Opinion
DOCKET NO. A-4068-13T2
05-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARTHA S. GONZALEZ, Defendant-Appellant.
Anthony L. Marchetti, Jr. argued the cause for appellant (Marchetti Law, P.C., attorneys; Mr. Marchetti, on the briefs). Robin Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-10-3026. Anthony L. Marchetti, Jr. argued the cause for appellant (Marchetti Law, P.C., attorneys; Mr. Marchetti, on the briefs). Robin Hamett, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Martha S. Gonzalez appeals from an order that affirmed the decision to deny her admission into the pretrial intervention program (PTI). The thrust of defendant's appeal is that the denial was based on her immigration status, i.e., that she is not in this country legally. While a defendant's status as an illegal alien cannot be the sole basis for rejection from PTI, it may be a relevant factor in that decision. State v. Liviaz, 389 N.J. Super. 401, 408 (App. Div.), certif. denied, 190 N.J. 392 (2007). The State contends that defendant's immigration status was but one of the factors considered. We reverse and direct defendant be admitted into PTI.
Defendant had her four children with her when she was arrested for shoplifting over $500 in merchandise from a Walmart store. She used the children as props for her theft, concealing some of the stolen items in a stroller under her baby and placing other merchandise in purses taken from the store that she gave her children to wear. She was stopped by Walmart's loss prevention officer after she passed through the registers, where she paid for items she had not concealed. She accompanied the loss prevention officer to the office, where she confessed to taking the concealed merchandise. Defendant called her husband, who came to the store and took the children home. All the merchandise was recovered. There is no evidence in the record she resisted, that there was any physical altercation when she was stopped by the loss prevention officer, or that any event at the store exposed her children to physical harm.
All of defendant's children are United States citizens.
Defendant was indicted for third-degree shoplifting, N.J.S.A. 2C:20-11(c)(2), and four counts of fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3, which reflected one count for each child with her at the time of the shoplifting. She applied for admission to PTI and received a letter from Erica K. Wade, a senior probation officer. After recounting the facts of the offense, Wade stated, "This behavior by the defendant was clearly assaultive and violent not in the crime itself but in the possible injurious consequences to the minor children she used to assist her in the crime." Wade set forth the following reasons for defendant's rejection:
Please be advised the application is denied pursuant to Guideline 1(D) which indicates that admission to PTI programs should be limited to those defendants who can be deterred from future criminal behavior by the time periods embodied in [Rule] 3:28. Investigation of this referral indicates that your client would be a poor candidate for short term rehabilitation utilizing the PTI program. This is evident by the fact that Ms. Gonzalez is in this country as an illegal alien and therefore involved in an ongoing illegal activity and would be a poor risk and inappropriate candidate for PTI. Ms. Gonzalez's intake information discloses that she was born in Mexico, is not a US citizen and entered the country illegally. Further INS shows that Mr. [sic] Gonzalez left the USA in 2007 and has no record of her re-entry. As she is in this country illegally, it is my opinion that she cannot be supervised through a diversion program as her presence in the US is a violation of Federal Law. The nature of the present
offense itself and the defendant's illegal status in the US appear to conflict with the goals of the PTI program and indicate that the defendant is not a suitable candidate for PTI. The application is denied.
[N. J.S.A. 2C:43-12(e)(1),(2),(7),(14)] requires consideration of the nature of the offense, needs and interests of the victim and society and whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.
[N. J.S.A. 2C:43-12(e)(17)] further demands consideration of whether or not the harm done to society by abandoning prosecution would outweigh the benefit to society by channeling an offender into a supervisory treatment program.
[N. J.S.A. 2C:43-12(e)(6),(8)] further requires consideration of the likelihood that the crime is related to a situation conducive to change through participation in the program and the extent to which the defendant's crime constitutes part of a pattern of anti-social behavior.
I have considered the materials submitted by the defendant including her age (34) and lack of criminal convictions. Despite these considerations and in view of the serious nature of the present offense, the defendant's ongoing violation of the law as an illegal alien and her lack of availability for supervision, it is my opinion that Ms. Gonzalez is not a suitable candidate for PTI. The application is denied.
[Emphasis added.]
The prosecutor's office did not independently assess defendant's suitability for PTI in a separate letter denying her admission. At the oral argument on defendant's motion to compel her admission into PTI, the court questioned the prosecutor as to what basis there was for her rejection other than her "illegal alien status." The prosecutor replied:
I mean, that's a factor in that she's continuing to commit a crime every single day by being here illegally. However, the second degree employing a juvenile, the child was active in the commission of the crime.
[Emphasis added.]
There was, however, no second-degree charge pending against defendant. Nevertheless, that erroneous factor was relied upon by the trial court in denying defendant's motion:
But I didn't see it as just merely a case of the illegal alien status.
As I said to you, if it was just simply a shoplifting crime it would be one thing, but the fact of the matter is it was a significant shoplifting involving a child. And that, in and of itself, a second degree offense of this nature, is one where the public needs to be aware how severe these types of crimes are. . . .
[H]aving reviewed the file that the State relied upon . . . the nature of offense certainly, not the shoplifting, but the endangering the welfare of a child, second degree, the facts of the case, the amount of items she took, her actions involved in it, the motivation and age of the defendant. Well, she's a young person. But I also have to take a look at the other factors, and that's where the illegal alien status comes in.
[The prosecutor] is right; every time she - - every minute she's in this country theoretically she commits another offense . . . . [W]hen you enter the country illegal[ly], certainly, there's a concern about your ability to conform with the rules of this society and the laws of this society.
[Emphasis added.]
The court went on to review other factors set forth in N.J.S.A. 2C:43-12(e). The erroneous assumption defendant was charged with a second-degree offense and references to her immigration status permeated this discussion. However, the court explicitly rejected the contention that defendant's offense was "assaultive."
The court erroneously stated the police report indicated defendant was "somewhat aggressive with the security officer." There is no suggestion in either Walmart's report or the police report of any aggressive behavior by defendant.
After her motion was denied, defendant entered a guilty plea to one count of third-degree shoplifting pursuant to a plea agreement in which the State agreed to recommend a sentence of non-custodial probation. She was sentenced to a two-year term of probation.
Prosecutors are granted "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). The scope of judicial review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Nwobu, 139 N.J. 236, 246 (1995). We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and it is expected that "a prosecutor's decision to reject a PTI applicant will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (citation and internal quotation marks omitted). To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584); see also Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002); Nwobu, supra, 139 N.J. at 246.
A prosecutor's discretion regarding "a PTI application is not without its limits, however." Negran, supra, 178 N.J. at 82; accord Brooks, supra, 175 N.J. at 225. The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and Rule 3:28, and the accompanying Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, 1166-67 (2015). See Negran, supra, 178 N.J. at 80-81. As part of a determination that is "primarily individualistic in nature," id. at 80, the prosecutor must consider the particular "defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b); see also State v. Mosner, 407 N.J. Super. 40, 55 (App. Div. 2009). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584 (emphasis added). "The statement of reasons may not simply 'parrot' the language of relevant statutes, rules, and guidelines." Nwobu, supra, 139 N.J. at 249 (quoting State v Sutton, 80 N.J. 110, 117 (1979)).
As we have noted, the prosecutor's office did not prepare its own statement of reasons, but relied upon the senior probation officer's letter to advise defendant of the reasons for her rejection. Aside from Wade's conclusion that defendant would be a poor candidate for PTI because of her immigration status, the letter essentially consists of citations to the statutory factors that must be considered without any evaluation of those criteria as they apply to defendant's application. This was not the required analysis, which must be "primarily individualistic in nature," Negran, supra, 178 N.J. at 80, and not merely "'parrot' the language of relevant statutes, rules, and guidelines." Nwobu, supra, 139 N.J. at 249 (quoting Sutton supra, 80 N.J. at 117).
There is no recognition of the principle that defendant's immigration status may be relevant to but not dispositive of her suitability as a PTI candidate. See Liviaz, supra, 389 N.J. Super. at 408. Other than defendant's immigration status, the only other factor Wade evaluated was the nature of the offense, which she described as "clearly assaultive and violent." This characterization was correctly rejected by the trial court. Unfortunately, the trial court did not reject the State's erroneous assertion that defendant was charged with second-degree offenses, an assertion consistent with the inadequacy of the State's review of defendant's application. And, we note, Wade's opinion that defendant's immigration status precluded her supervision in a diversion program is substantially discredited by the fact the State agreed to recommend a term of probation as part of a plea agreement.
The judgment of conviction also reflects the sentencing judge's finding that defendant was "particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1(b)(10).
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Our review of the statement of reasons relied upon by the State for the denial of defendant's PTI application shows that there was no particularized assessment of this defendant beyond her immigration status. Given the clearly wrong description of the offense as assaultive or violent and the State's misrepresentation of the seriousness of the charge against her to the trial court, it is evident that defendant's immigration status was the determinative factor in the denial of her PTI application. Based upon all the circumstances of the offense and the State's review of the PTI application, we conclude that the denial of defendant's application constituted a "'patent and gross abuse of discretion.'" See Caliguiri, supra, 158 N.J. at 37 (quoting Wallace, supra, 146 N.J. at 584). We reverse the order affirming the prosecutor's rejection of defendant's PTI application and direct she be admitted to the PTI program.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION