Opinion
DOCKET NO. A-2128-13T3
06-18-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. A.M., Defendant-Respondent.
Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-0845.
Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
Michele E. Friedman, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Friedman, of counsel and on the brief). PER CURIAM
The State appeals from an order of the Law Division admitting defendant A.M. to the Pretrial Intervention Program (PTI) over the prosecutor's objection. We affirm.
PTI is a program for diversion of eligible defendants from criminal prosecution and conviction. N.J.S.A. 2C:43-12 to -22; R. 3:28. It entails a period of supervision of the defendant, after which the criminal charge will be dismissed if the defendant has not committed any other offense and has successfully completed the requirements of the program. See N.J.S.A. 2C:43-13. The PTI program is ordinarily intended for first-time criminal offenders. N.J.S.A. 2C:43-12(a). Admission to the program requires a favorable recommendation from the PTI director and the consent of the prosecutor. N.J.S.A. 2C:43-12(e); State v. Nwobu, 139 N.J. 236, 246 (1995).
In this case, a Middlesex County grand jury indicted defendant on one count of second-degree endangering the welfare of her two children, N.J.S.A. 2C:24-4(a). She applied for PTI enrollment. The program director investigated the charge and defendant's personal circumstances, and recommended her admission to the program. The prosecutor, however, rejected defendant's application.
We derive the relevant facts of the offense and defendant's personal history from the PTI director's report.
Defendant was twenty-nine years old and raising her two-and three-year-old children alone. She had separated from her husband in November 2011, after a series of domestic violence incidents. Her husband was not providing financial support. Defendant was employed as a secretary in New Brunswick, and she hoped to begin nursing classes in September 2013. She does not have a criminal record.
We do not state defendant's name in this opinion because she was allegedly a victim of domestic violence. See R. 1:38-3(c)(12).
On April 19, 2013, at about 4:30 p.m., Piscataway Township police were summoned when defendant's two children were found alone in the street and in diapers. A concerned adult had come to their rescue, and the children were connected to defendant because they were accompanied by a dog wearing a dog tag. The police determined the children's home was about a block away from where they were found. The police were familiar with the address because of the prior domestic violence calls. The police found a back door of the home ajar and no one home. They called defendant's cell phone. She said she had been taking a nap earlier and was now searching for the children. That statement was not true. When defendant arrived twenty minutes later, the police determined that she had been at her place of employment. She then admitted she had left the children alone in the home sleeping in their cribs, and she had gone to work. She had a three-hour shift from 3:00 to 6:00 p.m. and had been unable to find anyone to babysit or to check on the children.
Defendant said her mother-in-law had been babysitting for the children for the past one-and-a-half years when defendant had to work, but her mother-in-law had started a new job that month and could no longer watch the children. Defendant's mother had taken time off from her job the previous day to babysit, but defendant could not ask her mother to miss another work day. Defendant had applied earlier in the month to place her children in a daycare program, but the program had no openings until the beginning of the following month.
On the day of the incident, defendant could not find a babysitter, and she felt enormous pressure not to miss her work shift, fearing she would lose her job. She said she had put the children in their cribs shortly after 2:00 p.m., and they were asleep when she left to go to her job at 2:45. She expected them to sleep until she returned home after 6:00.
The police charged defendant with endangering the welfare of her children and initially lying to the police, and she was arrested and held in custody. The State Division of Child Protection and Permanency (DCPP, formerly DYFS) took temporary custody of the children and placed them with relatives.
About three weeks later, DCPP returned legal and physical custody of the children to defendant. DCPP reported to the PTI director that defendant had been cooperative and was attending counseling. She enrolled in a parenting class, and subsequently completed it successfully during the summer of 2013. When the DCPP caseworker visited defendant's home to check on the children, including unannounced visits, she observed defendant to be "a loving, attentive, and caring mother." Defendant was "complying with all mandated services, and [was] available to [DCPP] as needed." Defendant felt deep remorse for endangering her children. DCPP was in favor of diversion of the prosecution through the PTI program.
Based on all the evidence and relevant factors, the PTI director concluded that defendant was eligible for and amenable to PTI supervisory treatment and recommended her admission.
On August 20, 2013, the Middlesex County Prosecutor's Office issued a letter rejecting defendant's admission. The assistant prosecutor described the facts of the offense and asserted that the crime was not victimless. He noted that defendant intended to enroll in a nursing school and stated "the State cannot in good conscience agree to a resolution that would help to further that endeavor." According to the assistant prosecutor, the State had an obligation to prosecute defendant criminally because enrollment in the PTI program would assist her "in pursuing a profession where she would be in a position to be responsible for the care of others."
As permitted by Rule 3:28(h), defendant appealed the prosecutor's rejection to the Superior Court, Law Division. She presented the facts and personal circumstances we have described and argued that the prosecutor had not taken into consideration all the relevant statutory factors.
In determining whether to consent to admission, the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e), and also certain additional factors, policies, and objectives of the PTI program as described in Guideline 3 of Rule 3:28. Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules (2014) ("Guideline(s)"). These lists are 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 seventeen factors are:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.
[N.J.S.A. 2C:43-12(e).]
The rejection letter of August 20, 2013, stated that the prosecutor had reviewed the program director's and other investigative reports, and that defendant's application was denied based on the factors listed at N.J.S.A. 2C:43-12(e)(1), (2), (7), (14), and (17). Subsequently, the prosecutor's opposition to defendant's Law Division appeal again referenced the same five factors. The prosecutor did not address specifically the other twelve factors listed in the statute or make any reference to Guideline 3 of the court rules.
The Law Division issued a written opinion and order by which it overruled the prosecutor's objection and admitted defendant to the PTI program. The court's opinion referred to the statutory factors as well as the guidelines. Citing State v. Leonardis, 71 N.J. 85, 111-12 (1976), the Law Division stated that "emphasis should be placed on the individual offender and a potential for rehabilitation rather than on the offense." The court concluded that defendant had shown "compelling reasons sufficient to demonstrate her amenability to correction and responsiveness to rehabilitation and that the benefits of diversion outweigh the need for prosecution."
The court's order of December 23, 2013, set specific conditions for defendant's PTI diversion. It required that defendant "be enrolled for the maximum program term, be required to follow all recommendations of [DCPP], complete any programs [in] which she is currently enrolled successfully, pay all mandatory fines and penalties, [and] continue to maintain employment and remain in school." The Middlesex County Prosecutor's Office appeals from that order.
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 that 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) (alteration in original) (quoting Leonardis, supra, 73 N.J. at 382); accord Baynes, supra, 148 N.J. at 444.
Here, the State contends the Law Division did not grant enhanced deference to the prosecutor's decision and substituted its own judgment for that of the prosecutor. The State argues the Law Division's opinion overrules the prosecutor based on an abuse of discretion standard rather than a gross and patent abuse of discretion standard. The Law Division's opinion, however, recognized the correct standard of judicial review. The fact that the opinion did not repeat the phrase "patent and gross abuse of discretion" may have been a matter of avoiding explicit harsh criticism of the prosecutor rather than a failure to adhere to the appropriate standard of review.
In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court explained in greater detail the meaning of patent and gross abuse of discretion in the PTI context:
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.
[(Citations omitted).]
In this case, the prosecutor's two letters explaining defendant's rejection discussed the nature of the offense and emphasized that the children were victimized by defendant's conduct. The assistant prosecutor concluded that the interests of the public required defendant's prosecution so that, with a criminal conviction on her record, defendant would presumably not qualify to become a nurse. Nowhere in the two letters did the prosecutor explain his consideration of the other factors that are relevant to admission or rejection of an applicant.
Although Guideline 3(i) states that a "defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor," the prosecutor's rejection letters did not cite that Guideline as an additional reason to reject defendant. The presumption against admission because defendant was indicted on a second-degree crime may be overcome, if defendant can show compelling reasons. Nwobu, supra, 139 N.J. at 252-53. Here, the Law Division judge found that defendant had shown compelling reasons for her admission.
On appeal, the State again does not rely on Guideline 3(i) but argues that the prosecutor considered all the relevant facts and that the Law Division so found in its written opinion. But the prosecutor's statement that all facts had been considered was merely an assertion without elaboration. Nothing in the prosecutor's two letters made reference to statutory factors peculiar to defendant's individual circumstances or those that otherwise favored her application.
Of the seventeen factors listed in N.J.S.A. 2C:43-12(e), at least eleven clearly favor defendant's application. The prosecutor did not address factor (3), defendant's age and her motivation for committing the offense; factor (5), her personal problems related to the offense; factor (6), the conduciveness of her offense to positive change through supervisory treatment, positive change that had already occurred as a result of her sincere remorse, and her participation in parenting and counseling programs arranged through DCPP; factor (8), the lack of any evidence that defendant's offense was part of continuing anti-social behavior; factor (9), the absence of a criminal record and any danger to others; factor (10), the nature of the crime not being assaultive or violent; factor (11), that a criminal conviction would exacerbate the social problem that led to defendant's offense, namely, her financial distress in raising her children as a single parent; factor (12), no history of physical violence toward others; factor (13), no involvement with organized crime; and factors (15) and (16), no effect on the prosecution of others. The prosecutor's letters gave no indication that these factors were actually considered and weighed in the balance. Thus, the prosecutor abused his discretion because he did not consider all the relevant factors. See Wallace, supra, 146 N.J. at 583; Bender, supra, 80 N.J. at 93.
Of the five factors explicitly listed by the prosecutor, only factors (1) and (2), the nature of the offense and the facts of the case, can be readily marked as supporting the prosecutor's decision. As to factor (7), the needs and interests of the victims and society, the prosecutor did not mention the needs of the two children for their mother's care and her ability to work in as financially advantageous a position as she can obtain to support them. Nor did the prosecutor seem to consider the needs and interests of society in rehabilitating this mother for the sake of her children and herself, an interest that DCPP recognized when it provided services to defendant and recommended that she be admitted to the PTI program because of her success in utilizing those services. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012) (DCPP's "goal of reunification" of a parent and child).
Factors (14) and (17) cited by the prosecutor are a matter of debate and judgment. They require a weighing of the need for prosecution because of the nature of the offense and the harm to society if prosecution is abandoned in favor of supervisory treatment. Those factors can be argued in favor of prosecution or in favor of defendant's PTI enrollment. They are not clear-cut considerations, but nevertheless, the highly deferential standard of review requires that we accept the prosecutor's evaluation of those factors.
The prosecutor's decision fell short of the statutory requirements because it failed to take into account the personal circumstances of defendant that led to the offense, and the needs of the children and society in reuniting this family and facilitating the efforts of a highly remorseful mother to care for her children properly while also supporting them financially. See State v. Mickens, 236 N.J. Super. 272, 278-79 (App. Div. 1989). "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Baynes, supra, 148 N.J. at 442 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).
The prosecutor's decision was a patent and gross abuse of discretion because ignoring the factors pertinent to defendant individually subverted the goals of PTI diversion. By rejecting defendant solely on the basis of offense factors, and on the basis of reasoning that DCPP and the PTI director did not find persuasive, the prosecutor's abuse of discretion rose to the enhanced level that permitted judicial intervention. See Mickens, supra, 236 N.J. Super. at 277 ("individualized evaluation is at the heart of the program").
In sum, we conclude this is the rare case where defendant demonstrated by clear and convincing evidence that the prosecutor's rejection of her PTI admission was a patent and gross abuse of the prosecutor's discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION