Opinion
DOCKET NO. A-3695-12T1
08-05-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.A.G., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-02-0425. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a judgment of conviction for third-degree aggravated assault upon a law enforcement officer and argues that the Law Division erred in denying his motion for admission into the pre-trial intervention (PTI) program notwithstanding the objection of the prosecutor. He argues that the offense arose from a "toxic combination of alcohol and the crushing loss" of his job, and that in view of his minor prior record, the State's rejection of his PTI application constituted a patent and gross abuse of discretion.
We have considered defendant's arguments in light of the record and applicable law, and we affirm. We discern the following facts from the record.
On September 28, 2011, defendant was riding in a cab in Jersey City and became embroiled in a dispute with the driver. Defendant was under the influence of alcohol at the time, and the dispute got to the point where the driver called for police assistance. When police officers arrived on the scene, they observed defendant's slurred speech and difficulty standing, and requested an ambulance for defendant.
Defendant became belligerent while waiting for the ambulance, and began a physical struggle with the officers after the ambulance arrived. Defendant resisted efforts by the police to handcuff him, and spat in the face of one of the officers. Defendant was later subjected to a serological test which revealed a positive result for potential viral disease.
In February 2012, a Hudson County Grand Jury returned an indictment charging defendant with fourth-degree throwing bodily fluid at a law enforcement officer, N.J.S.A. 2C:12-13 (count one); third-degree assault upon a police officer while in uniform in the performance of his duties, N.J.S.A. 2C:12-1(b)(5)(a) (count two); third-degree resisting arrest by the use of physical force, N.J.S.A. 2C:29-2(a) (count three); third-degree assault upon a police office while in uniform in the performance of his duties, N.J.S.A. 2C:12-1(b)(5)(a) (count four); and fourth-degree obstructing the administration of the law, N.J.S.A. 2C:29-1 (count five).
On June 14, 2012, defendant entered a retraxit plea of guilty to count two of the indictment pursuant to a plea bargain in which the State agreed to recommend non-custodial probation and to dismiss the other charges. At the time defendant entered the plea, the court granted defendant's oral motion for permission to apply for PTI out of time. The State did not consent to that motion.
Defendant applied for entry into the PTI program and his application was approved by the criminal division manager in October 2012. However, on November 27, 2012, State rejected defendant's application for diversion and explained in correspondence that:
1. The defendant's actions toward police were assaultive and violent. Spitting at and biting police when the defendant knew he was [ill] makes this a particularly egregious crime.Defendant thereafter moved for admission into the program and supported the motion with a brief certification in which he claimed he had not known of his illness at the time of the incident, and that while he "fully accept[s]" responsibility for his actions, he was "in an alcohol induced intoxicated state" at the time.
2. The complainant officer/victims do not wish to forego prosecution.
3. The value of supervision is outweighed by the public need for prosecution of this type of case.
The Law Division denied the motion and sentenced defendant to one year of probation. This appeal followed.
Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admissions into PTI are governed both by statute, N.J.S.A. 2C:43-12(a)(1), and court rule, R. 3:28. See Guidelines for Operation of Pre-Trial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2014). The scope of judicial review is "severely limited[,]" and interference by reviewing courts is reserved for those cases where needed "to check [] the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord State v. Nwobu, 139 N.J. 236, 246 (1995).
We review PTI decisions with enhanced deference. State v. Brooks, 175 N.J. 215, 225 (2002); State v. Baynes, 148 N.J. 434, 443 (1997). A defendant seeking to overturn rejection from PTI must demonstrate by clear and convincing evidence that the decision rejecting his or her application was "a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008).
The Supreme Court has noted that if a rejected defendant can prove the decision "(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[,]" then an abuse of discretion would "be manifest." State v. Bender, 80 N.J. 84, 93 (1979). In order to raise that presumption to the level of a "patent and gross" abuse of discretion, however, a defendant must also establish that his or her rejection from PTI "will clearly subvert the goals" of the PTI program. Ibid. It may be appropriate to reverse a decision rejecting a defendant from PTI where it "'is contrary to the predominant views of others responsible for the administration of criminal justice[,]'" Nwobu, supra, 139 N.J. at 253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)), such that it is "'clearly unreasonable so as to shock the judicial conscience'" or that it "'could not have reasonably been made upon a weighing of the relevant factors.'" Id. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).
Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).
Here, the record fully supports the prosecutor's denial of defendant's application based on a finding defendant had failed to rebut the presumption of ineligibility due to the serious nature of the offense. Defendant, no doubt cognizant of the danger involved, elected to assault a police officer while in the process of actively and physically resisting arrest. Consequently, his action resulted in the threat of serious personal injuries to himself and the officers on the scene. "[I]t is . . . well settled that a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged." State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993).
State v. Moraes-Pena, 386 N.J. Super. 569 (App. Div. 2006) involved a defendant charged with third-degree assault by auto while intoxicated. Following an initial remand, the trial judge reversed the denial of defendant's application and admitted defendant into PTI over the State's objection. We reversed, finding "that the prosecutor's rejection of PTI did not constitute a 'patent and gross abuse of discretion.'" Id. at 580 (citation omitted). We noted that, "as the alleged aggravated assault" involves intoxication, the "public policy" advanced by the prosecutor must be recognized. Ibid. We find no basis to depart from that result here.
We are satisfied the motion judge properly addressed the relevant factors and considered the appropriate standard in reviewing defendant's PTI application. We are also satisfied defendant's arguments do not meet the high standard necessary to reverse a prosecutor's rejection of his PTI application.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION