Opinion
DOCKET NO. A-5598-08T2
04-18-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EZEKIEL DANIELS, Defendant-Appellant.
Joseph E. Krakora, Public Defender attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1754.
Joseph E. Krakora, Public Defender attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ezekiel Daniels appeals from the Law Division order upholding the denial of his admission to the pretrial intervention program (PTI). We reject defendant's arguments and affirm.
In November 2007, defendant was playing loud music from his parked vehicle near a residential apartment complex at 3:00 a.m. According to the police report, there were approximately twenty unknown men and women wearing red and black clothing and waving black flags, while doing "the crip walk" and dancing in the street. East Orange Police Officers, conducting a quality-of-life patrol, arrived in marked police cars, with overhead lights and sirens activated and ordered the crowd to disperse. The crowd disregarded the officers' commands. The officers called for the owner of the vehicle to identify himself; and a male, later identified as defendant, responded in a loud tone, "I am, what." The officers instructed him to lower the music and asked for his driver's license and credentials. Defendant failed to comply and was again instructed to lower his music and have a seat in his vehicle. Defendant refused, stating, "Why, for what?" At that point, he was arrested and charged with disorderly conduct.
During their pat down of defendant, the officers learned that he was an off-duty Essex County Sheriff's Officer carrying a fully loaded handgun that was not departmentally-issued, which he was not authorized to carry. Defendant was charged with unlawful possession of a weapon.
Defendant applied for admission to PTI. The program director recommended defendant for admission based on his "lack of a criminal record" and "cooperative attitude." However, the prosecutor rejected the application stating, among other reasons, that "defendant illegally possessed [ ] a fully loaded handgun in his car, while a group of individuals surrounding him were [sic] engaged in gang-related behavior." The prosecutor also stated, "[t]here was a clear threat of violence present in this case . . . . Moreover, this type of behavior needs to be deterred, as gun violence plagues Essex County neighborhoods." Defendant appealed to the Law Division seeking admission to PTI.
The prosecutor characterized the crowd's conduct of dancing, doing the crip walk and waving black flags, as "gang related activity."
The judge concluded that the prosecutor's rejection of defendant's application was based, in part, on inappropriate factors and remanded defendant's application for reconsideration by the prosecutor's office. After the prosecutor rejected defendant's PTI application a second time, the judge considered defendant's motion to compel admission anew. The prosecutor argued that, notwithstanding the inappropriate factor, the reasons for denying defendant admission into PTI were nonetheless sufficient. Upon considering the record and applying the deferential judicial standard of review applicable to PTI denials, Judge Fullilove upheld the prosecutor's decision to deny defendant's application to the PTI program. Thereafter, pursuant to a plea agreement, defendant pleaded guilty to third-degree unlawful possession of a weapon. The judge sentenced defendant to a one-year probationary term. The requisite fines and monetary penalties were also imposed.
Defendant appeals the order denying his admission into PTI and contends:
POINT I. AFTER BEING ORDERED BY THE TRIAL JUDGE TO RECONSIDER DANIELS' PTI APPLICATION, THE PROSECUTOR STOOD BY HER INITIAL DECISION TO REJECT DANIELS DESPITE THE PROGRAM DIRECTOR'S RECOMMENDATION FOR ADMISSION AND DANIELS' CLEAR SUITABILITY FOR PARTICIPATION IN A SUPERVISORY PROGRAM AS EVIDENCED BY HIS HIGHLY DECORATED MILITARY SERVICE. THE PROSECUTOR'S DECISION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION AND MUST BE REVERSED.
A. THE SIGNIFICANT RELIANCE PLACED ON DANIELS' STATUS AS A SHERIFF'S OFFICER WAS INAPPROPRIATE.
B. THE SERIOUSNESS OF HIS OFFENSE DID NOT OUTWEIGH DANIELS' AMENABILITY TO A REHABILITATIVE PROCESS AS EVIDENCED BY FOUR YEARS OF HIGHLY DECORATED MILITARY SERVICE.
C. THE PROSECUTOR'S ERROR IN REFUSING TO ADMIT DANIELS TO PTI ROSE TO THE LEVEL OF "PATENT AND GROSS" BECAUSE IT CLEARLY SUBVERTED THE GOALS OF PTI.
As established in N.J.S.A. 2C:43-12e and as implemented in our courts under Rule 3:28, PTI is a discretionary program. A defendant's admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995) (citing R. 3:28(b)). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1)-(17).
Because 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." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). That deference to the prosecutor has been described as "'enhanced' or 'extra' in nature." Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 ( 1997)).
The scope of judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993); see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). As the Court noted in Negran, judicial review of PTI denials "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)); see also State v. DeMarco, 107 N.J. 562, 566 (1987). Therefore, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] must clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (internal quotation marks and citations omitted). To find an abuse of discretion there must be a showing that the prosecutor failed to consider all relevant factors, considered irrelevant or inappropriate factors, or exercised a clear error in judgment. State v. Bender, 80 N.J. 84, 93 (1979). Further, to rise to a level of "patent and gross" abuse, it must be shown that the prosecutorial error will clearly subvert the goals underlying PTI. Ibid. Prosecutors are granted enhanced deference in making PTI determinations, which will rarely be overturned by a court. Kraft, supra, 265 N.J. Super. at 111.
Defendant argues that the prosecutor's rejection of defendant's application was a patent and gross abuse of discretion because the prosecutor (1) relied too heavily on defendant's status as a sheriff's officer and the seriousness of the offense, and (2) did not give sufficient weight to defendant's military service and his amenability to rehabilitation.
Citing DeMarco, supra, 107 N.J. at 569, the prosecutor argues that its consideration of defendant's employment as a sheriff's officer was proper as it was one of the factors considered in judging him as a whole person. Defendant argues that his case is distinguishable from DeMarco in that he "did not represent himself as a sheriff's officer when dealing with the public, attempt to use his authority in any way, or display his service weapon. [Nor did he] commit or threaten to commit an act of violence against any member of the public."
In viewing defendant as a whole person, the prosecutor considered that, as a Sheriff's Officer who was in a probationary period of employment, defendant knew he could not legally carry a handgun as he was assigned to an unarmed position within the Sheriff's Department and he had not yet received his firearm certification. The illegal possession of the weapon was considered to be an act of defiance of the law. The prosecutor also considered defendant's failure to cooperate with fellow officers who responded to the scene. They determined that by responding disrespectfully and openly challenging the officers' authority, defendant contributed to creating a dangerous and hazardous situation for the officers and the spectators. Finally, the prosecutor reasoned that defendant's possession of a loaded weapon on his person carried with it the threat of violence.
The prosecutor analyzed defendant's commendable military service and lack of prior criminal record, but deemed these factors insufficient to outweigh the factors of defendant's poor judgment and conduct, particularly in light of his presumed awareness of the risks of gun violence due to his employment and military training.
In the judge's written opinion, he characterized the State's rejection as a close call, but ultimately deferred to the prosecutorial decision which was based on the aggravating factors of defendant's crime, the nature of the offense, the facts of the case, and the public's need for prosecution. N.J.S.A. 2C:43-12e.
Defendant does not assert that the prosecutor failed to consider certain aspects of defendant's life or circumstances. Rather, defendant disputes the quantum of weight assigned by the prosecution in the factors being considered. "[T]he Legislature has highlighted several factors for the prosecutor or program director to consider, . . . clearly intend[ing] to leave the weighing process to the prosecutor or program director." State v. Wallace, 146 N.J. 576, 585-86 (1996). "Notably, nowhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned these several criteria." Id. at 585.
In Wallace, the Court found that the Guidelines for Operation of Pretrial Intervention following Rule 3:28 are similarly structured concluding that "[a]lthough the Guidelines do represent a somewhat greater attempt to channel prosecutorial discretion than the statute, in the end it remains the responsibility of the prosecutor to weigh the various factors and to reach a determination." Id. at 586. "[A] prosecutor must use his or her independent judgment to fully and fairly evaluate the weight to be given to each of the relevant factors." State v. Hoffman, 399 N.J. Super. 207, 214 (App. Div. 2008). However, it "remains the obligation of the judiciary to check those instances where the prosecutor has so inappropriately weighted the various considerations so as to constitute a 'clear error in judgment.'" Wallace, supra, 146 N.J. at 586.
The record indicates that the prosecutor considered the statutory factors as well as defendant's particular circumstances, and conducted an analysis consistent with the discretion the law affords. While defendant and the judge had reason to question the initial consideration of the inappropriate factors, on the second review the prosecutor carefully and fairly weighed the factors in making the decision to deny defendant's application to PTI.
Affirmed.