Opinion
DOCKET NO. A-2011-11T2
04-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. K.S., Defendant-Appellant.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor; Mr. McConnell, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-02-0091.
Peter T. Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).
James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor; Mr. McConnell, of counsel and on the brief). PER CURIAM
Defendant K.S. appeals from the December 10, 2010 Law Division order denying his motion to compel admission into the pre-trial intervention (PTI) program over the objection of the PTI director and the county prosecutor. We affirm.
The facts relevant to the issues raised on appeal are as follows. At approximately 1:30 a.m. on the morning of December 19, 2009, Sergeant Gene McAllister of the Watchung Police Department saw defendant enter a shopping center parking lot while driving at a high rate of speed. Defendant proceeded through two stop signs without hesitating, exited the parking lot without stopping at a third stop sign, and drove onto Route 22 headed westbound. Sergeant McAllister activated his emergency lights, but defendant moved from the right lane to the center lane of the roadway, only stopping when he came to a red light. At that juncture, once the light turned green, defendant pulled over.
As the officer approached the car, he detected a strong odor of alcohol on defendant's breath. He administered field sobriety tests; defendant failed them all. As a result, defendant was placed under arrest for driving while intoxicated, N.J.S.A. 39:4-50.
While being transported, defendant became quite agitated. When the sergeant attempted to remove him from the patrol car, defendant began to strike and body-check him, despite being handcuffed. Defendant spit a mixture of saliva and blood at the sergeant. Backup officers helped Sergeant McAllister bring defendant into the station processing area. In the course of the struggle, defendant was pepper sprayed in the eyes. Defendant continued to resist, smashing a telephone in the process and causing approximately $1,308 in damages. After being subdued and receiving first aid, he refused to submit to a breath test.
Defendant was eventually indicted for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree throwing bodily fluid, N.J.S.A. 2C:12-13; third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). Summonses were issued for driving while intoxicated, N.J.S.A. 39:4-50, and refusal to submit to a breath test, N.J.S.A. 39:4-50.2.
Defendant's initial appeal from denial of PTI was heard on October 1, 2010. He brought to the court's attention his psychiatric history for bipolar disease, which the program director and the prosecutor's office had not considered in reviewing his application. Defendant's counsel noted that a rejection was never received from the prosecutor's office, only from the PTI program director. Because it was unclear if the assistant prosecutor who was involved in reviewing the application was aware of defendant's psychiatric issues, the court directed that the medical records be submitted to the prosecutor's office for what he described as a "de facto remand."
The PTI director's initial rejection stated:
The instant offense was assaultive in nature and could have resulted in injury to the defendant or the officer involved. The public need for prosecution outweighs the value of supervisory treatment and sends the message that assaults on police will not be tolerated. Additionally the defendant has a history of arrests dating back [to] 2003 including a prior Aggravated Assault as a juvenile for which he was granted a diversion, demonstrating a continuing pattern of anti-s[oc]ial behavior as well as a history of using physical violence towards others.In the pre-printed sections of the letter, which included a printed checklist of considerations, defendant's crime was described as "constitut[ing] part of a continuing pattern of anti-social behavior," "of an assaultive or violent nature" and of such kind "that the public need for prosecution outweigh[ed] the value of supervisory treatment."
At the December 10, 2010 oral argument on defendant's motion for admission, the county prosecutor clarified that by the time of the October 1, 2010 motion, he had received and considered a doctor's letter regarding defendant's diagnosis. He argued, however, in accordance with his written submissions, that despite defendant's mental health status, he should not be admitted into PTI.
The judge declined to admit defendant over the prosecutor's objection, stating the following:
The State argues that where the crime is deliberately committed with violence or a threat of violence against another person, the defendant's application should generally be rejected. That is the presumption against admission. Defendant struck the police officer numerous times, hip-checked him, spit on him. And in this case, the victim does not agree to forego prosecution, which is a consideration, albeit, minor.
The State now, upon I suppose what might be characterized as a de facto remand for reconsideration, has considered all of the factors and maintains its position to reject defendant's PTI application. The State cites the defendant's history of aggressive and assaultive behavior. And although I do not find that that's a continuing pattern of criminal conduct, it is repetitive, aggressive, and assaultive behavior.
Thus, the State argues, given its discretion in accepting and rejecting PTI applications, in consideration of all of the factors, and applying an enhanced standard of deference to the State's decision, there is no abuse [of] discretion in rejecting the application.
It is the opinion of this Court that when appealing the denial of an application for admission into PTI, a defendant must clearly and convincingly establish that the prosecutor's refusal to sanction admission was a patent and gross abuse of discretion. . . . [T]he use of qualifiers such as patent and gross abuse of discretion as opposed to an ordinary abuse of discretion, clearly and convincingly establish, underscore the enhanced deference required
by Courts in review of prosecutorial decisions. In State vs. Bender, 80 N.J. 84, the Supreme Court defined patent and gross abuse of discretion as being manifest if a defendant can show that a prosecutorial veto was not premised upon consideration of all relevant factors, was based on a consideration of irrelevant or inappropriate factors, or amounted to a clear error in judg[]ment. In order for such an abuse of discretion, and that only gets you to an abuse of discretion, in order for it to rise to the level of patent and gross, it must further be shown that the prosecutorial error will clearly subvert the goals of Pre-Trial Intervention.
. . . .
The applicant has not shown compelling reasons by clear and convincing evidence justifying admission into the program by judicial order over the objection of the State. I believe that [K.S.] is amenable to rehabilitation. And I'll just offer the gratuitous comment that that rehabilitation is available in the ordinary course of criminal prosecution. And I'll say further, that based upon what I've seen in this case, I don't believe that any period of incarceration is indicated as in any way being consistent with [K.S.]'s rehabilitation. I hope I'm adequately telegraphing my feelings on how I might like to see this matter resolved.
But the point is, the Prosecutor has made a decision and it is not this Court's place or within its authority to substitute its own judgment for that of the Prosecutor. I do not believe the Prosecutor's decision was wrong or unduly harsh, I do not believe it was a clear error in judgment or subverts the goals of PTI.
. . . It is clear now that the State has taken into account the defendant's depression and bi-polar disease and the State recognizes that that does provide insight into his violent behavior. And in considering it, the State has met its obligation. The State has provided ample support for its decision to reject [K.S.] from PTI. It is entitled to enhanced deference under Kraft and the fact that defendant suffers from and has shown to the satisfaction of this Court manifestations of bi-polar disorder and depression, does not render the State's decision an abuse of discretion. This may be a mitigating factor but not one compelling defendant's PTI admission.
Defendant's argument previously made, that his bi-polar disorder was not adequately considered, has now been cured. In considering the totality of the circumstances and all of the factors applicable to this case and which were considered in the decision making process on the part of the State, the Court finds the State did not abuse its discretion in rejecting defendant's PTI application and therefore, defendant's appeal will be denied.
Thereafter, on June 24, 2011, defendant entered a guilty plea to all four counts of the indictment in exchange for the State's recommendation that he be sentenced to concurrent terms of two years probation, conditioned upon community service and payment of restitution. On the refusal charge, defendant's license was suspended for the mandatory six months, he was required to pay a $300 fine, and to attend the Intoxicated Driver Resource Center. Appropriate surcharges, costs, fines, and penalties were also imposed. Defendant was sentenced in accord with the plea agreement on September 2, 2011.
On appeal, defendant raises the following point:
POINT I
IN REJECTING [K.S.]'S PTI APPLICATION, THE DIRECTOR AND PROSECUTOR RELIED ON IMPROPER CONSIDERATIONS AND IGNORED CONSIDERATIONS FAVORING PTI; THEREFORE, [K.S.]'S APPLICATION SHOULD BE REMANDED FOR RECONSIDERATION.
A. The Prosecutor and Director Improperly Inferred [K.S.]'s Guilt of Dismissed Charges and Thereby Improperly Found that He Had a History of and Propensity for Violence and Had Engaged in a Continuing Pattern of Antisocial Behavior. (partially raised below).
B. The Prosecutor Improperly Found that Two Unrelated Assault Allegations -- One from 2003 and the Present One from 2009 -- Were Part of a Continuing Pattern of Antisocial Behavior.
C. The Prosecutor Ignored Considerations Favoring PTI by Failing to Consider Whether [K.S.]'s Bipolar Disorder Made Him Amenable to Supervised Treatment and Rehabilitation.
We have considered these arguments in light of the record and the applicable legal precedents and find them unpersuasive.
Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admissions into PTI are governed both by statute, N.J.S.A. 2C:43-12(a)(1), and court rule, R. 3:28; see Guidelines for Operation of Pre-Trial Intervention in New Jersey, Pressler & Verniero, Current New Jersey Court Rules, Guideline 1 at 1124 (2013). The scope of judicial review is "severely limited," and interference by reviewing courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord State v. Nwobu, 139 N.J. 236, 246 (1995).
We review PTI decisions with enhanced deference. State v. Brooks, 175 N.J. 215, 225 (2002); State v. Baynes, 148 N.J. 434, 443 (1997). A defendant seeking to overturn rejection from PTI must demonstrate by clear and convincing evidence that the decision rejecting his application was a "patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008).
The Supreme Court has noted that if a rejected defendant can prove that the decision "(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," then an abuse of discretion would "be manifest." State v. Bender, 80 N.J. 84, 93 (1979). But in order to raise that presumption to the level of a "patent and gross" abuse of discretion, defendant must also establish that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. It may be appropriate to reverse a decision rejecting a defendant from PTI where it is "'contrary to the predominant views of others responsible for the administration of criminal justice,'" Nwobu, supra, 139 N.J. at 253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)), such that it is "'clearly unreasonable so as to shock the judicial conscience'" or that it "'could not have reasonably been made upon a weighing of the relevant factors,'" id. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).
Defendant's arguments do not meet that high standard. First, he asserts that the prosecutor and director improperly relied upon his criminal history, which included a diversion and intake service conference when he was seventeen for assault, disorderly conduct, and harassment; and three arrests as an adult. In July 2005, defendant was arrested for obstructing the administration of law, which charge was ultimately dismissed. In April 2006, he was arrested for being under the influence, although that charge was also ultimately dismissed. Finally, in February 2008, defendant was arrested for possession of marijuana, and that charge was dismissed. Defendant contends that these arrests do not establish a pattern of violence; therefore, the program director and prosecutor erred by relying upon defendant's limited criminal history, when he had no prior convictions or juvenile adjudications per se.
Regardless of the merits of that argument, a juvenile intake conference, although ultimately resulting in a dismissal of the charges, is a prior diversion of a charge — in some respects similar to admission to PTI — which is a factor that both the director and the prosecutor could take into consideration, although they gave it slight weight. By way of context, we note that defendant was only twenty-three years old when the offenses at issue occurred.
Defendant also asserts that the prosecutor ignored defendant's bi-polar disorder, and whether treatment of that condition would make him more amenable to supervised treatment and rehabilitation. Clearly, the prosecutor's focus was on the assault upon the arresting officer, despite defendant being handcuffed, and his act of spitting blood and saliva upon him. Sergeant McAllister objected to defendant's admission into PTI, a factor the prosecutor also took into consideration although it was not dispositive. Certainly, the prosecutor acknowledged that defendant was not convicted, only arrested, for other offenses. But that reliance was not improper. See Brooks, supra, 175 N.J. at 228-29.
That defendant suffers from mental health problems, to the prosecutor, did not make him a better candidate for PTI. If anything, his medical records established that the short-term period of supervision afforded by PTI would not benefit defendant given the long-standing and seemingly intractable nature of his disease.
Defendant's argument is simply unpersuasive. After considering all the relevant factors in defendant's personal history, from arrests to psychiatric reports, the prosecutor continued to opine that defendant's violent conduct precluded him from PTI. That conclusion is neither an egregious example of injustice or unfairness nor is it a patent and gross abuse of discretion which warrants our intervention.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION