Opinion
DOCKET NO. A-4502-13T3
06-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PABLO PALAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-02-00116. Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Pablo Palan appeals the September 20, 2013 Law Division order upholding the denial of his application to Pretrial Intervention ("PTI"). We find no abuse of discretion in the PTI denial and, therefore, affirm.
The record establishes the following facts and procedural history. Defendant was charged with third-degree theft after he allegedly reached into a woman's purse and took her cell phone, which had a value of greater than $500. Defendant applied to PTI, but the prosecutor denied that application and sent defendant a letter detailing the reasons for the PTI denial. Defendant then appealed that denial to the Law Division. Following oral argument, the court denied defendant's PTI appeal and issued a written letter opinion explaining that ruling.
Thereafter, defendant pled guilty to third-degree theft, in exchange for a recommendation of time served as a condition of non-custodial probation and twenty-five hours of community service. Defendant was then sentenced in accordance with the plea agreement to time already served and three years of probation. As part of the sentence, defendant was also ordered to pay the mandatory minimum fines, assessments and penalties. Pursuant to Rule 3:28(g), defendant now appeals the Law Division's denial of his PTI application.
PTI "is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). The goal of PTI is to allow, in appropriate situations, defendants to avoid the potential stigma of a guilty conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 347-48 (2014).
PTI is governed by statute and court rule. See N.J.S.A. 2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2015). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)). "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." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see also State v. Negran, 178 N.J. 73, 82 (2003) (stating that courts must "allow prosecutors wide latitude").
"Thus, the scope of review is severely limited." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246). Reviewing courts must accord the prosecutor "extreme deference." Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("great deference should be given to the prosecutor's determination not to consent to diversion."). To overturn a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007), aff'd, 193 N.J. 507 (2008). "[I]nterference by reviewing courts is reserved for those cases needed 'to check [] the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82) (internal quotation marks omitted). We apply the same standard of review as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).
On this appeal, defendant makes two arguments:
POINT I: THE PROSECUTOR COMMITTED A PATENT AND GROSS ABUSE OF DISCRETION BY [MISAPPREHENDING] THE NATURE OF THE CASE, FAILING TO CONSIDER RELEVANT FACTORS, AND REJECTING THE DEFENDANT'S APPLICATION FOR ADMISSION TO THE PRE-TRIAL INTERVENTION PROGRAM FOR AN OFFENSE FOR WHICH A CITIZEN WOULD HAVE BEEN ACCEPTED.
POINT II: DEFENDANT SHOULD BE ALLOWED TO WITHDRAW HIS PLEA BECAUSE THE PLEA FORM DID NOT MAKE THE IMMIGRATION CONSEQUENCES OF HIS PLEA CLEAR AND AT THE HEARING THE JUDGE ONLY ADDED TO THE CONFUSION AND MISINFORMATION. U.S. CONST., Amend. XIV; N.J. CONST. Art. I, ¶¶ 1, 10. (Not Raised Below).
The first argument is not persuasive, and we decline to address the second argument because it was not presented to the trial court and does not concern the court's jurisdiction or a matter of public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); State v. Robinson, 200 N.J. 1, 20 (2009).
I
Defendant argues that the prosecutor only based his denial on two considerations: the nature of the offense, and defendant's "illegal status in the country." That contention is belied by the record. The prosecutor issued a letter explaining that he had reviewed and evaluated all of the relevant information concerning defendant's PTI application. Specifically, the prosecutor stated he considered all seventeen relevant factors under N.J.S.A. 2C:43-12(e) and the guidelines associated with Rule 3:28. The prosecutor then explained that defendant's PTI application was being rejected for a number of reasons. Those reasons included the nature of the offense, the facts of the case, that the victim did not wish to forego prosecution, and the need of society in prosecuting violators. Those reasons are all relevant considerations under N.J.S.A. 2C:43-12(e) and Guideline 3 to Rule 3:28. The prosecutor also considered the personal characteristics of defendant in accordance with N.J.S.A. 2C:43-12(e)(3), but noted that defendant had failed to submit any documents or materials in support of his PTI application.
Moreover, there is nothing in the record that indicates that the prosecutor placed any undue weight on defendant's status as a person born outside of the United States of America. Instead, the prosecutor focused on the nature of the offense (here, pick-pocketing), the potential for a violent confrontation inherent in such a crime, society's need to prosecute such crimes, and the victim's desire for criminal prosecution. All of those considerations are relevant and appropriate considerations under the statute and rule. See N.J.S.A. 2C:43-12(e)(1), (4), (7), (10); Pressler & Verniero, supra, comment on Guideline 3.
In making its decision, the Law Division carefully considered all of defendant's arguments and the reasons of the prosecutor. The Law Division then found that the prosecutor's rejection of defendant's PTI application did not constitute an abuse of discretion. We agree.
II
Defendant did not file a motion to withdraw his guilty plea. Consequently, that issue is not properly before us and we will not address it. See State v. Walker, 385 N.J. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006) (stating that appellate courts will generally refrain from considering issues raised for the first time on appeal "unless they are jurisdictional in nature or substantially implicate public interest." (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))); see also Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citing State v. Robinson, 200 N.J. 1, 20 (2009)); Finderne Heights Condo. Ass'n v. Rabinowitz, 390 N.J. Super. 154, 166 (App. Div. 2007) (citing Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2007)). Here, the withdrawal of defendant's guilty plea does not involve jurisdiction and does not implicate a matter of public interest. Consequently, we will not address that issue.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION