STATE OF NEW JERSEY v. GREGORY B. HARRIS

NOT FOR PUBLICATION WITHOUT THE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-4915-15T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GREGORY B. HARRIS, a/k/a BO
HARRIS and GREGORY BERNARD
HARRIS,

        Defendant-Appellant.

________________________________

              Submitted January 10, 2018 – Decided January 29, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Accusation No.
              15-12-0971.

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

              Ann M. Luvera, Acting Union County Prosecutor,
              attorney for respondent (Paul J. Wiegartner,
              Special      Deputy     Attorney      General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant appeals the denial of his application for admission

into the pretrial intervention program (PTI).   He argues:

          POINT I

          THE PROSECUTOR'S REJECTION OF MR. HARRIS' PTI
          APPLICATION CONSTITUTED A PATENT AND GROSS
          ABUSE OF DISCRETION BECAUSE HE FAILED TO
          CONSIDER ALL OF THE RELEVANT FACTORS AND
          CONDUCT AN INDIVIDUALIZED EVALUATION OF THE
          DEFENDANT, RESULTING IN A CLEAR ERROR OF
          JUDGMENT WHICH SUBVERTED THE GOALS UNDERLYING
          THE PTI PROGRAM.

          POINT II

          WHERE A PROSECUTORIAL VETO IS BASED PRIMARILY
          UPON THE NATURE OF THE CASE, TO ENSURE
          MEANINGFUL APPELLATE REVIEW AND PROTECT
          APPLICANTS   FROM   ARBITRARY    PROSECUTORIAL
          DECISIONS INCLUDING PROHIBITED PER SE RULES
          AND INAPPROPRATE DISPARATE TREATMENT, THE
          DEFENDANT'S REASONABLE REQUEST TO REVIEW THE
          PROSECUTOR'S DECISIONS IN SIMILAR CASES SHOULD
          HAVE BEEN GRANTED.

Finding no merit in either argument, we affirm.

     For purposes of defendant's PTI application, the parties

relied on the accounts of the incident contained in the reports

of participating police and sheriff's officers.      According to

these documents, on the morning of August 31, 2015, Union County

Sheriff's officers responded to a reported fight in a county

building's courtyard.   Once there, they observed defendant, who

was near a bike rack, wielding a large chain with a lock, swinging

it at the victim's head and body.   The victim was bleeding from

                                2                            A-4915-15T4
the head. An officer twice shouted to defendant to drop the chain,

and defendant twice ignored the commands.                  Defendant finally

complied when the officer threatened to shoot him.

     The victim refused medical attention.            He told police he was

not trying to steal the bike as defendant alleged, but was merely

looking at tires on two bikes in the rack to see if they were

similar to the tires on his bike.           Defendant appeared, removed the

chain from his bike, accused the victim of trying to steal the

bike, and began beating the victim with the chain.                 The victim

said he had known defendant approximately nine years and had been

drinking with him on several occasions.

     Defendant told police the victim was trying to remove a tire

from his bike.   When defendant asked what he was doing, the victim

said, "my baby needs a tire but if I knew it was yours, I wouldn't

have took it."   Defendant told police, "that's why it's aggravated

assault, because I got aggravated, so I busted his head wide open."

     Police   charged    defendant     on    a   summons   with   third-degree

aggravated    assault,   
N.J.S.A.      2C:12-1(b)(2),      and    third-degree

possession of a weapon for an unlawful purpose, 
N.J.S.A. 2C:39-

4(d).   Two    months    later,   in   October,     defendant     applied   for

admission into PTI.      In early December, the Union County Criminal

Division Manager recommended accepting defendant's application,

but a prosecutor rejected it.

                                       3                               A-4915-15T4
      In   an   email    rejecting     defendant's       PTI   application,    the

prosecutor      said    he   had   carefully    considered      "the   Guidelines

pursuant to [Rule] 3:28 and the Factors pursuant to 
N.J.S.A. 2C:43-

12(e).     It is only after this careful review in conjunction with

considering the Guidelines and Factors, that the State reached its

decision to reject defendant's application for entry into PTI."

      The prosecutor acknowledged defendant, age forty-nine, was

employed, had no prior convictions for indictable offenses, and

had never been placed on parole or probation, though he had twice

been convicted of shoplifting.               The prosecutor noted, however,

"Guideline 3 of [Rule] 3:28 states that a defendant whose crime

was a deliberate act of violence or threat of violence should

generally have his application for PTI denied."1                Explaining that

he could reject defendant's PTI application on that ground alone,

the   prosecutor       nonetheless     relied     upon   six   of   the   factors

enumerated      in   
N.J.S.A.      2C:43-12(e).      The   prosecutor     further

explained how the facts underlying defendant's offenses supported

each of these factors.


1
    When defendant was charged, Rule 3:28, Guideline 3(i)(3)
provided in relevant part: "Any defendant charged with [a] crime
is eligible for enrollment in a PTI program, but the nature of the
offense is a factor to be considered in reviewing the application.
If the crime was . . . deliberately committed with violence or
threat of violence against another person[,] . . . the defendant's
application should generally be rejected."      The Guideline has
since been amended.

                                         4                                A-4915-15T4
     Following the prosecutor's rejection of his PTI application,

defendant accepted a plea offer.            In December 2015, defendant pled

guilty to an accusation's single charge of third-degree aggravated

assault, 
N.J.S.A. 2C:12-1(b)(7).              In exchange, the prosecutor

agreed   to   recommend    a    term    of    non-custodial    probation      and

restitution to the victim.

     Four months later, before sentencing, defendant appealed the

prosecutor's rejection of his PTI application.                In a supporting

brief,   he   argued   that    "[t]he   State     must   explain   why    others

similarly situated were allowed into the Pre-Trial Intervention

Program and [defendant's] application is rejected."                 Defendant

requested in his brief that "the State provide a record of all

persons admitted to the Pre-Trial intervention program . . . that

were charged with violent behavior for review by the [c]ourt and

[d]efense [c]ounsel."         The trial court rejected both the appeal

and the discovery request and upheld the prosecutor's rejection

of defendant's PTI application.

     The court sentenced defendant to a probationary term of one

year.    The court also imposed appropriate fees, penalties, and

assessments.    This appeal followed.

     The criteria for admission into PTI, as well as the procedures

concerning the program, are set forth in Rule 3:28 and 
N.J.S.A.

2C:43-12 to -22.       Rule 3:28 is followed by eight guidelines and

                                        5                                A-4915-15T
4 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.       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."    State v. Nwobu, 
139 N.J. 236, 246

(1995) (quoting State v. Kraft, 
265 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." Id. at 249 (citing

State v. Dalglish, 
86 N.J. 503, 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, 
146 N.J. 576, 582 (1996) (quoting

State v. Leonardis, 
73 N.J. 360, 382 (1977)).

                                 6                          A-4915-15T4
       Having carefully considered defendant's arguments under these

standards, we conclude his arguments are without sufficient merit

to warrant further discussion in a written opinion.                R. 2:11-

3(e)(2).    We add the following brief comments.

       Defendant's offense fell within those enumerated in Guideline

3(i)(3), as that Guideline existed at the time.         The Supreme Court

has explained "[t]he effect of . . . Guideline [3(i)] is to create

a 'presumption against acceptance' into PTI for defendants whose

crimes fall within the enumerated categories."          State v. Watkins,


193 N.J. 507, 520 (2008) (quoting State v. Baynes, 
148 N.J. 434,

442 (1997)).   "To overcome 'the presumption against PTI, defendant

must    establish   "compelling    reasons"     for   admission'    to   the

program." Ibid. (quoting Nwobu, 
139 N.J. at 252). Here, defendant

failed to establish any reasons of such a compelling nature.

       Defendant also argues the trial court should have granted his

"reasonable    request"   to   review   the   prosecutor's   decisions     in

similar cases.      It does not appear defendant ever made such a

request, in writing or otherwise, to the prosecutor.                Rather,

defendant raised the issue for the first time in his brief in the

Law Division, where he sought "a full accounting of all defendants

admitted to the PTI program in Union County on assaultive charges

in the past [five] years."



                                    7                               A-4915-15T4
       The   Supreme   Court    "has   never     mandated   discovery     to   aid

defendants in demonstrating arbitrary and capricious conduct or

disparate treatment without a preliminary showing."                     State v.

Benjamin, 
228 N.J. 358, 374 (2017).                 A defendant must show a

prosecutor has committed an abuse of discretion before obtaining

a hearing to review the prosecutor's decision.                Ibid.     As to PTI

applications,      defendants    do    not   have    a   license   to    subpoena

prosecutors' files; rather, defendants seeking such discovery must

first support their claims by independently secured evidence.

State v. Sutton, 
80 N.J. 110, 120-21 (1979).

       Here, defendant produced no competent, independent evidence

that   the   prosecutor    either      treated    defendant    disparately       or

maintained a policy of excluding from PTI all defendants charged

with an offense involving assault.             We thus reject his argument.

       Affirmed.




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