Opinion
DOCKET NO. A-1220-14T2
02-07-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEREMY DELGADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Ostrer and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 13-08-0605. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Frances Tapia Mateo, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jeremy Delgado appeals from the trial court's order denying his motion to compel his enrollment in the Pretrial Intervention Program (PTI) over the prosecutor's objection. He principally contends the prosecutor and the court improperly weighed defendant's prior arrests that did not lead to convictions. We agree. We reverse the trial court's order and remand for further consideration.
I.
Defendant sought admission into PTI after pleading guilty to fourth-degree criminal trespass of an automobile as charged in an August 2013 accusation. N.J.S.A. 2C:18-3. This was his second application. Before his plea, he was denied admission because of pending matters in two municipal courts. As part of the August 29, 2013, plea agreement, the State agreed to reconsider defendant's PTI application, which he submitted upon dismissal of those two matters. The State made no promises regarding admission.
The plea to criminal trespass resolved complaints charging defendant with third-degree burglary, N.J.S.A. 2C:18-2, and theft by unlawful taking, N.J.S.A. 2C:20-3, arising out of defendant's alleged entry into an automobile, which was parked in a residential garage. Also, pursuant to the plea agreement, the State sought dismissal of an unrelated March 2013 indictment that charged defendant with third-degree conspiracy to burglarize a different automobile, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2, and fourth-degree theft by receiving stolen property, N.J.S.A. 2C:20-7. The plea agreement called for a term of non-custodial probation if defendant were again denied admission to PTI. Although a presentence report would be prepared, the court delayed sentencing to allow defendant to reapply for PTI.
The plea agreement did not expressly call for the dismissal of the two complaints charging these offenses.
Although the plea form did not specify the agreed sentence, the assistant prosecutor orally recited it at the plea hearing. --------
Despite the criminal division manager's recommendation for defendant's entry into PTI, the prosecutor denied defendant's application by letter dated January 9, 2014. The assistant prosecutor found that four factors disfavored defendant's acceptance into PTI: factor one, "nature of the offense"; factor three, "motivation and age of the defendant"; factor nine, "applicant's record of criminal and penal violations"; and factor eight, "extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior." See N.J.S.A. 2C:43-12(e)(1), (3), (8), and (9).
In support, the assistant prosecutor made several observations. Regarding factor one, defendant entered the victim's car at 4:00 a.m., opened her garage door and, "[w]hile he did not enter the premises, the act alarmed the victim enough to cause her to look out her window, thus enabling her to identify the defendant[.]" Regarding factors three and nine, defendant, who was twenty-three, had been arrested seven times, convicted twice in municipal court, and owed $9,536.42 in child support. This belied the defendant's character witnesses' claims that he was a devoted father. The prosecutor also depreciated defendant's claimed interest in joining the National Guard.
As for factor eight, the assistant prosecutor referred to defendant's record, again placing weight on arrests that did not lead to conviction. She stated:
The defendant has been arrested approximately seven times since 2010 on a variety of charges. He received a fine for consumption of alcohol in 2011 and another for illegal possession of prescription legend drugs in 2013. The defendant has pled guilty to criminal trespass in the current case, and will have a second indictable matter dismissed as part of that plea. The second case involves similar circumstances of burglarizing a car. All of the above shows a continuing pattern of anti-social behavior more conducive to probationary supervision than PTI.
Defendant appealed the denial to the Law Division. His attorney contended the prosecutor mischaracterized, and placed undue weight on defendant's prior record. Counsel argued the prosecutor also failed to consider other relevant factors that supported his application, including his age, motivation to rehabilitate, his commitment to remaining gainfully employed and supporting his son, and the lack of a history of violent behavior. Defense counsel noted that defendant served 118 days in jail in connection with the pending matter.
In a written opinion denying defendant's appeal, the Law Division held that defendant failed to demonstrate that the prosecutor acted with a patent and gross abuse of discretion. Addressing defendant's criminal record, the judge stated:
The Defense asserts that Defendant has not been arrested seven times and that the State erroneously counted each instance in Defendant's court history as an arrest. Regardless of whether Defendant was in fact arrested, since 2010 Defendant has six contacts with the criminal justice system, irrespective of the two cases presently before the court. Defendant has two local ordinance violations and one disorderly person's conviction. It is clear that Defendant's criminal conduct has thus escalated from an ordinance violation to now his first indictable conviction. Additionally, Defendant's six prior contacts with the criminal justice system support a pattern of anti-social behavior.In accord with the plea agreement, in April 2014, the court sentenced defendant to one year of probation. This appeal followed.
II.
We afford prosecutors "broad discretion to determine if a defendant should be diverted." State v. K.S., 220 N.J. 190, 199 (2015). Our scope of review is "severely limited[,]" and addresses "only the most egregious examples of injustice and unfairness." State v. Negran, 178 N.J. 73, 82 (2003) (internal quotation marks and citation omitted). "[T]o 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." K.S., supra, 220 N.J. at 200 (internal quotation marks and citation omitted).
However, "[i]ssues 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. of Manalapan, 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.").
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 and defendant-specific statement of reasons enables a defendant to respond, promotes confidence in the prosecutor's decision making, and facilitates judicial review. Ibid. On the other hand, a reviewing court shall "presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary." State v. Wallace, 146 N.J. 576, 584 (1996).
The prosecutor may not weigh inappropriate factors, or ignore appropriate factors. K.S., supra, 220 N.J. at 200. A PTI rejection "must reflect only a proper consideration of the identified information . . . ." Id. at 198 (internal quotation marks and citation omitted).
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 purpose 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 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.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
However, when a defendant has not met this high standard, but nonetheless has demonstrated an abuse of discretion — for example, by considering inappropriate factors — 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 opportunity for 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 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)).]
We are persuaded that the court erred in sustaining the prosecutor's decision because the prosecutor considered an inappropriate factor, defendant's record of arrests that did not lead to convictions. The Court in K.S. held that a prosecutor cannot consider prior dismissed charges unless the underlying facts are undisputed, or have been determined after a hearing. 220 N.J. at 199.
In this case, the prosecutor considered seven prior arrests, most of which did not lead to convictions. The record reflects that in 2010 and 2011, defendant was convicted and fined for creating a public nuisance and consuming an alcoholic beverage as a minor, both ordinance violations, and marijuana possession, a disorderly persons offense. Other charges in 2010, 2011, and 2012 that he evaded or attempted to evade payment, failed to present proof of payment, possessed a prescription legend drug and drug paraphernalia, and committed theft and harassment, were all dismissed.
Yet, the prosecutor considered these arrests, and mistakenly concluded that defendant was convicted of possessing a prescription legend drug. In so doing, the prosecutor significantly exaggerated "the extent to which . . . [defendant's] crime constitute[d] part of a continuing pattern of anti-social behavior" (factor eight), and defendant's "record of criminal and penal violations" (factor nine). N.J.S.A. 2C:43-12(e).
We appreciate that neither the prosecutor nor the trial court had the benefit of the Court's decision in K.S. The K.S. Court disapproved the Court's prior declaration in State v. Brooks, 175 N.J. 215, 229 (2002), that a prosecutor could consider an arrest that resulted in dismissal or diversion, but only for the limited purpose of considering whether the arrest or dismissal should have deterred a defendant. K.S., supra, 220 N.J. at 199. However, the prosecutor here, contrary to Brooks, apparently considered the prior arrests as reflective of guilt of those offenses. Furthermore, notwithstanding the clear guidance of K.S., the prosecutor on appeal persists in asserting that defendant's increasing "contacts" with the criminal justice system — without regard to whether he was found guilty — reflected a "continuing pattern of anti-social behavior."
Defendant's contention that the prosecutor engaged in a gross and patent abuse of discretion warranting an order compelling his admission into PTI lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also discern no error in the prosecutor's failure to expressly address defendant's amenability to rehabilitation. We presume it was considered. See Wallace, supra, 146 N.J. at 584. Nor do we question the prosecutor's reference to defendant's child support arrears, particularly in the absence of any competent evidence of defendant's payment history.
We shall not substitute our judgment for the prosecutor in determining whether to admit defendant into PTI. Nor do we intend to preclude the prosecutor from considering defendant's prior record, as properly limited in accord with K.S. However, we are constrained to remand for reconsideration so that the prosecutor may properly weigh defendant's prior record.
To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
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