Opinion
DOCKET NO. A-1341-14T4
08-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HEATHER GEIBEL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 14-01-0022. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Heather Geibel's motion to be admitted into pre-trial intervention (PTI) was denied based on her prior misdemeanor conviction in Pennsylvania for corruption of a minor, 18 Pa. C.S. § 6301(a)(1)(i). Because the prosecutor did not consider all relevant factors when denying her entry into PTI, we reverse and remand for reconsideration of defendant's PTI application by the prosecutor.
We discern the following procedural and factual history from the record. On January 15, 2014, defendant was indicted and charged with third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). She was also issued a summons for possession of a hypodermic needle, N.J.S.A. 2C:36-6, and possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2, both of which are disorderly persons offenses.
Defendant's application for PTI was reviewed by the PTI director, who recommended admission into the program. Specifically, the PTI director noted "the instant offense was not assaultive or violent in nature, the defendant does not have a history of using physical violence towards others, and the defendant does not present a substantial danger to others." Additionally, the director identified defendant's "one prior misdemeanor charge out of Pennsylvania . . . [which] is not a bar to PTI admission." Defendant's involvement in outpatient treatment for heroin abuse was also considered.
On March 30, 2015, defendant moved to supplement the appellate record with records of her Pennsylvania conviction pursuant to Rule 2:5-5. We hereby grant defendant's motion.
Nonetheless, the prosecutor objected to defendant's admission into PTI stating that defendant's prior misdemeanor from Pennsylvania is
[a] first degree misdemeanor . . . punishable by a fine or imprisonment not exceeding five years. Pursuant to N.J.S.A. 2C:44-4, a conviction in another jurisdiction shall constitute a prior conviction of a crime if a sentence of imprisonment in excess of six months was authorized under the law of the other jurisdiction.In denying defendant entry into PTI, the prosecutor relied on Guideline 3(e) to Rule 3:28 and N.J.S.A. 2C:43-12(e)(8), and reasoned "a prior criminal record may be indicative of a behavioral pattern not conducive to short term rehabilitation."
On April 19, 2006, defendant pled guilty to Corruption of Minors, 18 Pa. C.S. § 6301(a)(1)(i). The maximum term of imprisonment for that crime is five years. 30 Pa. C.S. § 923(a)(7). Specifically, defendant "dr[o]ve while two [fifteen] year olds threw and shot paintballs at houses and cars from the moving vehicle." She was sentenced to one year of probation.
The trial judge subsequently denied defendant's motion to compel her entry into PTI. At the hearing, defense counsel incorrectly stated defendant's Pennsylvania misdemeanor involved a minor shooting a BB gun when it was in fact a paintball gun.
Under New Jersey and Pennsylvania law, there is a distinction between BB guns, which are viewed as firearms, and paintball guns, which are not. N.J.S.A. 2C:39-1(f); 18 Pa. C.S. § 6304(g). See also State v. Mieles, 199 N.J. Super. 29, 37-40 (App. Div.), certif. denied, 101 N.J. 265 (1985) (holding a BB gun could be used in the commission of an armed robbery with a deadly weapon); Cf. State ex rel. G.C., 359 N.J. Super. 399, 406 (App. Div. 2003), rev'd on other grounds, 179 N.J. 475 (2004) (holding paintball guns are not firearms under N.J.S.A. 2C:39-1(f)).
The judge found defendant's misdemeanor from Pennsylvania was properly considered a conviction pursuant to N.J.S.A. 2C:44-4. Citing State v. Collins, 180 N.J. Super. 190 (App. Div. 1981), aff'd, 90 N.J. 449 (1982), the judge stated "a denial of a defendant's PTI application based on a prior conviction is entitled to great weight and in most cases is unassailable." The judge therefore concluded "the Prosecutor's decision was not arbitrary, irrational or otherwise inappropriate."
Defendant thereafter pled guilty to the indictment and summons. On September 5, 2014, defendant was sentenced to two years of probation with a suspended term of 180 days in county jail. Defendant was further ordered to obtain and complete drug evaluation and treatment, along with certain fines and penalties. Defendant appeals from her conviction, raising the following claim:
Neither of the convictions for the disorderly person offenses are subject to this appeal. --------
BECAUSE THE PROSECUTOR DENIED GEIBEL ADMISSION INTO PTI LARGELY BECAUSE SHE FAILED TO PROVIDE ANY DOCUMENTATION SUPPORTING HER CLAIM THAT HER PRIOR "MISDEMEANOR" IN PENNSYLVANIA WAS NOT A SERIOUS OFFENSE, THE DENIAL OF PTI SHOULD BE REMANDED FOR RECONSIDERATION NOW THAT SUCH DOCUMENTATION HAS BEEN PROVIDED.
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.'" Ibid. (quoting Nwobu, supra, 139 N.J. at 246).
Generally, prosecutors have "broad discretion to determine if a defendant should be diverted." State v. K.S., 220 N.J. 190, 199 (2015). 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 (omission 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).
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). See also State v. Bell, 217 N.J. 336, 348 (2014) (holding the purpose of PTI is to provide "an alternative to the full criminal justice mechanism of a trial"). However, "PTI may be available to a repeat offender." Collins, supra, 180 N.J. Super. at 196.
While the pretrial intervention program is not limited to 'first offenders,' defendants who . . . irrespective of the degree of crime have completed a term of probation . . . within five years prior to the date of application for diversion shall ordinarily not be considered for enrollment in PTI except on joint application by the defendant and the prosecutor.
[Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(e) at 1192 (2016).]
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. Dalglish, 86 N.J. 503, 509 (1981)). Remand is proper if "the prosecutor considers inappropriate factors." Ibid.
A remand might serve a useful purpose, for example, where it has been clearly and convincingly shown by a defendant that the prosecutor failed to consider all relevant factors. If such an omission resulted in a decision that although not clearly subversive to the underlying goals of PTI, might not otherwise have been reached, a reviewing court could refer the case to the prosecutor for reconsideration.
[Wallace, supra, 146 N.J. at 583.]
In 2006, defendant was convicted of a misdemeanor corruption of a minor charge in Pennsylvania resulting in a one year probationary sentence. The prosecutor concedes in his brief "[t]he relevant factor that was taken into account while considering defendant's PTI application was the fact that she was convicted of [the Pennsylvania misdemeanor], and not the circumstances of that crime." We conclude such an approach is inappropriate given the wide scope of the Pennsylvania corruption of a minor statute. See Comm. v. Aikens, ___ A.3d ___, (Pa. Super. 2016) (where corruption of minor charge was related to conduct amounting to first-degree felony unlawful contact with a minor); Comm v. Hanna, 124 A.3d 757 (Pa. Super. 2015) (where corruption of minor charge was related to theft and re-sale of a handgun).
Here, the prosecutor did not consider all relevant factors. Defendant's 2006 misdemeanor corruption of a minor conviction was a significant factor in her denial from entry into PTI. However, the prosecutor did not consider the facts underlying that conviction. Defendant did not engage in the egregious type of conduct which occurred in Aikens. Instead, defendant drove a car with two fifteen-year-old passengers who shot and threw paintballs out of the window towards cars and homes. Because the prosecutor did not consider all relevant factors when evaluating defendant's PTI application, we reverse and remand for reconsideration by the prosecutor.
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