Opinion
DOCKET NO. A-0782-12T2
03-20-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. WILLIAM POLLARD, Defendant-Respondent.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Gary A. Thomas, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Happas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0755.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Gary A. Thomas, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals from an order admitting defendant, William Pollard, into the Pretrial Intervention Program (PTI) over the prosecutor's objection. The State argues that its decision to reject defendant's PTI application was based upon a thorough consideration of all appropriate factors and did not constitute a gross and patent abuse of discretion, as a result of which the judge erred in overriding the State's decision. We agree with the State and reverse.
On September 4, 2011, at approximately 12:09 a.m., four officers with the Irvington Narcotics Enforcement Team observed a U-Haul truck parked with two occupants, later identified as defendant and his passenger, Jeffrey McQueen. As the officers drove by the U-Haul, the passenger, whose face was wrapped in a scarf, ducked. As a result of this suspicious behavior, the officers approached the vehicle.
Defendant was asked to provide his driving credentials, to which he responded that he did not have a driver's license. When requested to exit the U-Haul, the defendant offered that he and his passenger had just arrived and were waiting to help an unidentified woman move some furniture. One of the officers observed a handgun on the front driver's side floor. Thereafter, four bullets were found in defendant's pocket. The defendant stated that he obtained the handgun from the home of the unidentified woman and that the handgun belonged to him and not his passenger. He did not have a permit to carry a handgun. At the time of defendant's arrest he had outstanding arrest warrants from three towns for motor vehicle offenses. It was later determined that the defendant's weapon had been used in a prior shooting.
Defendant was indicted for second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (count one); and fourth-degree receiving handgun ammunition without a proper license or permit, N.J.S.A. 2C:58-3.3. He applied for admission to PTI. At the time of his interview with criminal case management he alleged that, while in the process of moving, he found the handgun in the bushes near a dumpster with four bullets next to it. He seized the handgun because there were kids playing nearby. He secured it in the U-Haul and placed the four bullets in his pocket. Defendant provided no explanation as to why he did not tell this to the officers at the time of the incident, nor did he provide any explanation why he believed it was secure on the floor next to his feet in the U-Haul.
The PTI Director and the prosecutor concluded that defendant should not be admitted into PTI. Defendant appealed to the Law Division pursuant to R. 3:28(h). The court heard oral argument and rendered both an oral decision and a written opinion granting defendant's application to be admitted to the PTI program.
The State argues on appeal that its decision to decline to admit defendant into PTI was not a patent and gross abuse of discretion and the trial judge improperly substituted her judgment for that of the State.
Admission to the PTI program is based on a favorable recommendation from the PTI Director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In determining whether to recommend or consent to admission, the PTI Director and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e). The statutory list is not exhaustive, and additional relevant factors may also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002).
The scope of judicial review of the prosecutor's decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to the prosecutor's decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).
Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "'clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion.'" State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382); accord Baynes, supra, 148 N.J. at 444.
The PTI Guidelines provide that "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program. . . ." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1105 (2012). Although it is appropriate to reject a PTI application when the nature of the offense is presumptively disqualifying, State v. Caliguiri 158 N.J. 28, 36 (1999), that presumption does not end the inquiry. The defendant may still be admitted if he shows "compelling reasons" to be admitted to PTI. Ibid.; see Pressler & Verniero, supra, Guideline 3(i); Nwobu, supra, 139 N.J. at 252-53.
Issues concerning the propriety of the prosecutor's consideration of relevant PTI factors are akin to "questions of law"; their resolution requires a determination as to whether that factor was legally cognizable given the underlying policies of PTI. State v. Maddocks, 80 N.J. 98, 104-05 (1979). Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error. Id. at 105.
The State gave significant emphasis to the circumstances of the offenses but it also considered defendant's individual characteristics. The State considered mitigating factors personal to defendant, including his age, family background, honorable military service, lack of indictable convictions, lack of prior history of violence or involvement with organized crime, and his educational and employment activities.
Against those mitigating factors, the State took into consideration the needs of society, including as a policy matter, the need to deter the senseless criminal use of handguns. The State considered the initial justification for the stop and the defendant's inconsistent explanations for his possession of a handgun that was used in a prior shooting. The State also determined that the offenses may be part of a continuing pattern of defendant's anti-social behavior. In 2000, a complaint against the defendant for receiving stolen property was dismissed. In 2007, defendant was charged with driving with a suspended license and two counts of giving a false name, address and birth date to a law enforcement officer. Defendant was placed on probation for one year. Less than four years elapsed between the date of this incident and the termination of his probation. Here, when the police approached the parked vehicle, defendant admittedly had no license and there were three outstanding warrants for his arrest for motor vehicle violations.
The State further analyzed the particular facts of this case. Significantly, shortly after midnight, and without a permit, the defendant possessed an unsecured handgun and ammunition in an occupied vehicle. The State concluded that this type of conduct could produce injurious consequences.
The trial judge gave the following reasons for overruling the prosecutor's decision: (1) defendant is of appropriate age and satisfies the residency and jurisdictional requirements; (2) the violation is not so minor that PTI is inapplicable; (3) defendant has no significant prior record; (4) defendant will be harmed by a criminal sanction since it will affect his employability; (5) defendant has no documented history of violence; (6) there is no reported history of abuse of illicit drugs or alcohol; (7) there are no co-defendants; (8) defendant is an honorably discharged United States Marine; and (9) defendant successfully completed a prior probationary sentence. The trial judge also opined in her written opinion that "defendant acted to secure the gun. Defendant's act of removing and securing the weapon was arguably an act of good citizenship."
We are convinced from our review of the record that the prosecutor considered, weighed, and balanced all of the requisite factors, including those personal to defendant as well as the facts and circumstances of the offense. The prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion.
Defendant has fallen short of the requisite showing of compelling reasons to override the prosecutor's decision in this case. Reasonable minds could differ in analyzing and balancing the applicable factors in this case. However, judicial disagreement with a prosecutor's reasons for rejection does not equate to prosecutorial abuse of discretion so as to merit judicial override. State v. DeMarco, 107 N.J. 562, 566-67 (1987). In this instance, the trial judge improperly substituted her own discretion for that of the prosecutor. We are therefore constrained to reverse.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION