STATE OF NEW JERSEY v. P.S.C.

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4028-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

P.S.C.,1

     Defendant-Appellant.
_______________________

                   Submitted April 29, 2020 – Decided May 15, 2020

                   Before Judges Koblitz and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 17-07-0954.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Alicia J. Hubbard, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (William P. Miller, Assistant Prosecutor, of
                   counsel and on the brief).



1
     We use initials pursuant to Rule 1:38-3(c)(5).
PER CURIAM

      Defendant appeals from his April 18, 2019 conviction, arguing that the

court erred in issuing a February 8, 2019 order affirming the prosecutor's denial

of his application for admission to the pretrial intervention program (PTI),

 N.J.S.A. 2C:43-12. Defendant was charged for behavior occurring on January

22, 2017, in an indictment alleging third-degree possession of a knife for an

unlawful purpose,  N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a

knife,  N.J.S.A. 2C:39-5(d); third-degree terroristic threats,  N.J.S.A. 2C:12-3(a);

and fourth-degree resisting arrest,  N.J.S.A. 2C:29-2(a).

      The recommendation of the PTI director and the assistant prosecutors'

submissions to the trial court reflect the following facts. On January 22, 2017,

defendant entered a church where approximately fourteen congregants were

present.   After observing defendant sitting in an area reserved for choir

members, the pastor approached defendant and asked him to move. Defendant

relocated, and the pastor then heard screams. He turned around "and saw

defendant screaming the 'F-word'" from the back of the church. When the pastor

approached him to quiet him down, defendant pointed a seven-inch blade knife

at the pastor. The pastor later said he wanted to help defendant.




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      The police arrived when defendant was running away. Defendant did not

initially comply with the order to stop but then "suddenly stopped" and "turned

to face [the officer] in an aggressive manner."

      The officer drew his service weapon and ordered defendant to the ground.

Defendant complied and was arrested. A pat down revealed no weapons. In

response to the officer's question about whether he had a knife, defendant said

he "threw it in a bush," where it was later found. The pastor told the police that

defendant smelled of alcohol.

      In August 2017, the assistant prosecutor assigned to the case offered a

plea offer to defendant, which included: "Defendant to apply to [PTI], if eligible

and subject to mental health evaluation." The PTI director, who also serves as

the Criminal Division manager, denied defendant's PTI application almost a year

later, in July 2018, on the basis that "[a]n offense of such nature, that also

violates the sanctity of the church, is something that needs to be deterred."

      In a six-page letter sent almost three months later, a different assistant

prosecutor adopted the PTI director's findings and concluded "that the facts of

this case warrant heightened caution" and are "beyond alarming." In denying

defendant's admission into PTI, the assistant prosecutor cited to five of the

seventeen factors, noting the nature and facts of the offense,  N.J.S.A. 2C:43-


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12(e)(1) to -(2), the needs and interests of the public,  N.J.S.A. 2C:43-12(e)(7),

the value of supervisory treatment,  N.J.S.A. 2C:43-12(e)(14), and that the harm

to society by forgoing prosecution would outweigh the benefit to society of

defendant's admission to PTI,  N.J.S.A. 2C:43-12(e)(17).

      Defendant appealed from the denial of PTI to the Law Division. In

December 2018, after a third assistant prosecutor was heard, the court remanded

the matter "for a better statement of reasons." 2 The court asked the assistant

prosecutor to address "the level of supervision provided to someone who [is] in

PTI," given the assistant prosecutor's position that insufficient supervision was

available, and whether, in addition to the pastor, there were other victims.

      The assistant prosecutor's revised statement of reasons did not address the

court's questions, although more analysis was provided for the applicable

 N.J.S.A. 2C:43-12(e) factors. The parties reconvened in February 2019, when

the court deferred to the assistant prosecutor, issuing an order denying

defendant's appeal of the denial of his PTI application.




2
  During this hearing, the court repeatedly asked defendant to stop interrupting
the proceeding. The court emphasized that considering the parties were
discussing the possibility of defendant's substance abuse and mental health
issues, the fact defendant could not control himself, despite repeated instruction,
"[is] a concern."
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      In exchange for dismissing the remaining charges, defendant pled guilty

to fourth-degree resisting arrest in February 2019. On April 12, 2019, defendant

was sentenced to two years of probation and, in addition to financial penalties,

was ordered to remain fifty yards away from the church.

      Defendant raises the following single, multi-part issue on appeal:

            POINT I: THE TRIAL COURT, ALLOWING AND
            EVEN ENCOURAGING THE STATE TO IGNORE
            APPLICABLE FACTORS LISTED IN  N.J.S.A. 2C:43-
            12(E) AND TO CONSIDER INAPPROPRIATE
            FACTORS, ERRED IN FINDING THAT THE
            STATE'S    DENIAL      OF    DEFENDANT'S
            APPLICATION FOR [PTI] WAS NOT AN ABUSE OF
            DISCRETION.

               FACTORS ONE, TWO, TEN AND TWELVE

            THE NATURE OF THE OFFENSE AND FACTS OF
            THE CASE, WHETHER OR NOT THE CRIME IS OF
            AN ASSAULTIVE OR VIOLENT NATURE, AND
            HISTORY OF USE OF PHYSICAL VIOLENCE
            TOWARDS OTHERS.

               FACTOR THREE

            THE MOTIVATION             AND      AGE     OF    THE
            DEFENDANT.

               FACTOR FOUR

            THE DESIRE OF THE COMPLAINANT OR VICTIM
            TO FOREGO PROSECUTION.



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 FACTORS FIVE AND SIX

THE EXISTENCE OF PERSONAL PROBLEMS
WHICH MAY BE RELATED TO THE CRIME AND
FOR WHICH SERVICES MAY BE PROVIDED
MORE EFFECTIVELY THROUGH SUPERVISORY
TREATMENT, THE PROBABILITY THAT THE
CAUSES OF THE BEHAVIOR CAN BE
CONTROLLED BY TREATMENT AND THE
LIKELIHOOD THAT THE CRIME IS RELATED TO
A SITUATION THAT WOULD BE CONDUCIVE TO
CHANGE    THROUGH    PARTICIPATION   IN
SUPERVISORY TREATMENT.

  FACTORS SEVEN, ELEVEN, FOURTEEN AND
  SEVENTEEN

THE NEEDS AND INTEREST OF THE VICTIM AND
SOCIETY AND WHETHER OR NOT THE CRIME IS
OF SUCH A NATURE THAT THE VALUE OF
SUPERVISORY    TREATMENT    WOULD     BE
OUTWEIGHED BY THE PUBLIC NEED FOR
PROSECUTION,     WHETHER      OR     NOT
PROSECUTION WOULD EXACERBATE THE
PROBLEM [THAT] LED TO THE CRIMINAL ACT,
WHETHER OR NOT THE HARM DONE TO
SOCIETY    BY   ABANDONING      CRIMINAL
PROSECUTION    WOULD    OUTWEIGH     THE
BENEFITS TO SOCIETY FROM CHANNELING AN
OFFENDER INTO A SUPERVISORY TREATMENT
PROGRAM.

  FACTORS EIGHT AND NINE

THE EXTENT TO WHICH THE APPLICANT'S
CRIME CONSTITUTES PART OF A CONTINUING
PATTERN OF ANTI-SOCIAL BEHAVIOR AND THE
APPLICANT’S RECORD OF CRIMINAL AND

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                   6
            PENAL VIOLATIONS AND THE EXTENT TO
            WHICH HE MAY PRESENT A SUBSTANTIAL
            DANGER TO OTHERS.

                              I. Standard of Review.

      The scope of judicial review of a prosecutor's rejection of PTI is "severely

limited." State v. Negran,  178 N.J. 73, 82 (2003). 3 Whether to permit diversion


3
    Prosecutors and program directors shall consider in formulating their
recommendation of an applicant's participation in a supervisory treatment
program, among others, the following criteria:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related
to the applicant's crime and for which services are unavailable within the
criminal justice system, or which may be provided more effectively through
supervisory treatment and the probability that the causes of criminal behavior
can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation
that would be conducive to change through his participation in supervisory
treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing
pattern of anti-social behavior;


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(9) The applicant's record of criminal and penal violations and the extent to
which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in
the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social
problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory
treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime
charged or in other crime is such that the interest of the State would be best
served by processing his case through traditional criminal justice system
procedures;

(16) Whether or not the applicant's participation in pretrial intervention will
adversely affect the prosecution of codefendants; and

(17) Whether or not the harm done to society by abandoning criminal
prosecution would outweigh the benefits to society from channeling an offender
into a supervisory treatment program.

The prosecutor and the court, in formulating their recommendations or decisions
regarding an applicant's participation in a supervisory treatment program, shall
give due consideration to the victim's position on whether the defendant should
be admitted.

[ N.J.S.A. 2C:43-12(e); see also R. 3:28(4)(a) to -(c).]
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to PTI "is a quintessentially prosecutorial function." State v. Wallace,  146 N.J.
 576, 582 (1996). "Prosecutorial discretion in this context is critical for two

reasons. First, because it is the fundamental responsibility of the prosecutor to

decide whom to prosecute, and second, because it is a primary purpose of PTI

to augment, not diminish, a prosecutor's options." State v. Nwobu,  139 N.J. 236,

246 (1995) (quoting State v. Kraft,  265 N.J. Super. 106, 111 (App. Div. 1993)).

Courts, therefore, give prosecutors "broad discretion to determine if a defendant

should be diverted" to PTI. State v. K.S.,  220 N.J. 190, 199 (2015).

      If a "reviewing court determines that the 'prosecutor's decision was

arbitrary, irrational, or otherwise an abuse of discretion . . .' the reviewing court

may remand to the prosecutor for further consideration." Id. at 200 (quoting

State v. Dalglish,  86 N.J. 503, 509 (1981)). An abuse of discretion is manifested

when defendant proves "that the [PTI] denial '(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.'"

State v. Lee,  437 N.J. Super. 555, 563 (2014) (quoting State v. Bender,  80 N.J.
 84, 93 (1979)). "A remand to the prosecutor affords an opportunity to apply the

standards set forth by the court 'without supplanting the prosecutor's primacy in




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determining whether [PTI] is appropriate in individual cases.'" K.S.,  220 N.J.

at 200 (quoting Dalglish,  86 N.J. at 514).

      A reviewing court may, however, overturn a prosecutor's rejection of PTI

when a defendant "clearly and convincingly establish[es] that the prosecutor's

decision constitutes a patent and gross abuse of discretion.'" State v. Nicholson,

 451 N.J. Super. 534, 553 (App. Div. 2017) (quoting State v. Watkins,  193 N.J.
 507, 520 (2008)). "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 . . . clearly subvert[ed] the goals underlying [PTI]." State v.

Roseman,  221 N.J. 611, 625 (2015) (quoting State v. Bender,  80 N.J. 84, 93

(1979)) (in spite of the presumption against admission for the crimes ch arged,

ordering defendant be admitted to PTI in light of the "extraordinary and unusual"

circumstances, the passage of time, and the patent and gross abuse of the

prosecutor's discretion). In other words, a defendant satisfies this heightened

standard upon establishing not only an abuse of discretion, but also that the

prosecutor's decision "ha[d] gone so wide of the mark sought to be accomplished

by PTI that fundamental fairness and justice require judicial intervention."

Watkins,  193 N.J. at 520 (quoting Wallace,  146 N.J. at 582-83). "Where a




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defendant can make that showing, a [reviewing] court may admit a defendant,

by order, into PTI over the prosecutor's objection." Roseman,  221 N.J. at 625.

                        II. Amenability to PTI Supervision.

      Because defendant was not clinically assessed for mental illness and lacks

a history of physical violence, defendant takes issue with the prosecutor's

"suggest[ion] that he could not be adequately supervised through PTI." Because

the parties disagreed as to whether PTI only provides "low level supervision,"

which would inadequately address defendant's mental health needs, the court

remanded the matter for the assistant prosecutor to brief what level of

supervision PTI provides.      The assistant prosecutor failed to address this

question and merely reasserted the assumption that a "mental health probation

officer . . . would be more equipped than a PTI probation officer to address his

mental health needs."

      "Because mental health issues impact [the PTI] assessment, the prosecutor

is required to consider a defendant's mental illness." K.S.,  220 N.J. at 202. Such

"considerations bear directly on the applicant's suitability to respond to short -

term rehabilitation while subject to PTI supervision." Negran,  178 N.J. at 85.

      The purpose of PTI is to provide eligible defendants "with opportunities

to avoid ordinary prosecution by receiving early rehabilitative services or


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supervision."  N.J.S.A. 2C:43-12(a)(1). Although the statute does not define the

level of supervision provided, our court rules explain:

            The deterrence of criminal behavior in many cases
            requires intensive work: counseling, psychotherapy,
            drug-abuse prevention and control, employment
            placement.      Programs in these cases should be
            measured against available treatment facilities and the
            time constraints of PTI. For other defendants, however,
            no more than a supervised pretrial probationary period
            may be necessary when no extensive need for
            rehabilitative services can be discerned.

            [Pressler & Verniero, Current N.J. Court Rules,
            comment on Guideline 1(d) to R. 3:28 (2020).]

A defendant who requires extensive services, therefore, may be better suited for

probation rather than PTI. See ibid.

      Here, no such discernment of what level of supervision defendant requires

was made. The assistant prosecutor noted that defendant was willing to undergo

a mental health evaluation, yet no evaluation was completed. Without an expert

evaluation of defendant's mental health or a report on the level of supervision

available through PTI, the prosecutor could not evaluate defendant's amenability

to PTI supervision.

                      III. Defendant's Motivation and Age.

      Defendant argues the assistant prosecutor failed to consider his motivation

and age. See  N.J.S.A. 2C:43-12(e)(3). He emphasizes that at the time of the

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incident, he was twenty-eight years old and had no criminal record, which

demonstrates "he was not deeply ingrained in some criminal milieu or unlikely

to respond positively to instruction and intervention" but rather "open to life -

changing guidance."

      In the assistant prosecutor's revised statement of reasons, she noted

defendant's age and explained that the defendant's motivation behind the

incident was unknown. Defendant smelled of alcohol, but without a mental

health evaluation, the motivation was unclear.

                              IV. Victims' Input.

      Defendant argues the assistant prosecutor failed to consider "[t]he desire

of the complainant or victim to forego prosecution" when denying his PTI

admission. See  N.J.S.A. 2C:43-12(e)(4). The statute requires: "The prosecutor

and the court, in formulating their recommendations or decisions regarding an

applicant’s participation in a supervisory treatment program, shall give due

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

admitted."     N.J.S.A. 2C:43-12(e).     Here, the victim's position was not

considered.   Neither the pastor nor the congregants were asked about their

desires.




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      Although the pastor told the police that he wished to help defendant, the

trial court stated that because the pastor may have "a conflict between his

responsibility or his duty to God and . . . his civic duty," it " [does not] know

how much weight the State should give to that." Just as jurors may not be

dismissed based on the stereotype that their religious beliefs will cause them to

extend mercy, State v. Fuller,  182 N.J. 174, 201-03 (2004), defendant asserts

that the "dismissive treatment" of the pastor's opinion due to his assumed

religious beliefs and role as a clergyman, violates defendant's right to due

process.

      Defendant also argues the prosecutor erred by "imput[ing] to certain

victims an intent they never voiced." Despite the court asking the assistant

prosecutor to seek out the congregants, this was never done.         Instead, the

assistant prosecutor emphasized that because "the people present [at the church]

appeared afraid and fled," they likely would oppose defendant's admission into

PTI. Such an assumption is not warranted.

      "The PTI statute and court rule . . . recognize the importance of a victim's

concerns in PTI determinations." RSI Bank v. Providence Mut. Fire Ins. Co.,

 234 N.J. 459, 475 (2018). The victim must be "afforded an opportunity to state

his or her view," and although "not dispositive, the victim's view must be


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considered when a defendant's application for PTI is determined, and conditions

of PTI are imposed." Id. at 476. Here the victims' views were not considered.

                      V. Defendant's need for supervision.

      Defendant argues that despite the prosecutor recognizing that defendant

may have mental health or alcohol addiction issues that contributed to the

incident, the prosecutor "refused to even contemplate the idea that [his] issues

could be addressed through PTI."       He correctly notes that the prosecutor's

reasoning that no evidence exists of the "likelihood that [his] crime is related to

a condition or situation that would be conducive to change through his

participation in supervisory treatment" is contrary to the prosecutor's view that

his serious mental health issues preclude him from PTI. See  N.J.S.A. 2C:43-

12(e)(6).

      The prosecutor acknowledged in the revised statement of reasons that

"[w]hile it appears that there is no rational explanation for defendant's bizarre

behavior on January 22, 2017, the State has no information that defendant has

been diagnosed with any mental health disorder or substance abuse issue ." See

 N.J.S.A. 2C:43-12(e)(5).




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      The prosecutor inconsistently also argued that defendant could not be

adequately supervised by a PTI probation officer because he had such serious

mental health issues.

                   VI. Defendant's Lack of Criminal Record.

      Defendant argues that although he has no prior charges or convictions, the

assistant prosecutor erroneously considered two other interactions with law

enforcement. On an unspecified date before this incident, police received a call

reporting an argument in defendant's apartment. When they arrived, defendant

admitted he was upset and broke something. In July 2018, defendant was

arrested when police discovered an outstanding warrant for his arrest due to

unpaid traffic tickets after they saw him waiting outside a closed liquor store.

      A prosecutor must consider whether "the applicant's crime constitutes part

of a continuing pattern of anti-social behavior,"  N.J.S.A. 2C:43-12(e)(8), and

"[t]he applicant's record of criminal and penal violations,"  N.J.S.A. 2C:43-

12(e)(9). Our Supreme Court clarified that "[p]roper consideration requires

more than a prior arrest when the identified information is reviewed in

connection with the rejection of a [PTI] application." K.S.,  220 N.J. at 199.

"[P]rior dismissed charges may not be considered for any purpose."           Ibid.




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Certainly, then, behavior that did not result in an arrest on criminal charges may

not be considered.

      The assistant prosecutor claimed these incidents were not considered in

denying defendant's application, but rather included to provide some

"background." She expressly stated that "significant weight" was given to

defendant's "absence of any prior criminal or disorderly persons convictions."

The prosecutor's claim that it gave great weight to defendant's lack of

convictions does not compensate for the improper consideration of this

"background" material.

      When the prosecutor's reasons for denial are arbitrary, irrational, or

otherwise an abuse of discretion, but not a patent or gross abuse of discretion,

we normally remand for further consideration. Here, the prosecutor was given

a chance to reframe its objections and yet did not properly consider the

applicable statutory criteria.   Also, similar to the situation in Roseman, the

passage of time since defendant was indicted is considerable. The prosecutor

was given a second chance in the trial court to reconsider the expressed reasons

for rejecting defendant from PTI. Had that second chance not been timely given,

we would be inclined to remand to the prosecutor to conduct a mental health




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evaluation and consult the victims before reconsidering defendant's admission

into PTI.

      Under the present circumstances, we remand for the court to consider the

appropriate remedy, informed by defendant's behavior while on probation for

more than one year and given the passage of more than three and one-half years

since the offense occurred. If the court believes a mental health assessment and

polling of the victims would still be helpful, it may be ordered. If the court finds

that admission into PTI with credit for time spent on probation is appropriate, it

may do so.4

      Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.




4
  PTI may last for three years.  N.J.S.A. 2C:43-13(c). We state no opinion as
to whether defendant may be directed to spend longer under PTI supervision
than his probationary sentence imposed after a guilty plea.
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