Opinion
DOCKET NO. A-4374-13T4
04-24-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JAMONT SESSOMS, Defendant-Respondent.
Jason M. Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Richard H. Preston, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Preston, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Haas. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Complaint No. 1222-W-2013-492. Jason M. Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Richard H. Preston, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Preston, of counsel and on the brief). PER CURIAM
The State appeals from the Law Division's May 14, 2014 order reversing the prosecutor's rejection of defendant's application into the Pre-Trial Intervention (PTI) program established pursuant to N.J.S.A. 2C:43-12 and Rule 3:28, and ordering defendant's enrollment into that program. We reverse and remand for further proceedings.
Early in the morning on September 11, 2013, defendant and his two co-defendants "'were at a friend's house in Piscataway hanging out'" and drinking. "'When the party ended[,]'" defendant and his friends "'wanted to continue hanging out and drink, so then they . . . left.'" Defendant drove the three men to a residence in South Plainfield, which was vacant. Defendant brought "a large blue duffel bag" with him "in case there was anything in this abandoned house he could take, and he did." Defendant took "over a dozen letters addressed to various people all with the address of" the vacant home and placed them in the duffel bag.
We discern the facts from the PTI report and the representations made by counsel at oral argument that were based upon the police reports of the incident involved in this matter.
The three men left the vacant home and went to another residence a few doors down the street. It was now approximately 3:50 a.m. The seventy-six-year-old owner of the house (the victim) heard the men knocking on her door and rear window. The victim "went downstairs to investigate, at which time she saw a man, later identified as [one of the co-defendants] slapping the window and shining a flashlight inside her residence." The victim called the police.
A police officer responded to the victim's emergency call with "a K9 partner" and the officer found defendant's duffel bag in the back of the victim's home next to the air conditioner. The officer and his partner searched the adjacent yards, but could not locate defendant and the two co-defendants. The officer then opened the duffel bag and found the letters defendant had taken from the other home. The officer went to the address listed on the letters, but was not able to find the suspects there.
The officer returned to the victim's home and began looking for evidence. He saw fingerprints on the rear window of the residence and footprints on the air conditioning unit. The officer then entered the closed "sunroom located at the rear of" the victim's home "to determine if anyone could have made entry into the house through the sun[room]. Upon entry into the sunroom, the officer noted the defendant and [the two] co-defendants in the fetal position, laying on the floor furthest from the door."
The officer arrested defendant and his two accomplices. At some point, the police went into the vacant house "and there was nothing inside there, and no one else had come to [that] residence other than the [d]efendant and his [co-defendants]." There were also no signs that a party had occurred inside the house. Later that morning, the State issued complaints charging defendant and the two co-defendants with third-degree burglary, N.J.S.A. 2C:18-2a(1), and fourth-degree criminal trespass, N.J.S.A. 2C:18-3a.
In March 2014, defendant applied for admission into the PTI program. On March 25, 2014, the criminal division manager, serving as the PTI director (the director), wrote to the prosecutor and recommended that defendant be admitted into the program. In her report, the director noted that a probation officer spoke to the victim, who reported that
defendant was unable to get in because she called 911 and he was found by the police on her porch. She stated she doesn't know what could have happened since the police came so quickly, nevertheless, she was "very scared, which affected me for a while" because of the defendant's actions.However, the victim told the officer that "if [defendant] were willing to apply himself, she thinks PTI would be a good idea for him and, she would not object to his participation."
Defendant was twenty-one years old at the time of his arrest. The director noted that, as a juvenile, defendant had been charged with a theft-related offense, but completed a diversionary program. As an adult, defendant had two convictions for violations of municipal ordinances. The present case represented defendant's first arrest for indictable offenses.
The parties agree that a prosecutor may not rely upon dismissed or diverted juvenile charges in determining whether to admit an applicant into the PTI program. State v. K.S., 220 N.J. 190, 193 (2015).
In attempting to explain his involvement in the offenses, defendant told the probation officer that he "'was drunk and stupid and me and the [co-defendants] were messing with people's mail from an abandoned house. I had no plan to do anything with the mail. I had the bag. We saw the cops, we tried to hide and hid on a person's porch.'" Defendant did not address why he and his accomplices were knocking on the victim's door and rear window, shining a flashlight inside her house, or standing on her air conditioning unit. Although defendant stated he "was drunk" when he committed the offenses, he told the officer that he still drinks beer "'once a week, [on] weekends[.]'"
Defendant completed a GED program in 2011. He was currently employed at an auto parts store, and said he wanted to attend a technical school and take auto mechanic courses. Defendant also stated, "'I have changed. I have a newborn son.'" However, defendant's son was born prior to the offenses involved in this case. Defendant lived with his mother, step-father and brothers. His son and the child's mother lived elsewhere and defendant stated he provided financial support for the child.
On April 3, 2014, the prosecutor notified defendant that, after considering the director's recommendation for acceptance "and all information about [defendant] that is positive and favorable[,]" he had determined to deny defendant's application for admission into the PTI program. In his written decision, the prosecutor reviewed the facts underlying the offenses, and noted that defendant drove the group to the vacant home and brought a duffel bag with him for the purpose of carrying away any items he stole. Defendant took mail from the first house and then attempted to see if anyone was home in the victim's residence. The three men then entered the victim's closed sunroom.
The prosecutor noted that, although defendant told the probation officer he was intoxicated at the time of the offenses, defendant continued to drink beer on the weekend and had not sought treatment. Finally, the prosecutor stated "the instant offenses were not victimless crimes[,]" and found that defendant and his accomplices planned the offenses. In separate decisions, the prosecutor also denied the co-defendants' applications for PTI.
Defendant filed a motion appealing the rejection. At oral argument, the prosecutor presented additional reasons in support of his decision to reject defendant's application. The prosecutor made clear that he had considered defendant's personal circumstances, as well as the victim's decision not to oppose defendant's application if he "were willing to apply himself . . . ."
In a brief oral decision, the motion judge reversed the prosecutor's determination and admitted defendant into the PTI program. After the State filed its appeal, the judge filed a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b). The judge found that the prosecutor's consideration of the fact that defendant drove himself and his accomplices to the area where the burglary occurred was "specious in that it does not constitute an essential element of the charged offense." The judge also faulted the prosecutor for not producing a "qualitative assessment" of "the character and nature of the mail" defendant took from the vacant house, because the prosecutor did not state "whether it was first class mail or merely junk mail."
The judge disputed the prosecutor's conclusion that defendant planned the offenses and, instead, stated that the vacant home "served as an attractive nuisance to the young people" who merely wanted "to hold a party" with other individuals. The judge opined that defendant and the co-defendants only entered the victim's sunroom "to avoid police detection," and found it significant that defendant did not possess "burglary tools, . . . a mask, [or] gloves, all of which are indicia of planning a burglary."
The judge gave less weight to defendant's weekend "beer drinking" than the prosecutor. The judge reasoned that defendant's "consumption of alcohol is not per se an illegal act." On the other hand, the judge found that the prosecutor should have given more weight to the victim's lack of an objection to defendant's PTI application.
Finally, the judge stated that the prosecutor's written decision did not discuss each of the seventeen PTI factors under N.J.S.A. 2C:43-12(e) and, in a footnote, observed that the prosecutor had granted PTI to "a dentist charged with a second[-]degree crime, aggravated arson[,]" earlier "the same day [defendant's] appeal was heard[.]" This appeal followed.
On appeal, the State argues that the motion judge incorrectly substituted his judgment for that of the prosecutor, and erred by finding that the rejection of defendant from the program constituted a gross and patent abuse of discretion. We agree with the State and reverse.
Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12b. "Admission [into the PTI program] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). A determination whether to admit a defendant is "'primarily individualistic in nature,' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility, prosecutors must consider the factors in N.J.S.A. 2C:43-12(e) and Rule 3:28, and the accompanying Guidelines, which "elucidate the purposes, goals, and considerations relevant to PTI." Negran, supra, 178 N.J. at 80-81 (internal quotation marks and citation omitted).
A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect of 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." Negran, supra, 178 N.J. at 82.
It has been long-established that the scope of judicial review of a prosecutor's decision to reject a defendant's application into PTI is "severely limited." Ibid. Accordingly, courts give prosecutors "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82. "'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, 111-12 (App. Div. 1993)).
Therefore, "[i]n order 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." Watkins, supra, 193 N.J. at 520 (internal quotation marks and citation omitted). "The question is not whether [the court] agree[s] or disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.
Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. We are convinced from our review of the record that the prosecutor considered, weighed, and balanced all the requisite factors, including those personal to defendant as well as the facts and circumstances of the offenses. The fact that the prosecutor's decision explaining the rejection focused on the factors militating against admission to PTI does not mean that the other factors were not considered. Indeed, the prosecutor fully explained all of his reasons for denying the application at the oral argument held on defendant's motion.
In discounting the prosecutor's explanation, the motion judge incorrectly based his decision upon his own assessment of the PTI factors, rather than determining whether the prosecutor failed to consider all relevant facts, and he made findings of fact that were not fully supported by the record. For example, the judge mistakenly stated that defendant and the two co-defendants went into the vacant house with other individuals to hold a party. However, the police found no evidence of any party and nothing in the record indicates that anyone else accompanied defendant and his accomplices to either of the residences. Moreover, although defendant did not possess any burglary tools, he brought the large duffel bag with him to the vacant house so that he could carry away any items he found. Contrary to the judge's criticism, the director's report clearly identified the mail defendant stole as over a dozen letters addressed to the former occupants of the vacant house.
The prosecutor also considered the victim's statement to the probation officer. While the victim stated she did not oppose defendant's PTI application, she also told the probation officer that the incident scared and affected her "'for a while.'" We discern no impropriety in the prosecutor's decision to take the impact of the crime upon the victim into account in denying defendant's application.
Defendant asserts that the State improperly "predetermined its decision to reject" his PTI application because, prior to a pre-indictment conference, the assistant prosecutor told defendant's attorney that "he was going to deny PTI." At the conference, however, the assistant prosecutor made clear that he "need[ed] to see the PTI report" before any decision could be made and defendant applied for PTI following the conference. Therefore, we discern no impropriety here.
--------
The judge stated in a footnote that the prosecutor had approved a defendant in an arson case for the PTI program. However, the individual circumstances of that defendant or the offense are not apparent from the record and, therefore, the prosecutor's decision in that case has no relevance here. Sutton, supra, 80 N.J. at 118-19. Of much greater significance, the prosecutor rejected the PTI applications submitted by the two co-defendants, who were charged with the same offenses as defendant.
The judge disagreed with the weight the prosecutor gave to: defendant's leadership role in driving the group to the neighborhood where the burglaries occurred; defendant's continued weekend drinking, even though he blamed the offense on his alleged intoxication; and defendant's adult convictions for municipal offenses. While reasonable minds could differ in analyzing and balancing these and other applicable factors in this case, judicial disagreement with a prosecutor's reasons for rejection does not equate to prosecutorial abuse of discretion so as to merit a judicial override of the prosecutor's decision. State v. DeMarco, 107 N.J. 562, 566-67 (1987). 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