STATE OF NEW JERSEY v. DARYL FREEMAN
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4340-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARYL FREEMAN, a/k/a DENIES,
Defendant-Appellant.
___________________________________
Submitted February 12, 2018 – Decided March 16, 2018
Before Judges Accurso and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 16-
05-1502.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Matthew
E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Daryl Freeman appeals the denial of his application
for admission into the pretrial intervention program (PTI), as
well as the length of the probationary sentence imposed following
his guilty plea to third-degree aggravated assault. Finding no
merit in either point, we affirm.
I.
On December 28, 2015, defendant, who was then 20 years old,
was standing with two friends outside a building owned by the 61-
year-old victim. Defendant had previously lived in the building
with his grandmother, but had moved after having had disputes with
the victim. The victim asked defendant and his friends to leave
the property. When they refused, the victim began taking
photographs of the three with his cellphone and stated that he
intended to call the police. Defendant responded by punching the
victim in the face. As a result of the assault, the victim
suffered a broken jaw, which had to be wired shut for ten weeks
to heal.
On May 11, 2016, a grand jury returned an indictment charging
defendant with one count of third-degree aggravated assault
pursuant to
N.J.S.A. 2C:12-1b(7). Defendant thereafter applied
for admission to PTI. The Essex County PTI Program Director
recommended that he be accepted into the program. The prosecutor
rejected the recommendation.
2 A-4340-16T2
In an eight-page letter, the executive assistant prosecutor
carefully considered each of the factors set forth in
N.J.S.A.
2C:43-12(e) and Rule 3:28 to determine whether defendant would be
admitted to the program. While the executive assistant prosecutor
acknowledged that defendant had no record of criminal convictions,
she noted that defendant was presumed to be ineligible for PTI as
a result of having been charged with an offense involving the
deliberate use of violence. See
N.J.S.A. 2C:43-12(b)(2)(b); R.
3:
28 Guideline 3(i)(2). She concluded that defendant had not
overcome the presumption of ineligibility by establishing
"compelling reasons" demonstrating his amenability to correction
and responsiveness to rehabilitation. See State v. Nwobu,
139 N.J. 236, 252 (1995).
Specifically, the executive assistant prosecutor noted the
significant injuries defendant inflicted on the victim, and
defendant's history as a high school dropout, who was unemployed
at the time of the offense, and had never held employment. In
addition, defendant tested positive for both marijuana and
oxycodone at his PTI evaluation, and did not acknowledge what the
evaluator identified as a severe cannabis use disorder. The
defendant admitted that he had used marijuana on the day of the
incident and was under the influence of the drug when he punched
the victim.
3 A-4340-16T2
After considering the victim's desire to prosecute the
charges, defendant's propensity to react violently without cause,
the public interest in deterring violent behavior, and defendant's
background and potential for rehabilitation, the executive
assistant prosecutor determined that the aggravating factors
clearly outweighed the mitigating factors and denied defendant's
PTI application.
Defendant appealed the rejection of his PTI application to
the trial court. There, he argued that the executive assistant
prosecutor failed to consider all relevant factors, incorrectly
evaluated the factors that were considered, failed to consider
defendant's contention that compelling reasons justified departing
from the presumption that he was ineligible for PTI, and made a
decision influenced by defendant's race.
The judge engaged in an extensive and detailed evaluation of
the executive assistant prosecutor's review of each of the relevant
factors. In addition, the court reviewed defendant's statement
of compelling reasons and found nothing "extraordinary, unusual,
or idiosyncratic" about defendant's circumstances that would
compel his entry into PTI over the prosecutor's objections.
Finally, the court, while finding plausible defendant's argument
that diversion into PTI would improve the chances of defendant
gaining employment necessary to make restitution to the victim,
4 A-4340-16T2
held that it was not within the court's province to substitute its
judgment for that of the prosecutor, absent a patent and gross
abuse of discretion. The court found defendant's arguments with
respect to racial bias to be baseless.1
Defendant thereafter entered a guilty plea to the single
count in the indictment.2 In exchange for the plea of guilty, the
State agreed to recommend a sentence of non-custodial probation.
Prior to imposing sentence, the court engaged in a substantive
analysis of the aggravating and mitigating factors set forth in
N.J.S.A. 2C:44-1(a) and (b). The court found the gravity and
seriousness of the offense to be an aggravating factor, noting the
harm inflicted on the victim. In addition, the court found the
circumstances of the offense to be an aggravating factor, given
that defendant was on private property, refused to leave when
asked to do so, and assaulted the property owner when he threatened
to call police. Finally, the court found as an aggravating factor
the need to deter defendant and others from violating the law.
1
Defendant does not raise claims of racial bias before this
court.
2
During his plea, defendant admitted punching the victim, but
claimed that he did so after the victim pushed him. He admitted,
however, that his punch did not constitute justifiable self-
defense.
5 A-4340-16T2
The court accepted as mitigating factors defendant's lack of
a criminal history, that defendant would likely respond well to
probationary treatment, and that defendant would participate in a
program of community service. The court rejected defendant's
argument that he was strongly provoked to strike the victim and
that the victim induced or facilitated the crime, finding that it
was defendant's refusal to leave property on which he was
trespassing that initiated the encounter. The court also rejected
defendant's arguments that he did not contemplate his actions
would cause serious harm to the victim, and that he was unlikely
to commit another offense.
The court concluded that the aggravating and mitigating
factors were in equipoise, and sentenced defendant to a three-year
term of probation, 210 hours of community service, $695 in fines
and penalties, and restitution to the victim in an amount to be
determined when medical treatment for his injuries is complete.
This appeal followed.
On appeal defendant raises the following arguments for our
consideration:
6 A-4340-16T2
Point I
THE TRIAL COURT ERRED IN FINDING THAT THE
STATE'S DENIAL OF DEFENDANT'S APPLICATION FOR
PRE-TRIAL INTERVENTION WAS NOT AN ABUSE OF
DISCRETION.
A. Considered Factors
Factors One, Two, Nine and Ten
Factors Seven, Fourteen, and
Seventeen
B. Applicable, But Ignored Factors
Factors Five, Six and Eleven
Factor Twelve
Point II
AN EXCESSIVE SENTENCE WAS IMPOSED AFTER THE
COURT FAILED TO PROPERLY FIND AND WEIGH
AGGRAVATING AND MITIGATING FACTORS
A. Aggravating Factors Found in Error
Factor Nine
B. Ignored Mitigating Factors
Factor Two
Factors Three, Four, Five
Factors Eight and Nine
II.
The criteria for admission into PTI, as well as the procedures
concerning the program, are set forth in
N.J.S.A. 2C:43-12 to -22
7 A-4340-16T2
and Rule 3:28.
N.J.S.A. 2C:43-12(e) includes seventeen criteria
which, among other factors, prosecutors and program directors must
consider when deciding whether to accept or reject a PTI
application and Rule 3:28 is followed by eight guidelines. If a
prosecutor denies an application, he must "precisely state his
findings and conclusion which shall include the facts upon which
the application is based and the reasons offered for the denial."
N.J.S.A. 2C:43-12(f).
Our review of a prosecutor's decision to deny a defendant
admission into PTI is "severely limited." State v. Negran,
178 N.J. 73, 82 (2003) (citations omitted). Judicial review of a PTI
application exists "'to check only the most egregious examples of
injustice and unfairness.'" Nwobu,
139 N.J. at 246 (quoting State
v. Kraft,
256 N.J. Super. 106, 111 (App. Div. 1993)). Absent
evidence to the contrary, a reviewing court must assume that "the
prosecutor's office has considered all relevant factors in
reaching the PTI decision." Nwobu,
139 N.J. at 249 (citing State
v. Dalglish,
86 N.J. 502, 509 (1981)). A defendant seeking to
have a court overrule a prosecutor's rejection of a PTI application
must "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." State v. Wallace,
8 A-4340-16T2
146 N.J. 576, 582 (1996) (quoting State v. Leonardis,
73 N.J. 360,
382 (1977)).
Having carefully considered defendant's arguments under these
standards, we conclude that no grounds exist to disturb the trial
court's decision. The record demonstrates that the executive
assistant prosecutor evaluated each of the factors set forth in
N.J.S.A. 2C:43-12(e) and Rule 3:28 before denying defendant's PTI
application. Thereafter, the trial court conducted a thorough
review of the prosecutor's decision. On appeal, defendant advances
no convincing argument that the prosecutor's determination should
be disturbed. Defendant was charged with a crime involving the
deliberate use of violence, for which admission to PTI is presumed
to be inappropriate, see Guideline 3(i)(2), and identified no
compelling justification for his admission to the program, see
Nwobu,
139 N.J. at 252.
III.
We review sentencing determinations for abuse of discretion.
State v. Robinson,
217 N.J. 594, 603 (2014) (citing State v. Roth,
95 N.J. 334, 364-65 (1984)). The sentencing court must
"undertake[] an examination and weighing of the aggravating and
mitigating factors listed in [
N.J.S.A.] 2C:44-1(a) and (b)." Roth,
95 N.J. at 359; State v. Kruse,
105 N.J. 354, 359 (1987).
Furthermore, "[e]ach factor found by the trial court to be relevant
9 A-4340-16T2
must be supported by 'competent, reasonably credible evidence'"
in the record. State v. Fuentes,
217 N.J. 57, 72 (2014) (quoting
Roth,
95 N.J. at 363).
We accord deference to the sentencing court's determination.
Fuentes,
217 N.J. at 70 (citing State v. O'Donnell,
117 N.J. 210,
215 (1989)). We must affirm defendant's sentence unless
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes,
217 N.J. at 70 (quoting Roth, 95
N.J. at 364-65).]
Our review of the trial court's sentencing determination
reveals a careful consideration of each of the relevant aggravating
and mitigating factors by the judge, whose findings are supported
by competent and credible evidence. Defendant's probationary
sentence does not shock the judicial conscience, and instead is
an appropriate sanction, given the circumstances of this case.
Affirmed.
10 A-4340-16T2
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