STATE OF NEW JERSEY v. DASEAN K. HARPER
Annotate this CaseNOT 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-1707-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DASEAN K. HARPER,
Defendant-Appellant.
_________________________
Submitted October 11, 2018 - Decided November 13, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 14-02-0056.
Joseph E. Krakora, Public Defender, attorney for
appellant (Joshua D. Sanders, 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 Dasean K. Harper appeals from the Law Division's rejection of
his challenge to the Salem County Prosecutor's Office's (SCPO) denial of his
application for admission to the pre-trial intervention (PTI) program, and from
the judgment of conviction imposing a five-year sentence with a forty-two-
month period of parole ineligibility for his conviction of unlawful possession of
a handgun. We affirm.
I.
During a November 29, 2013 motor vehicle stop of a truck driven by
defendant, police determined he had two outstanding warrants for his arrest.
After being informed about the warrants, defendant advised the police he had a
handgun. The police handcuffed defendant and recovered a handgun in a holster
from the waistband of his pants. The handgun was loaded with four hollow-
point bullets and two other bullets. A grand jury charged defendant in an
indictment with second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b), and fourth-degree unlawful possession of hollow-point bullets,
N.J.S.A. 2C:39-3(f).
Defendant applied for admission to the PTI program. The Criminal
Division Manager recommended against defendant's admission, and the SCPO
rejected the application. On June 6, 2014, the court heard argument on his
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appeal of the rejection decision, and determined defendant failed to demonstrate
the SCPO's decision constituted a patent and gross abuse of discretion. The
court noted defendant's prior Pennsylvania conviction for unlawful possession
of a handgun and further determined there was a presumption against defendant's
admission into the PTI program because he was charged with a second-degree
offense. The court found defendant failed to present clear and convincing
evidence overcoming the presumption.
A jury convicted defendant of second-degree unlawful possession of a
handgun and fourth-degree unlawful possession of hollow-point bullets. On
September 15, 2014, the court imposed a five-year custodial term with a forty-
two-month period of parole ineligibility pursuant to the Graves Act , N.J.S.A.
2C:43-6(c), on his conviction for unlawful possession of a handgun, and a
concurrent 364-day sentence on his conviction for possession of hollow-point
bullets. Defendant appealed.
Seven months after filing his notice of appeal, defendant filed a motion
requesting a limited remand for the trial court to reconsider its denial of his
appeal from the SCPO's rejection of his PTI application. He also filed an
emergent motion requesting bail pending appeal.
A-1707-14T2
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Defendant argued for the first time that his conviction for unlawful
possession of the handgun was illegal because he was entitled to amnesty under
L. 2013, c. 117, which "created a path for people to transfer or surrender firearms
that they possessed unlawfully, during a fixed period of time." State v. Harper,
229 N.J. 228, 236 (2017). In an August 5, 2015 order, we noted the amnesty
defense "was not raised during or after his trial" and ordered a temporary remand
for the trial court to conduct a bail hearing, consider defendant's argument he
was entitled to amnesty and reconsider its denial of defendant's appeal from the
SCPO's rejection of his PTI application.
On remand, the trial court first granted defendant's request for bail
pending appeal. The court subsequently issued orders finding the amnesty
statute, L. 2013, c. 117, applied to the unlawful possession of a handgun charge,
and vacated defendant's conviction on the charge "because the issue of amnesty
was never presented to the finder of fact." The trial court did not reconsider its
denial of defendant's appeal from rejection of his PTI application.
We denied the State's motion for a stay and leave to appeal. The Supreme
Court granted the State's motion for leave to appeal, State v. Harper, 226 N.J.
205 (2016), reversed the trial court's order and reinstated defendant's conviction
for unlawful possession of a handgun, concluding he waived the amnesty
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defense by failing to assert it at trial and otherwise failed to establish he qualified
for amnesty under the statute's express terms, Harper, 229 N.J. at 243. The Court
remanded the matter "to address any outstanding issues." Id. at 244.
On July 13, 2017, we issued a sua sponte order "temporarily remand[ing]
to the Law Division, Criminal Part to reconsider defendant's application for PTI"
in accordance with "our [initial] August 5, 2015 order on defendant's motion for
a limited remand." The Law Division scheduled remand hearings to address the
issue, but in each instance defendant failed to appear.
On March 5, 2018, we issued an order finding that, due to defendant's
failure to make "himself available to participate in the remand proceedings and
[his] list[ing] . . . as an inactive fugitive," the "appellate proceedings have stalled
due to the inability to complete remand proceedings." We vacated those
"portions of [our] July 13, 2017 and August [5], 2015 orders that direct[ed]
temporary remands . . . for the purpose of reconsidering defendant's application
for PTI," and directed the clerk to "issue a scheduling order for the filing of
merits briefs on the remaining issues."1
1
Following the submission of the merits briefs from the State and defendant ,
we requested that the clerk's office inquire of the parties concerning defendant's
fugitive status. In an October 15, 2018 letter, the SCPO advised that defendant
was returned to custody "on or around August 15, 2018," and remains in custody.
A-1707-14T2
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In his merits brief, defendant presents the following arguments for our
consideration:
POINT I
BECAUSE BOTH THE TRIAL COURT AND THE
STATE FAILED TO EVALUATE [DEFENDANT'S]
PTI APPLICATION IN LIGHT OF THE NEW
JERSEY ATTORNEY GENERAL'S SEPTEMBER 24,
2014 "CLARIFICATION OF 'GRAVES ACT' 2008
DIRECTIVE WITH RESPECT TO OFFENSES
COMMITTED BY OUT-OF-STATE VISITORS
FROM STATES WHERE THEIR GUN-POSSESSION
CONDUCT WOULD HAVE BEEN LAWFUL,"
REMAND FOR RECONSIDERATION OF
[DEFENDANT'S] PTI APPLICATION IS
NECESSARY.
POINT II
RESENTENCING IS NECESSARY BECAUSE THE
STATE FAILED TO COMPLY WITH THE NEW
JERSEY ATTORNEY GENERAL'S AUGUST 8, 2014
DIRECTIVE.
II.
Defendant first argues he is entitled to a remand for the court to reconsider
its denial of his appeal from the SCPO's rejection of his PTI application.
Defendant notes that we temporarily remanded the matter for the trial court to
reconsider the rejection of his PTI application in our August 5, 2015 and July
13, 2017 orders, and argues we should do so again. We are not persuaded.
A-1707-14T2
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Defendant never moved for reconsideration of our March 5, 2018 order.
See R. 2:11-6(a). Instead, in his merits brief, defendant attempts to indirectly
obtain reconsideration of the order, arguing we should again grant a temporary
remand for the court to reconsider the SCPO's denial of his PTI application. In
any event, the record is bereft of any evidence supporting defendant's current
remand request. It is undisputed our March 5, 2018 order afforded defendant
the opportunity for a remand hearing to reconsider the denial of his PTI
application, and that he chose not to participate by failing to appear,2 absconding
and becoming a fugitive.
We discern no basis to reconsider the March 5, 2018 order or remand for
a hearing defendant previously opted not to attend in favor of being a fugitive,
and defendant provides none. We therefore reject defendant's argument that we
should temporarily remand for the court to reconsider its denial of defendant's
appeal from the SCPO's rejection of his PTI application.
Defendant also argues the court erred by affirming the SCPO's rejection
of his PTI application. "A determination for suitability and participation in the
2
Defendant claims he could not attend the first scheduled remand hearing
because he was in the emergency room of a hospital. He ignores, however, that
he failed to appear on the rescheduled hearing date. He also does not dispute he
was a fugitive when our March 5, 2018 order was entered.
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PTI program must be made 'under the Guidelines for PTI provided in Rule 3:28,
along with consideration of [the seventeen non-exhaustive] factors listed in
N.J.S.A. 2C:43-12(e).'" State v. Rizzitello, 447 N.J. Super. 301, 311 (App. Div.
2016) (quoting State v. Roseman, 221 N.J. 611, 621 (2015)). However, "PTI is
essentially an extension of the charging decision, [and] therefore the decision to
grant or deny PTI is a 'quintessentially prosecutorial function,'" Roseman, 221 N.J. at 624 (quoting State v. Wallace, 146 N.J. 576, 582 (1996)), over which a
prosecutor has "broad discretion," State v. K.S., 220 N.J. 190, 199 (2015).
A court's review of a prosecutor's decision denying a defendant admission
into PTI is "severely limited" and designed to address "only the 'most egregious
examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003)
(quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). "Trial courts may overrule a
prosecutor's decision to accept or reject a PTI application only when the
circumstances "'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."'" Roseman, 221 N.J. at 624-25 (citations omitted); see also R. 3:28-
6(b)(1).
"We must apply the same standard as the trial court." State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015). We conduct a de novo review of a trial
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court's decision affirming or rejecting a prosecutor's PTI admission decision.
Ibid.
Defendant argues for the first time on appeal that the SCPO erred by
rejecting his PTI application because his application should have been
considered by the SCPO under the Attorney General's "Clarification of 'Graves
Act' 2008 Directive with Respect to Offenses Committed by Out-of-State
Visitors From States Where Their Gun-Possession Conduct Would Have Been
Lawful" (September 24, 2014) (2014 Clarification).3 It is unnecessary to
address the merits of defendant's contention that the 2014 Clarification provides
support for his admission to PTI because the 2014 Clarification did not exist
when the SCPO rejected defendant's application and the court denied defendant's
appeal for the rejection decision. The 2014 Clarification was not promulgated
until September 24, 2014, more than three months after the court heard argument
3 The 2014 Clarification supplemented the "Attorney General Directive to
Ensure Uniform Enforcement of the 'Graves Act'" (October 23, 2008) (2008
Directive), which provided guidance to prosecutors in determining when to
consent to the admission to PTI of defendants charged with second-degree
offenses, such as unlawful possession of handgun. Id. at 8-9. Defendant does
not argue the SCPO erred by failing to apply the 2008 Directive. It is therefore
unnecessary to address the guidelines in the 2008 Directive because defendant
does not contend that either the SCPO or the court erred by either failing to
consider or apply them. See Waters, 439 N.J. at 236 (explaining the guidelines
set forth in the 2008 Directive).
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and denied defendant's appeal from the SCPO's rejection decision on June 6,
2014, and nine days after defendant was sentenced on September 14, 2014.
As we explained in Waters, "the 2014 Clarification is simply a statement
of the current policy of the Attorney General" that "does not change the criteria
for PTI set forth in [ N.J.S.A. 2C:43-12 to -13,] Rule 3:28 or the [PTI]
Guidelines." 439 N.J. Super. at 238-39. "[T]he validity of a trial court's order
regarding PTI must be determined based on the applicable law, not on
subsequent changes in prosecutorial policy." Id. at 239. Changes in the
Attorney General's policy following a prosecutor's denial of a PTI application
does not allow a defendant to "argue the [denial] was invalid" based on the
changes. Ibid. That is, however, precisely what defendant argues here. For that
reason, and because defendant offers no other basis for his challenge to the
SCPO's rejection decision, we are convinced defendant failed to satisfy his
burden of showing the SCPO's rejection decision constituted a patent and gross
abuse of discretion.
Defendant's reliance on the 2014 Clarification further renders unnecessary
the requested remand for reconsideration of the rejection of his PTI application.
As noted, the 2014 Clarification does not support defendant's admission to PTI
because it was promulgated following the rejection of his application and the
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court's denial of his appeal from the rejection. See id. at 238-39. Thus, the
requested remand for the trial court to reconsider the SCPO's rejection of
defendant's PTI application based on the 2014 Clarification would be futile.
Defendant last argues he is entitled to resentencing because the SCPO
failed to comply with an August 8, 2014 Attorney General directive that
prosecutors "refrain from taking any dispositive action or from sentencing any
defendant in any case where a resident of another state brought into New Jersey
a firearm that had been acquired lawfully and that could be carried lawfully by
that visitor in the visitor's home jurisdiction."4 We reject the contention because
it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We offer only the following brief comments.
The August 8, 2014 directive constituted nothing more than an instruction
to the SCPO that did not affect the validity of the court's sentencing decision. It
imposed no obligation on the court, nor could it, and it did not limit or affect the
court's sentencing authority. See Waters, 439 N.J. Super. at 239. Defendant is
therefore not entitled to resentencing based on the court's purported failure to
4 The August 8, 2014 Attorney General directive, if written, has not been
provided by the parties. We quote language concerning the directive from the
2 014 Clarification. 2014 Clarification at 3.
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honor the August 8, 2014 Attorney General directive to prosecutors, and
defendant offers no other basis supporting a remand for resentencing.
Affirmed.
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