Opinion
DOCKET NO. A-0472-15T2
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.W.M., JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Eric P. Knowles, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Koblitz and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-10-1613. Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Eric P. Knowles, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant J.W.M., Jr. appeals from his September 10, 2015 conviction for child abuse, arguing he should have been admitted to the pretrial intervention program (PTI) over the objection of the Hudson County Prosecutor's Office. As a result of a domestic violence incident, defendant was indicted for second-degree pointing a handgun at his long-time, live-in girlfriend's fifteen-year-old daughter, N.J.S.A. 2C:12-1(b)(4); second-degree possession of the handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); second-degree endangering the welfare of the teenager, N.J.S.A. 2C:24-4(a); and fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3. He applied to PTI and was accepted by the program director, but rejected by the prosecutor. Defendant appealed and the appeal was denied by the Law Division judge. We affirm.
Defendant's mother, his son and the victim gave statements to the police corroborating that defendant entered the teenager's bedroom with a handgun and pointed it at the child. Later, after defendant was separated from his family, the victim recanted her statement. About two weeks after his rejection from PTI was upheld, defendant pled guilty to fourth-degree child abuse, admitting he had pointed his gun at the victim during a heated family argument. He was placed on probation for one year.
Defendant raises the following issues on appeal:
POINT I: THE PROSECUTOR'S REJECTION OF THE PTI APPLICATION OF THIS THIRTY-NINE-YEAR-OLD DEFENDANT WITH NO PRIOR CRIMINAL HISTORY DEMONSTRATED A PATENT AND GROSS ABUSE OF DISCRETION, AND MUST BE REVERSED.
A. THE PROSECUTOR'S REJECTION WAS NOT PREMISED ON A CONSIDERATION OF ALL RELEVANT FACTORS WAS [SIC] BASED ON A CONSIDERATION OF IRRELEVANT OR INAPPROPRIATE FACTORS.
B. THE REJECTION AMOUNTED TO A CLEAR ERROR IN JUDGMENT AND CLEARLY SUBVERTED THE GOALS UNDERLYING THE PTI PROGRAM.
As statutorily established in N.J.S.A. 2C:43-12(e) and as implemented in our criminal courts under Rule 3:28, PTI is a discretionary program. Admission into PTI requires a positive recommendation from the program director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12(e)(1) through (17).
Given "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). That deference to the prosecutor has been described as "'enhanced' or 'extra' in nature." Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)).
Consequently, the scope of judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. Ibid. As the Court noted in Negran, judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
Thus, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his [or her] discretion' before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246). That standard, which also governs appellate review, requires the following showing:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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. 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 will clearly subvert the goals underlying Pretrial Intervention.
[Id. at 83 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]Because defendant was charged with second-degree crimes, he had to demonstrate "'extraordinary and unusual' circumstances" demonstrating that a "'serious injustice'" would occur should he not be admitted into PTI. State v. Roseman, 221 N.J. 611, 624 (2015) (quoting Nwobu, supra, 139 N.J. at 252).
One of several reasons the judge gave for not overruling the prosecutor was because defendant needed "a level of supervision for a protracted period of time combined with, perhaps, counseling." Defendant argues that the one year of probation he received after pleading guilty was within the supervision period permissible under PTI and does not constitute a "protracted period of time." See R. 3:28(d) (allowing up to thirty-six months of PTI supervision). Although defendant's sentence of probation did not exceed the time he could have been under PTI supervision, we agree with the motion judge that the Hudson County Acting Prosecutor did not abuse his discretion in rejecting defendant from PTI. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (reciting the well-settled principle that "if the order of the lower tribunal is valid, the fact that it is predicated upon an incorrect basis will not stand in the way of its affirmance"), abrogated on other grounds by Commercial Realty & Res. Corp. v. First Atl. Props. Co., 122 N.J. 546 (1991).
Among the reasons offered by the prosecution, citing to N.J.S.A. 2C:43-12(e)(7), (14) and (17), was that "cases such as this that combine domestic violence, child victims and firearms must be vigorously prosecuted and punished. PTI is not the appropriate forum for this type of case." Defendant purportedly pointed his handgun at the teenager and said: "You're gonna be first." The prosecutor did not exercise a patent and gross abuse of discretion by rejecting defendant from the PTI program, nor did a serious injustice occur as a result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION