Opinion
DOCKET NO. A-3894-14T3
01-15-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. C.S.C., Defendant-Respondent.
Linda M. Claude-Oben, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Claude-Oben, Assistant Prosecutor, on the brief). Lois A. DeJulio argued the cause for respondent (Adam B. Reisman, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-08-1432. Linda M. Claude-Oben, Assistant Prosecutor, argued the cause for appellant (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Claude-Oben, Assistant Prosecutor, on the brief). Lois A. DeJulio argued the cause for respondent (Adam B. Reisman, on the brief). PER CURIAM
The Hudson County Prosecutor appeals from an order admitting defendant, C.S.C., into pretrial intervention (PTI). The Hudson County Assistant Criminal Division Manager approved defendant's application for enrollment into PTI. Defendant was thereafter indicted and charged with fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and the Hudson County Prosecutor's Office denied defendant admission into PTI. On December 22, 2014, the trial judge denied defendant's appeal of the PTI rejection without prejudice.
After reviewing defendant's motion for reconsideration of the court's December 22, 2014 order, the trial judge issued an opinion and order remanding the PTI application to the Hudson County Prosecutor's Office for reconsideration in light of State v. K.S., 220 N.J. 190 (2015). However, the prosecutor again rejected defendant's entry into PTI. Following another PTI appeal, the trial judge issued an opinion and order, dated April 17, 2015, admitting defendant into PTI over the prosecutor's objection. Following our review of the record, we affirm.
The State alleges the following facts. On March 14, 2014, Dinah, a twenty-one-year-old female, went to dinner with defendant, a fifty-seven-year-old family friend that she described as a "second father." While driving Dinah home from dinner, defendant made multiple inappropriate sexual comments to her. After pulling into Dinah's driveway, defendant, who was intoxicated, grabbed her head and forcefully attempted to kiss her on the mouth. Dinah tried to prevent defendant from kissing her and pulled away. Meanwhile, defendant put his hand inside her shirt and cupped her breast while saying, "[l]et me touch, . . . ." Dinah did not consent to this touching.
The name of the victim has been changed to protect her privacy. --------
Following the incident, defendant left a voicemail on her cell phone saying "[p]lease, [Dinah], that was not me. I was drunk. Give me another chance. Please." Dinah also alleged a prior incident of improper touching by defendant when she was approximately sixteen years old. Specifically, Dinah claimed defendant rubbed her thigh. However, no complaint was ever filed at that time. In his trial court brief supporting his PTI appeal, defendant conceded the incident was "an ambiguous grazing" of Dinah's "inner thigh." Notably, in her written statement to the Secaucus Police Department, Dinah indicated the incident was "brush[ed] off" by her and her family as "not deliberate."
Defendant has no prior criminal history. He describes himself as a "fifty[-]seven[-]year[-]old man with the responsibilities of a home and two children." Defendant may face "corrective action" by his employer, the United States Postal Inspection Service, as a result of this matter. However, a letter from the Postal Police Officers Association states "[a]cceptance into . . . [PTI] would certainly serve to greatly mitigate the level of corrective action to be considered (if any)." The Hudson County Assistant Criminal Division Manager recommended defendant be admitted into PTI, and the PTI recommendation form specifically notes defendant admitted he was under the influence of alcohol and "was extremely remorseful." Furthermore, defendant "takes responsibility for his actions and stated that if it were not for an irresponsible decision to [overindulge,]" the incident would not have occurred. Along with the recommendation for admission into PTI, the Assistant Criminal Division Manager suggested defendant participate in alcohol awareness counseling.
Defendant was initially denied enrollment into PTI by the prosecutor for the following reasons:
N[.]J[.]S[.]A.[]2C:43-12(e)(1) and (2) - The [twenty-one[-]year[-]old victim alleges that the defendant is a long-standing family friend who she regarded as a second father. After driving her home from dinner, defendant engaged in unwarranted sexual questioning of the victim, an unwanted kiss on her mouth and then groping her breast. The defendant kept asking the victim to let him touch her breast. Defendant's actions were not sanctioned, condoned or in any way wanted by the victim. In fact, defendant had previously stroked victim's thigh when she was a junior in high school that led to her parents confronting defendant about his inappropriate actions. At that time, defendant apologized to the victim and her parents and assured everyone that it would not happen again. Defendant violated a trust with the victim and her family when he
committed the first offense and then again this year when he re-offended against the same victim.
N[.]J[.]S[.]A[.][]2C:43-12(e)(5) and (8) - The defendant has demonstrated a pattern and history of inappropriate sexual advances toward a friend's daughter. Defendant has been unable to manage this proclivity on his own over the time between the first and second incidents with this victim. Clearly, defendant needs counseling to address his sexual proclivity and he needs to learn to respect boundaries which should be innate but in defendant's case has to be taught. The short confines of PTI are not conducive for this type of behavior modification counseling.
N[.]J[.]S[.]A[.][]2C:43-12(e)(7), (14) and (17) - The victim is adamantly opposed to PTI in this matter. Individuals who repeatedly lack appropriate sexual judgment should be prosecuted to the point where a conviction can be obtained. This is more important for offenders such as this defendant who were counsel[]ed in the past by the victim's parents to cease from sexualizing their daughter. Especially since defendant is a postal police officer he is in a unique position to truly understand consequences for his criminal actions - truly, he of all people should have known better than to have behaved as he did.
[(emphasis added).]
After reconsidering defendant's PTI application in light of K.S., the prosecutor again denied defendant entry into PTI. In a letter dated March 31, 2015, the prosecutor's office "re- affirm[ed] the reasons for the [initial] rejection" and supplemented their decision with the following reasoning:
The State concedes that the defendant has no prior history of arrests or convictions other than the current fourth[-]degree [c]riminal [s]exual [c]ontact indictment. The State maintains, however, that defendant's continued anti-social behavior (factor (8)) towards this victim is a bona fide application of said factor as part of the basis for rejecting his PTI application . . . .
. . . Upon arriving at her residence, the defendant attempted to turn victim's platonic thank you kiss on his check into license to thrust his tongue into [Dinah's] mouth. Victim was able to thwart that effort by clenching her teeth and yelling at him to stop, but she was then confronted with the defendant shoving his hand into her blouse and cupping her breast. . . .
In providing a written statement to the police, the victim also disclosed that when she was a junior in high school (and a minor), the defendant "gra[z]ed" the victim's thigh. . . . [L]aw enforcement was not contacted about the earlier incident, thus no charges were contemplated, let alone filed. Rather the victim's family chose to deal with this privately and chastised the defendant for his inappropriate behavior towards the then teenage victim.
Defendant has clearly demonstrated an obsession of sorts with this victim. He acted in a sexually inappropriate manner with her when she was an underage teenager and then again when she was [twenty-one] years of age . . . .
. . . Additionally, defendant is/was a postal police officer for [sixteen] years
and thus arguably was familiar with Chapter 14 of the Criminal Code and thus knowledgeable of the limitations placed on nonconsensual sexual behavior. Thus as a married man, a father of two daughters and a law enforcement officer, defendant's conduct was especially egregious and unmistakably anti-social.
[(first, third, and fourth emphasis added).]
The prosecutor also stressed that this was not a victimless crime and that Dinah is "adamantly opposed to defendant's admission into the PTI program." Moreover, the prosecutor raised issue with defendant's potential for rehabilitation given that defendant "fails to both acknowledge and address his issues with alcohol" and that he "blamed the incident on alcohol." Furthermore, the prosecutor took issue with the PTI interviewer's failure to address sex offender counseling, a "glaring [issue] in light of the history that defendant has had with this victim."
The trial judge subsequently admitted defendant into PTI over the State's objection, finding a patent and gross abuse of discretion for the following reasons:
Given that K.S., supra, expressly bars consideration of arrests or dismissed charges in the absence of admissions of conduct in evaluating PTI applicants, the holding in K.S. undoubtedly (and logically) extends to prosecutorial consideration of allegations of uncharged conduct that did not result in an arrest in reaching a decision on a PTI application.Therefore, although the prosecutor considered multiple factors, the judge found the "prosecutor's decision was significantly driven by consideration of allegations of past uncharged 'deviant sexual conduct.'" The prosecutor raises the following point on appeal:
RESPONDENT FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE PROSECUTOR'S DENIAL OF HIS PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.
A. The State Considered All Relevant Factors in its Rejection of Respondent's PTI Application.
B. The State's Denial of Respondent's PTI Application Was Not a "Patent and Gross Abuse of Discretion."
Judicial review of a prosecutor's decision to deny a defendant admission into PTI is "severely limited" and "exists to check only the most egregious examples of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)). "[A] prosecutor's decision to reject a PTI applicant 'will rarely be overturned.'" State v. Baynes, 148 N.J. 434, 443 (1997) (quoting State v. Wallace, 146 N.J. 576, 585 (1996)). The level of deference afforded to the prosecutor is "so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Baynes, supra, 148 N.J. at 443 (quoting Nwobu, supra, 139 N.J. at 246).
Generally, prosecutors have "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. To compel a defendant's admission into PTI over the prosecutor's objection, "the defendant must 'clearly and convincingly' show that the decision [to deny him or her admission into PTI] was a 'patent and gross abuse of . . . discretion.'" Id. at 200 (second alteration in original) (quoting Wallace, supra, 146 N.J. at 582). A patent and gross abuse of discretion is a decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." State v. Watkins, 193 N.J. 507, 520 (2008) (quoting Wallace, supra, 146 N.J. at 582-83).
In State v. Bender, the Supreme Court established a two-part test for evaluating whether a patent and gross abuse of discretion occurred. 80 N.J. 84 (1979). First, the defendant must show an "abuse of discretion" by demonstrating the 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." Id. at 93. However, for the "abuse of discretion to rise to the level of 'patent and gross,'" the defendant must also show "the prosecutorial error complained of will clearly subvert the goals underlying [PTI]." Ibid.
The "policy of the State of New Jersey" is that under certain circumstances "supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense." N.J.S.A. 2C:43-12(a). Those circumstances include when PTI would
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or
(3) Provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses, other than defendants who were public officers or employees charged with offenses that involved or touched their office or employment; or
(4) Provide assistance to criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems; or"In sum, the vision of PTI is to fashion, in appropriate circumstances, an alternative to the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 348 (2014).
(5) Provide deterrence of future criminal or disorderly behavior by an applicant in a program of supervisory treatment.
[N.J.S.A. 2C:43-12(a)(1) to (5).]
In the event a "'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." K.S., supra, 220 N.J. at 200 (quoting State v. Daglish, 86 N.J. 503, 509 (1981)). Remand is proper if "the prosecutor considers inappropriate factors[.]" K.S., supra, 220 N.J. at 200.
N.J.S.A. 2C:43-12(e) provides seventeen non-exclusive factors for consideration by the program director and prosecutor when evaluating applications for admission into PTI. Additionally, there are eight guidelines to the rule governing PTI for consideration by the program director and prosecutor. Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guidelines 1 to 8 (2016). However, for prior dismissed charges "to be considered properly by a prosecutor in connection with an application, the reason for consideration must be supported by undisputed facts of record or facts found at a hearing." K.S., supra, 220 N.J. at 199. Without undisputed facts or findings, "prior dismissed charges may not be considered for any purpose." Ibid.
In K.S., the prosecutor rejected the defendant's PTI application for the following reasons:
[T]he victim . . . objected to [the] defendant's admission into the program; the needs and interests of the victim and society; [the] defendant's continuing pattern of anti-social behavior; [the] defendant's criminal record; the assaultive and violent nature of the offense charged; and [the] defendant's propensity towards violence.The prosecutor's reasoning was largely based on the defendant's "history of arrests . . . including a prior [a]ggravated [a]ssault as a juvenile for which he was granted a diversion." Id. at 200 (second and third alterations in original). The State claimed to possess an apology letter from the defendant in which he admitted to the conduct underlying his diverted juvenile aggravated assault charges. Id. at 202.
[Id. at 200-01 (internal citations omitted).]
However, the letter was not in the record and the court was not provided with "any writings, transcripts, or other evidence considered by the PTI director and the prosecutor containing admissions made by [the] defendant in any of the matters, adult or juvenile, for which the charges were dismissed." Ibid. The Supreme Court held "[u]nless an inference of guilt or other conclusions could be drawn from at least one dismissed charge, based on facts, [the] defendant's criminal record includes no indication that he had a history of violence or presented a danger toward others." Ibid. Therefore, the Court reversed and remanded the matter to the prosecutor for further consideration of the defendant's PTI application. Id. at 203.
Here, the trial judge found the prosecutor considered inappropriate or irrelevant factors, amounting to a patent or gross abuse of discretion. Although the prosecutor considered multiple factors, the judge found the "prosecutor's decision was significantly driven by consideration of allegations of past uncharged 'deviant sexual conduct.'" We agree.
The prosecutor's reliance on those allegations was made despite a remand from the trial judge for reconsideration of defendant's PTI application in light of K.S. Specifically, the prosecutor's initial analysis, which she re-affirmed in her subsequent statement rejecting defendant from PTI, explicitly mentioned allegations of defendant's "pattern and history of inappropriate sexual advances" towards Dinah with respect to each factor considered.
Moreover, the prosecutor did not provide or consider any "undisputed facts of record or facts found at a hearing" with respect to those allegations. K.S., supra, 220 N.J. at 199. Notably, in Dinah's written statement to the Secaucus Police, she admits the allegations of past uncharged conduct were considered to be "not deliberate." This reliance on irrelevant or inappropriate factors amounts to an abuse of discretion by the prosecutor. See Bender, supra, 80 N.J. at 93; K.S., supra, 220 N.J. at 199.
Next, we address whether the prosecutor's abuse of discretion rises to the level of "patent and gross." Because defendant has not previously been convicted of any criminal offense, he should be considered for PTI if he falls within one of the criteria enumerated in N.J.S.A. 2C:43-12(a)(1) to (5). We find denying defendant entry into PTI would "clearly subvert the goals underlying [PTI]." Bender, supra, 80 N.J. at 93. Specifically, supervisory treatment "can reasonably be expected to deter future criminal behavior" by defendant, especially because defendant takes responsibility for his conduct and recognizes its connection with his alcohol consumption. N.J.S.A. 2C:43-12(a)(1). Moreover, defendant is currently employed by the United States Postal Inspection Service and is responsible for his home and two children. He faces a significant risk of losing his job if convicted, and the court was provided with a letter from the Postal Police Officers Association stating that defendant's acceptance into PTI would "greatly mitigate the level of corrective action to be considered (if any)." Because of the potential harm faced by defendant in light of the deterrent effect PTI would have, PTI is an appropriate alternative to prosecution. N.J.S.A. 2C:43-12(a)(2). Finally, we agree with the Assistant Criminal Division Manager that defendant's admission into PTI would "deter future criminal or disorderly behavior." N.J.S.A. 2C:43-12(a)(5).
The defendant was an employed fifty-seven-year-old man with no prior charges against him and no record of sexual misconduct. On the night in question he and the victim went out to dinner where defendant admittedly became intoxicated. Allegations of his inappropriate sexual remarks to her followed by an attempt to kiss her on the mouth and then his assaulting her by touching her breast inside her clothing would certainly be criminal. However, it is this type of aberrational conduct, combined with an otherwise unblemished record, that fulfills the criteria and public policies underpinning PTI.
The prosecutor argued in her supplemental rejection letter that defendant was not amenable to rehabilitative services. Specifically, she noted defendant failed to "address his issues with alcohol" and did not take responsibility for the incident because he "blamed the incident on alcohol." We disagree. Defendant accepted responsibility for his actions even before he was charged and should be given an opportunity to avail himself of alcohol awareness counseling while engaging in PTI.
Furthermore, in her appellate brief, the prosecutor argues "the type of rehabilitation offered by PTI is not appropriate in the instant case" because it does not include "any form of sexual rehabilitative counseling." Again, the prosecutor relies on allegations of prior conduct which are not supported by "undisputed facts of record or facts found at a hearing" and for which defendant was not even charged. Cf. K.S., supra, 220 N.J. at 199. Therefore, the prosecutor continues to abuse her discretion by improperly relying on irrelevant factors when denying defendant admission into PTI. This disregard of the Supreme Court's holding in K.S. continued at oral argument in this appeal. We conclude such continued disregard for the principles set forth by the Supreme Court in K.S. to be a relevant factor in our determination that the prosecutor patently and grossly abused her discretion.
Given the aforementioned arguments regarding defendant's amenability to rehabilitation and any potential deterrent effect associated with granting defendant admission into PTI, it is clear that the goals underlying PTI would be subverted if defendant is not permitted entry into the program. Therefore, we agree with the trial judge that the prosecutor's decision was a patent and gross abuse of 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