Opinion
DOCKET NO. A-5461-13T2
12-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERMAINE CHAMBERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-11-2069. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jermaine Chambers appeals from the Law Division order denying his motion to compel his enrollment in the pre-trial intervention (PTI) program over the prosecutor's objection. Defendant was charged in a two-count, November 12, 2013 Hudson County indictment with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. Prior to applying for PTI, however, defendant pled guilty to an amended charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant argues that in denying PTI admission, the prosecutor: "(1) focused exclusively on [his] offense, (2) relied on factors that did not support exclusion, and (3) failed to consider factors that supported admission" into PTI. The State requests that we affirm the order.
Having considered the parties' arguments in light of the record and applicable law, we reverse the trial court's order, but remand for further consideration. We do so because the prosecutor failed to consider all of the relevant factors. Under such circumstances, even if a patent and gross abuse of discretion has not been established, a remand is appropriate. See State v. K.S., 220 N.J. 190, 200 (2015).
I.
We derive the following facts and procedural history from the record on appeal. At approximately 2:30 a.m. on May 19, 2013, defendant encountered the victim (Link) at a bar. In 2009, Link had stabbed defendant during an altercation between the two men. Link was convicted and sentenced to three years in prison for this offense. Link had only recently been released when he and defendant met by "chance" in the bar.
Link told the police that "he attempted to leave the bar and was stopped by [defendant] outside on the street." Link stated "he was assaulted by [defendant] and an unknown group of his male associates." After the assault, Link was taken by ambulance to the hospital and "treated for lacerations to his head and face, bruising to his back and abdomen, and a concussion."
Link told the police that six individuals were with defendant when the assault occurred.
During his plea colloquy, defendant admitted that he "got into an altercation with" Link and "caused [him] significant . . . bodily injury[.]" When a probation officer later interviewed defendant in connection with his PTI application, defendant stated that after Link entered the bar, "people in the bar instigated a fight." Defendant asserted that he and Link "got into a fight outside of the bar over [Link] stabbing [him] a few years ago." Defendant also claimed that Link told him that he was pressing charges because he had gone to jail for stabbing defendant and wanted to see defendant "go to jail for fighting him."
After defendant pled guilty, he applied for PTI. The probation officer interviewed defendant and prepared a written report recommending that defendant be admitted into PTI. In addition to summarizing the nature of the offense and the facts of the case, the officer conducted an individual assessment of defendant. At the time of his PTI application, defendant was twenty-five years old and had lived his entire life at the same address. Until his incarceration, defendant had been employed for two years as a designer for a local printing company. In recommending defendant's admission into PTI, the officer stated that defendant "seemed very apologetic for his actions."
The record does not reveal, and on appeal the parties do not address, why defendant pled guilty prior to applying for PTI. Enrollment of a defendant in PTI is not to be conditioned on an admission of guilt by the defendant. State v. Moraes-Pena, 386 N.J. Super. 569, 578-79 (App. Div.), certif. denied, 188 N.J. 492 (2006). Moreover, as our Supreme Court recently emphasized, "[n]one of the laudatory purposes of pretrial intervention are fostered by" the grant of PTI after conviction over the prosecutor's objection. State v. Bell, 217 N.J. 336, 348 (2014). "[S]uch concerns are also raised when a trial court grants a PTI appeal after a valid guilty plea." State v. Waters, 439 N.J. Super. 215, 224-225 (App. Div. 2015). However, in the absence of a complete record on this issue and in light of our disposition of this matter, we do not address these concerns further in this opinion.
According to the judgment of conviction, defendant was incarcerated from November 20, 2013, shortly after his indictment, until February 21, 2014, a total of ninety-four days.
About a week later, the same probation officer prepared a presentence report, which included more information about defendant's background and amenability for PTI. In this report, the officer noted that defendant had lived with his grandmother for twenty-five years. Defendant was a high school graduate and had attended the county community college in 2007. Defendant told the officer that he had been accepted into New Jersey City University prior to his arrest, but he did not "get a chance to start because he was incarcerated." Defendant is not married, but has six children. Based on the interview, the officer did not recommend that defendant undergo a psychological or substance abuse evaluation.
Defendant had a limited prior "court history." In 2006, defendant had an adjudication for delinquency and, in 2008, a dismissed adult disorderly persons assault charge, N.J.S.A. 2C:12-1(a).
Based upon the probation officer's reports, the PTI Director recommended that defendant be admitted into PTI. On March 13, 2014, however, the prosecutor issued a one-page letter denying defendant's application. In the letter, the prosecutor stated:
All of the facts in this defendant's case have been reviewed. The State objects to the defendant's admission into the PTI program for the following reasons.
1. The nature of the offense. [N.J.S.A. 2C:43-12(e)(1)] - [t]he defendant, in retaliation for having been assaulted by the victim in 2009 (for which the victim served three years in prison), violently attacked the victim.Notably, the letter did not address any of defendant's personal history or background, or cite any factors which might weigh in favor of PTI.
2. The facts of the case. [N.J.S.A. 2C:43-12(e)(2)] - the defendant gathered a group of friends to viciously attack the victim, causing him to seek hospital treatment.
3. The victim has not expressed a desire to forego prosecution. [N.J.S.A. 2C:43-12(e)(4)].
4. The needs of the victim and society in regularly prosecuting this type of assault outweighs supervision. [N.J.S.A. 2C:43-12(e)(7)].
5. The crime was both assaultive and violent, causing significant bodily injury to the victim. [N.J.S.A. 2C:43-12(e)(10)].
6. The defendant, having gathered a group to [attack] the victim, makes this a case better served through the traditional criminal justice system procedures. [N.J.S.A. 2C:43-12(e)(15)].
Defendant appealed the denial of his PTI application to the trial judge, who considered the matter on May 23, 2014, the date of sentencing. In a written decision, the judge denied defendant's request for admission into PTI. In rejecting defendant's argument that the prosecutor failed to consider any factors other than the nature of the offense, the judge stated that the prosecutor was not required to provide a "detailed report" of everything that was considered in rendering the decision. The judge also ruled that the prosecutor was entitled to "a presumption" that all relevant factors were considered, even if they were not specifically mentioned in the denial letter. The judge noted that "[w]hile [d]efendant may have had a minimal criminal record, and may have had plans to go to college, this crime carries dual presumptions against admission, both for being a violent offense, and for [originally] being a second[-]degree offense."
Defendant also complained that the prosecutor found that "[t]he victim has not expressed a desire to forego prosecution[,]" even though Link was now a fugitive after being charged in other matters and, therefore, was never contacted by the prosecutor to determine if he objected to defendant's admission into PTI. However, the judge dismissed this contention as "one of semantics [because] the victim did, in fact, not wish to forgo prosecution. This is clear from the record because there is nothing indicating that he called the [p]rosecutor's office to inform them of such a request."
After denying defendant's appeal of the rejection of his PTI application, the judge sentenced defendant to two years of probation, together with mandatory fines and penalties. This appeal followed.
II.
We first address our standard of review. "Issues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (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; see also K.S., supra, 220 N.J. at 199 (holding that a prosecutor may not consider prior dismissed charges for any purpose in connection with a PTI application where the facts related to the arrest are in dispute or have not been determined after a hearing); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
While we exercise de novo review over the propriety of considering a certain PTI factor, we afford prosecutors "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. This discretion arises out of the prosecutor's charging authority. Id. at 200. "Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must 'clearly and convincingly' show that the decision was a 'patent and gross abuse of . . . discretion.'" Ibid. (alteration in original) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
We extend "enhanced" deference to the prosecutor's decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). The court's "severely limited" scope of review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Although the prosecutor's discretion is not unlimited, we will rarely overturn the rejection of a PTI applicant. State v. Brooks, 175 N.J. 215, 225 (2002), overruled in part by, K.S., supra, 220 N.J. at 199.
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" State v. Roseman, 221 N.J. 611, 621 (2015) (alteration in original) (quoting State v. Watkins, 193 N.J. 507, 520 (1996)). In rendering his or her decision, the prosecutor must "make an individualized assessment of the defendant" and consider whether the defendant is amenable to rehabilitation. Id. at 621-22 (citing Watkins, supra, 193 N.J. at 520).
A prosecutor must set forth his or her reasons for rejecting a PTI candidate. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A prosecutor "may not simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at 249. Among other purposes, a detailed, defendant-specific statement of reasons enables a defendant to respond, promotes confidence in the prosecutor's decision-making, and facilitates judicial review. Ibid. The prosecutor may not weigh inappropriate factors or ignore appropriate factors. K.S., supra, 220 N.J. at 200.
To meet the "gross and patent abuse of discretion" standard to justify supplanting the prosecutor's decision, a defendant must satisfy one of three factors and must also show the prosecutor's decision undermines the purposes of PTI:
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 of 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.
[Roseman, supra, 221 N.J. at 625 (alteration in original) (quoting State v. Bender, 80 N.J. 84, 93 (1979).]
However, when a defendant has not met this high standard, but nonetheless has demonstrated an abuse of discretion, a remand is appropriate.
When a reviewing court determines that the "prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse" of discretion, the reviewing court may remand to the prosecutor for further consideration. Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors.As the Court explained, this middle-ground preserves the exercise of the prosecutor's discretion, while assuring that the PTI standards are properly employed. Ibid.
[K.S., supra, 220 N.J. at 200 (citation omitted) (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)).]
III.
Applying these principles, we conclude that the trial judge erred in sustaining the prosecutor's decision because the prosecutor failed to consider relevant factors. Specifically, the prosecutor failed to consider: (1) defendant's amenability to rehabilitation, as evidenced by the probation officer's recommendation, defendant's apologetic attitude, and the judge's own determination to ultimately sentence defendant to probation, N.J.S.A. 2C:43-12(e)(6); (2) the fact that the offense was not "part of a continuing pattern of anti-social behavior[,]" N.J.S.A. 2C:43-12(e)(8); and (3) defendant's very minor and dated criminal record, N.J.S.A. 2C:43-12(e)(9). The prosecutor also failed to consider defendant's employment history, his planned enrollment in college, and his need to support six children.
Instead, the State focused entirely upon the nature of the offense, admittedly an important factor, because when a crime is "deliberately committed with violence[,]" a "defendant's application [for PTI] should generally be rejected" unless the defendant can show "'compelling reasons' to justify" admission. K.S., supra, 220 N.J. at 198 (quoting Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) on R. 3:28 at 1169 (2015)). However, "prosecutors in making a [PTI] determination must make an individualized assessment of the defendant, taking into account all relevant factors." Id. at 202 (emphasis added). That did not occur here.
In this case, we are persuaded that the prosecutor failed to properly consider relevant factors. However, we shall not substitute our judgment for the prosecutor in determining whether to admit defendant into PTI. Consequently, although we reverse the trial court's order denying defendant's admission into PTI, we remand to the prosecutor for reconsideration of defendant's application.
We note that the record is not clear whether the prosecutor contacted Link to determine whether he objected to defendant's PTI application. Link was a fugitive at the time the application was considered, and it appears that in considering Link's "desire . . . to forego prosecution" of defendant under N.J.S.A. 2C:43-12(e)(4), the prosecutor relied solely upon Link's initial decision to report the incident to the police. Therefore, in considering this factor on remand, the prosecutor should specify the factual basis for any finding concerning Link's position on defendant's application. --------
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION