Pennsylvania." The
probation officer referenced an "inquiry" into the Delaware
charges that revealed three juvenile adjudications in 2011, and
three adult convictions for: (1) unauthorized use of a motor
vehicle in 2013; (2) a violation of probation in 2015; and
(3) shoplifting in 2015. The probation officer did not reference
defendant's computerized criminal history ("CCH") that also
includes a violation of probation for an unspecified conviction,
with an arrest date of October 10, 2013, and a disposition date
of November 7, 2013.
The probation officer cited defendant for having three prior
convictions in Pennsylvania, none of which is listed in defendant's
CCH.2 Nor did the probation officer reference any inquiry about
the charges in Pennsylvania. Nevertheless, his rejection notice
1
Although there is no indication in the record that defendant
objected to the denial of his application by a probation officer
and an assistant prosecutor, we note "[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 and consent of the prosecutor."
State v. Roseman,
221 N.J. 611, 621 (2015).
2
In his opposition brief to the trial court, and at the PTI hearing
before the motion judge, the assistant prosecutor conceded that
the disposition of arrests listed on defendant's Pennsylvania CCH
record are "unreported."
3 A-1125-16T3
indicates defendant pled guilty, on March 3, 2016, to theft by
unlawful taking, and use or possession of drug paraphernalia.
The probation officer's letter next indicates defendant was
sentenced, in Pennsylvania, to a probationary term of six months
and a term of confinement of seventy-five days to twenty-three
months. Inexplicably, the probation officer's rejection notice
then states that, on September 12, 2013, defendant was sentenced
to eighteen months' probation for receiving stolen property and
violating probation. According to the probation officer, on April
19, 2016, defendant was resentenced to "confinement with a
max[imum] of [eighteen] months."
The assistant prosecutor found one factor disfavored
defendant's acceptance into the PTI program, that is, "the
applicant's criminal and penal violation[s] and the extent to
which he may present a substantial danger to others." See
N.J.S.A.
2C:43-12(e)(9). The assistant prosecutor reiterated defendant's
criminal record as set forth in the probation officer's notice,
with the exception of the violation of probation in Pennsylvania.
In sum, the assistant prosecutor cited defendant's prior
convictions and the nature of the present offense as his reasons
for denying defendant's admission into the PTI program. The
correspondence is devoid of any reference to defendant's age or
employment status. It is unclear whether the assistant prosecutor
4 A-1125-16T3
reviewed and considered defendant's CCH, but the rejection letter
does not include defendant's adult arrests, juvenile arrests or
juvenile adjudications.3
Defendant appealed the denial of his PTI application to the
trial court. In his brief,4 defense counsel contended the
prosecutor had merely parroted the language of
N.J.S.A. 2C:43-
12(e)(9), and failed to demonstrate defendant posed a substantial
danger to others. Defendant contended further he had no adult
convictions in New Jersey, Delaware, or Pennsylvania. Finally,
defendant claimed the State did not consider his age and employment
status at the time of his application.
The State's opposition brief, unlike its earlier rejection
letter,5 referenced defendant's "several arrests and convictions
out of Delaware and Pennsylvania." The State not only listed
defendant's adult arrests, but also what it characterized as his
3
Defendant's CCH was not provided to defendant until the PTI
hearing.
4 Pursuant to Rule 2:6-1(a)(2), defendant appropriately supplied
us with the parties' briefs filed in the trial court because "the
issues raised before the trial court . . . are germane to the
appeal."
5
For reasons unknown, the State's trial brief references its
rejection letter as having denied defendant's PTI application "due
to his past convictions and multiple arrests in Pennsylvania and
Delaware." (emphasis added). However, the State's rejection
letter does not mention defendant's arrests.
5 A-1125-16T3
"large number of contacts with the criminal justice system as a
juvenile in the State of Delaware." Citing the public policy of
the PTI statute, the State rejected defendant because of his adult
convictions in Delaware for unlawful use of a motor vehicle and
violation of probation, the latter of which demonstrates defendant
"is not amenable to rehabilitative treatment that PTI offers."
At the PTI hearing, defendant argued initially he did not
have any felony convictions, and his violation of probation stemmed
from a juvenile adjudication. After reviewing defendant's CCH
record for the first time at the hearing, defense counsel requested
certified copies of judgments of conviction ("JOC"). However, the
hearing proceeded, nonetheless. Defendant acknowledged his
conviction in Delaware for unauthorized use of a motor vehicle,
but was unsure whether that offense was equivalent to a disorderly
persons offense or indictable conviction in our state. Maintaining
defendant did not have any prior indictable convictions, defense
counsel again requested a certified JOC for the theft offense.
Again, the hearing nevertheless proceeded.
The State argued defendant's Delaware theft conviction was
equivalent to a fourth-degree joyriding offense in New Jersey.6
6
However, the State's appellate brief indicates the Delaware
statute is a class A misdemeanor, "punishable by up to one year
incarceration." See Del. Code Ann. tit. 11 ยง 4206 (2018).
6 A-1125-16T
3 N.J.S.A. 2C:20-10(b). Conceding for the sake of argument that the
conviction was equivalent to a disorderly persons offense, the
State argued "he still has multiple contacts with the system,"
including a juvenile record and violation of probation.
Although the State had earlier concluded defendant's
violation of probation was sufficient to deny defendant's
admission into the PTI program, the assistant prosecutor argued
to the trial court, "based on his multiple number of arrests,
[his] relatively young age, he [i]s not even [twenty-one] yet,
there [are] two convictions[, t]he State feels that we were
appropriate in denying him from PTI." (emphasis added).
Placing "little weight" on defendant's contacts with the
criminal justice system that did not result in convictions, the
motion judge found those contacts did not have "any major impact
on the [p]rosecutor's decision." Rather, the judge concluded
defendant's violation of probation as an adult was "a substantial
factor, which the State correctly took into consideration."
On October 14, 2016, after the assistant prosecutor rejected
defendant's PTI application, and the trial court denied his appeal,
defendant pled guilty to criminal trespass, as amended to a
disorderly persons offense,
N.J.S.A. 2C:18-3(a), without waiving
his right to file the present appeal of the PTI ruling. He was
7 A-1125-16T3
sentenced on the same day to a two-year term of probation
"concurrent to his Pennsylvania probation." This appeal followed.
On appeal, defendant raises a single point for our
consideration:
THE PROSECUTOR'S REJECTION OF [DEFENDANT'S]
PTI APPLICATION CONSTITUTES A PATENT AND GROSS
ABUSE OF DISCRETION.
II.
We generally afford prosecutors "broad discretion to
determine if a defendant should be diverted." State v. K.S.,
220 N.J. 190, 199 (2015). "[T]o overturn a prosecutor's decision to
exclude a defendant from the program, the defendant must clearly
and convincingly show that the decision was a patent and gross
abuse of . . . discretion." Id. at 200 (internal quotation marks
and citation omitted).
However, "[a] trial court's interpretation of the law and the
legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). Further,
"[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
8 A-1125-16T3
or the prosecutor should it deem either to have been in error."
Id. at 105; see also K.S.,
220 N.J. at 199.
In K.S., the Court held a PTI applicant's "prior dismissed
charges may not be considered for any purpose" where the facts
related to the arrest are in dispute, or have not been determined
after a hearing. K.S.,
220 N.J. at 199. (emphasis added). A PTI
rejection "must reflect only a proper consideration of the
identified information . . . ." Id. at 198 (internal quotation
marks and citation omitted). The prosecutor may not weigh
inappropriate factors, or ignore appropriate factors. Id. at 200.
To meet the "gross and patent abuse of discretion" standard
to justify supplanting the prosecutor's decision, a defendant must
satisfy one of three criteria and must also show the prosecutor's
decision undermines the purpose of PTI.
Ordinarily, an abuse of discretion will be
manifest if 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. 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
[p]retrial [i]ntervention.
[State v. Bender,
80 N.J. 84, 93 (1979).
(citation omitted).]
9 A-1125-16T3
However, when a defendant has not met this high standard for
reversal, but nonetheless has demonstrated the trial court's abuse
of discretion by considering inappropriate factors, a remand may
be appropriate.
When a reviewing court determines the
"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 consideration.
Remand is the proper remedy when, for example,
the prosecutor considers inappropriate
factors, or fails to consider relevant
factors.
[K.S.,
220 N.J. at 200 (quoting State v.
Dalglish,
86 N.J. 503, 509 (1981)).]
As the Court explained, this middle-ground option of a remand
preserves the opportunity for the exercise of the prosecutor's
discretion, while assuring the PTI standards are employed
properly. Ibid.
Applying these principles, we are persuaded the trial court
erred in sustaining the prosecutor's decision, because defendant's
actual criminal history is unclear from the record, and because
the State has been inconsistent in its reliance upon that record.
Specifically, while the State did not consider defendant's arrests
in its initial rejection letter, it considered two purported
convictions in Pennsylvania. However, at oral argument before the
10 A-1125-16T3
trial court, the State conceded the dispositions of these charges
were unknown.
Further, the trial court found the parties disputed whether
defendant's conviction in Delaware for theft of a motor vehicle
is the equivalent of a disorderly persons offense or a fourth-
degree joyriding offense in New Jersey. It is likewise unclear
whether defendant's violation of probation stemmed from this theft
conviction or instead from a juvenile adjudication.
We are not satisfied, therefore, that defendant's violation
of probation "alone," as argued by the State, is sufficient to
deny his admission into the PTI program. Moreover, probationers
are not automatically precluded from entry into the PTI program.
See Guidelines for Operation of Pretrial Intervention in New
Jersey, Pressler & Verniero, Current N.J. Court Rules, Official
Comment to Guideline 3, following R. 3:28 at 1293-94 (2018)
(setting forth "a policy permitting probationers and parolees to
enter PTI programs," subject to consultation with their respective
supervisory authorities).
We also reject the State's contention that, even if K.S. were
not strictly followed, defendant's PTI rejection should be
affirmed because the State did not give great weight to his
dismissed or unproven charges. While the assistant prosecutor
repeatedly argued defendant's prior adult conviction and violation
11 A-1125-16T3
of probation were sufficient to reject his application,
defendant's multiple arrest record was repeatedly mentioned during
oral argument.
We will not substitute our judgment for that of the prosecutor
in ultimately determining whether to admit defendant into the PTI
program. Nor do we intend to preclude the prosecutor from
considering defendant's prior record, once determined, as properly
limited by K.S. Indeed, we recognize defendant has prior juvenile
adjudications. However, we are constrained to remand for
reconsideration so the prosecutor may properly determine and weigh
defendant's prior record along with all other applicable factors,
including defendant's age and employment status.7 Pressler &
Verniero, Guideline 3, following R. 3:28 at 1290;
N.J.S.A. 2C:43-
12(3).
Vacated and remanded for reconsideration by the prosecutor.
If defendant is dissatisfied with the prosecutor's decision on
reconsideration, he may file a new motion for relief with the
trial court. We express no views on the appropriate outcome of
the remand. We do not retain jurisdiction.
7
In order to properly determine defendant's out-of-state record,
in this case, the State should obtain certified copies of any
convictions.
12 A-1125-16T3
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