STATE OF NEW JERSEY v. DENNIS T. CLIVER

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any co urt." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0150-19T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

DENNIS T. CLIVER,

     Defendant-Respondent.
______________________________

                   Submitted February 24, 2020 – Decided March 20, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 18-11-0414.

                   John T. Lenahan, Salem County Prosecutor, attorney
                   for appellant (David M. Galemba, Assistant Prosecutor,
                   of counsel and on the brief).

                   John A. Ferzetti, attorney for respondent.

PER CURIAM

          Defendant Dennis T. Cliver was accused of fondling the penis of a boy

under the age of thirteen on multiple occasions in 2015 and 2016. Defendant
was indicted on November 14, 2018, for second-degree sexual assault,  N.J.S.A.

2C:14-2(b), and second-degree endangering the welfare of a child,  N.J.S.A.

2C:24-4(a)(1). Six months later, defendant, sixty-one years old, sought entry

into PTI after the trial court, with the prosecutor's consent, allowed him to file

his application out-of-time.

      Upon reviewing defendant's PTI application, the prosecutor rejected the

compelling reasons defendant raised in support of the application.          In its

rejection letter to defense counsel, the prosecutor acknowledged some of the

"compelling reasons" that supported defendant's PTI admission. The prosecutor

noted defendant's exemplary life, including his honorable discharge from the

United States Air Force, his strong familial ties, an offense-free past, and that

he had agreed to a permanent final restraining order as a condition of admittance

into PTI. Nonetheless, the prosecutor believed defendant was not a suitable

candidate based on a thorough consideration of the Guidelines for Operation of

Pretrial Intervention in New Jersey (the Guidelines), Rule 3:28, as well as

 N.J.S.A. 2C:43-12. The prosecutor also cited the "strong oppos[ition]" the

victim's family's had towards defendant's admission. In conclusion, the State

maintained it "weighed . . . defendant's amenability to correction and

responsiveness to rehabilitation, against the nature of the offense and the need


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for deterrence, and [found] that . . . defendant would be ineligible to participate

in PTI due to the nature of the offense and . . . [other] reasons" mentioned above.

      Defendant subsequently filed a motion to appeal the prosecutor's

rejection. To support his declaration that the rejection was a patent and gross

abuse of the prosecutor's discretion, defendant contended the prosecutor relied

solely on the nature of the allegations against him, which were uncorroborated

and full of contradictory statements, and that he met or exceeded most of the

criteria under Guidelines 1 and 2 to warrant his admission.

      In opposing defendant's motion, the prosecutor assessed all of the

Guidelines' factors, citing both those in and not in defendant's favor, and stressed

that to allow defendant into PTI would "demean the serious nature of the sexual

assault allegations," under factor one. The prosecutor also argued most of

defendant's contentions raised factual disputes, which needed to be determined

by a jury, and reiterated the victim's family's strong opposition to defendant's

entry into PTI.

      On August 2, 2019, after hearing the parties' respective arguments, the

court remarked:

            I do find that the State has considered all the statutory
            factors, but the defense has challenged that all of the
            arguments made by the State are premised upon the
            victim; the victim's age, the victim's statements, the

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            victim's willingness to testify[,] what the victim wants
            and what his family wants. It's all centered around the
            victim and there's been no contact with the victim since
            June of 2018.

The court questioned if the "State ha[d] given due consideration to the nature of

the offense and the ability to prosecute th[e] case, keeping in mind that the

State’s overriding obligation is to see that justice is done, not to prosecute cases

because a victim, and/or the victim’s family, wants a case prosecuted."

Concerned about the State's ability to present a "viable case" given its lack of

contact with the victim, the court continued the motion for a month to allow the

prosecutor to contact the victim to assess its ability to prosecute the charges.

      On September 6, the prosecutor informed the court that the victim's father

was in the courtroom, and he advised his son would be available to assist in trial

preparation following his son's release from the hospital in ten days. After

hearing defendant's assertion that "nothing has changed" since the last court

date, the court remarked:

            The weight of the State’s case is not a determining
            factor in a PTI analysis.         And in ordinary
            circumstances, I can’t imagine that it would result in
            admission to PTI simply because the State had a weak
            case.

            This case has another layer to it which is rather
            disturbing in that the State, on behalf of the State of
            New Jersey, not on behalf of any particular victim, has

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     an obligation to see that justice is done not for the
     particular victim, but for society as a whole. And I’m
     wondering how the State can do that when they have
     had no contact with the victim for sixteen months, and
     I recall previously being told that they were not allowed
     to have contact with the victim.

     That is of concern to the [c]ourt. And so the question
     becomes whether it is such a degree of concern that the
     State has infused its discretion by not allowing the
     defendant [to] enter [into] PTI and thereby requiring
     him to continue to go through the legal process,
     including having -- this case put on the trial list and
     having a trial date set many months from now, given
     our court schedule, only to find out at some point along
     the way, after much time and expense, that, in fact, the
     victim is not available for the trial.

     One has to wonder whether that would be justice for
     anyone. And that is the concern that I have.

The court next commented on the PTI factors, then stated:

     [The prosecutor] create[d] the impression that either
     there is a bar to PTI for people charged with this . . .
     type of crime, which should not be the case, or this . . .
     defendant, is being denied PTI simply because the
     victim in this case, the victim's father, strongly objects
     to PTI, which should not be the determinative factor
     either.

     [T]he State, while doing its utmost to protect this
     particular victim and wanting to see that the victim has
     his day in court, despite having no contact with him for
     sixteen months, has lost sight of its obligation to see
     that justice is done and to treat each one of these cases
     fairly with an open mind and to give due weight to all
     of the factors set forth in the statute. . . .

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            [T]herefore, in this particular case, . . . the State has
            abused its discretion in denying the defendant
            admission into PTI[.]

Four days later, confirming its oral decision to grant defendant's motion, the

court entered an order admitting defendant into PTI over the State's objection.

      Before us, the State argues the trial court misapplied the law in overriding

the prosecutor's rejection of defendant's PTI application. The State maintains the

court mischaracterized its rejection of defendant's application by finding it was

based solely on the type of offense. The State contends it properly weighed the

entire Guidelines, including the victim's desire and interests, and the societal

interest in prosecuting defendant, when it decided to reject defendant's

application. We agree with the State.

      Initially, we point out that effective July 1, 2018, the Guidelines were

eliminated, with" many of their prescriptions — with significant variations —

[now] contained in Rules 3:28-1 to -10." State v. Johnson,  238 N.J. 119, 128

(2019). However, neither the trial court nor the parties, before the court or

before us, acknowledged this change. Although the parties' present arguments

speak to the Guidelines, we see no need to remand because the reasons cited in

the court's decision, the record provided, and the parties' arguments allow us to

determine whether it was appropriate for the court to admit defendant into PTI.


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      The prosecutor's consideration of a PTI application is based on the criteria

set forth in  N.J.S.A. 2C:43-12(e) as well as those found in Rule 3:28-4(b). R.

3:28-4(a). In accordance with Rule 3:28-1(d)(1), a "person who is charged with

a crime, or crimes, for which there is a presumption of incarceration or a

mandatory minimum period of parole ineligibility" is ineligible for PTI without

prosecutorial consent. A defendant charged with a first- or second-degree crime

must also enter a guilty plea prior to admission into PTI "[t]o be admitted into

[PTI], a guilty plea must be entered for a defendant who is charged with: . . . a

first or second degree crime[.]" R. 3:28-5(b)(2); see also  N.J.S.A. 2C:43-

12(g)(3). The prosecutor's withholding of consent and an order overruling a

prosecutor's objection to a defendant's entry into PTI are subject to appeal as set

forth in Rule. 3:28-6.

      It is the "fundamental responsibility" of the prosecutor to decide whom to

prosecute, State v. Kraft,  265 N.J. Super. 106, 111 (App. Div. 1993), and

prosecutors have wide latitude in PTI determinations, State v. Wallace,  146 N.J.
 576, 582 (1996); State v. Nwobu,  139 N.J. 236, 246 (1995).            Essentially,

deciding whether to admit a defendant into PTI is a "quintessentially

prosecutorial function," Wallace,  146 N.J. at 582, that calls for an

"individualized assessment of [a defendant's] 'amenability to correction' and


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potential 'responsiveness to rehabilitation,'" along with a consideration of all the

statutory factors and guidelines. State v. Roseman,  221 N.J. 611, 621-22 (2015)

(quoting State v. Watkins,  193 N.J. 507, 520 (2008)). It is well-established that

"the PTI process is not designed to assess the weight of the State's case. '[T]he

appropriate administration of the program militates against basing enrollment

upon the weight of the evidence of guilt.'" Nwobu,  139 N.J. at 252 (quoting

State v. Smith,  92 N.J. 143, 147 (1983)).

      A prosecutor's objection to PTI admission is afforded "extreme

deference," Nwobu,  139 N.J. at 246, which has also been referred to as

"enhanced" or "extra" deference, State v. Baynes,  148 N.J. 434, 443-44 (1997).

In short, defendants are saddled with "a heavy burden" when seeking to

overcome prosecutorial vetoes. Nwobu,  139 N.J. at 246. And courts may set

aside a prosecutor's objection "only" when the prosecutor's decision constitutes

a "most egregious example[] of injustice and unfairness." State v. DeMarco,

 107 N.J. 562, 566 (1987).

      To overturn a rejection of a PTI application, a defendant must "clearly and

convincingly establish that the prosecutor's refusal . . . was based on a patent

and gross abuse of . . . discretion." Wallace,  146 N.J. at 582 (quoting State v.

Leonardis,  73 N.J. 360, 382 (1977)). An abuse of discretion occurs when the


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"prosecutorial veto (a) was not premised on 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." Id. at 583 (quoting State v.

Bender,  80 N.J. 84, 93 (1979)). The error complained of rises to the level of a

"patent and gross abuse of discretion" when the prosecutor's abuse of discretion

"will clearly subvert the goals underlying [PTI]." Ibid.

      With these principles in mind, we are constrained to conclude the court

mistakenly ordered defendant's admission into PTI over the prosecutor's

objection. Our review of the record convinces us that the prosecutor considered,

weighed, and properly balanced all the requisite factors, including those

personal to defendant as well as the facts and circumstances of the offenses. We

therefore do not conclude the prosecutor's rejection of defendant's PTI

application was a patent abuse of discretion amounting to a clear error of

judgment.

      The linchpin of the court's contrary conclusion, and of defendant's

appellate arguments in support of the court's decision, was the belief that the

prosecutor rejected defendant's PTI application based upon the offense involved,

the victim's father's strong objection to PTI, and the possible difficulties the

State may have in prosecuting the charges due to a reluctant or unavailable


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victim. We appreciate that the prosecutor gave significant weight to the fact

that defendant is charged with second-degree offenses of sexual assault and

endangering the welfare of a minor – both having a presumption of incarceration

– but as the State maintains that is within its prerogative. See Kraft,  265 N.J.

Super. at 117 (citing State v. Litton,  155 N.J. Super. 207, 215 (App. Div. 1977))

("Certainly, a reviewing court is not permitted to 'discount the prosecutor's

responsiveness to the prevailing level of local public anxiety over certa in forms

of misconduct and its proper effect upon him in choosing between the goals of

public deterrence and the least burdensome form of rehabilitation for the

offender.'").   Of further importance is that "[i]n nearly identical language,

 N.J.S.A. 2C:43-12(e) and Rule 3:28-4(c) require prosecutors . . . to 'give due

consideration to the victim's position' on whether the defendant should be

admitted into PTI." RSI Bank v. Providence Mut. Fire Ins. Co.,  234 N.J. 459,

475 n.5 (2018). Even if reasonable minds differ in analyzing and balancing the

applicable factors in this case, the trial court's disagreement with a prosecutor's

reasons for rejection does not equate to prosecutorial abuse of discretion to merit

override of the prosecutor's decision.

      Reversed.




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