Opinion
DOCKET NO. A-4141-14T4
10-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROHAN J. GORDON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia H. Blum, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary Rebecca Juliano, Assistant Prosecutor, of counsel; Ms. Juliano and Randolph Mershon, III, Legal Assistant, and 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-01-0208. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia H. Blum, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Mary Rebecca Juliano, Assistant Prosecutor, of counsel; Ms. Juliano and Randolph Mershon, III, Legal Assistant, and on the brief). PER CURIAM
Defendant Rohan Gordon appeals from a March 18, 2015 order denying his motion to compel his entry into the pre-trial intervention program (PTI) over the prosecutor's objection. We affirm because we are convinced the trial court correctly determined that the prosecutor's decision denying admission to PTI was not a patent and gross abuse of discretion.
Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Those charges arose out of an incident where defendant and three co-defendants assaulted a co-worker and took his cell phone. The defendants claimed that they were looking for the boyfriend of one of the co-defendants who they suspected had been drinking to excess. Believing that the victim knew where the boyfriend was, they went to the victim's house. When the victim would not give defendants the information they were seeking, they demanded the victim's cell phone, and a physical assault ensued. The victim was punched several times in his face and his jaw was broken. The cell phone was then taken.
Defendant negotiated a plea agreement under which he pled guilty to an amended count of third-degree theft, N.J.S.A. 2C:20-3. The State agreed to allow defendant to apply to PTI out-of-time, but if defendant was rejected from PTI, the State would recommend non-custodial probation.
Defendant thereafter applied for PTI, and a probation officer recommended defendant for enrollment after conducting an investigation. An assistant prosecutor issued a written memorandum for the prosecutor, however, disagreeing with the probation officer's recommendation and denied defendant's PTI application. The prosecutor cited two reasons for defendant's rejection.
First, the prosecutor reasoned that the facts of the case, which involved an assault, did not justify PTI. N.J.S.A. 2C:43-12(e)(2). The prosecutor also cited Rule 3:28, Guideline 1, noting that the purpose of PTI is to provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses. The prosecutor went on to note that Guideline 3(i) of Rule 3:28 states that a defendant's application should be presumptively denied if (1) the crime was committed deliberately with violence, or (2) the defendant was charged with a first or second-degree offense. The prosecutor noted that both presumptions applied in this case. Second, the prosecutor cited N.J.S.A. 2C:43-12(e)(10) noting that defendant's crime was an assaultive crime.
In making the determination, the prosecutor considered defendant's background and mitigating factors. Defendant was twenty-six years old when the crime occurred, he was a high school graduate, he was married and had a child, and he was employed. Further, the prosecutor pointed out that defendant was a conditional resident of the United States who had been born in Jamaica, but was married to a United States citizen. Finally, the prosecutor weighed defendant's mitigating factors against the facts of the case and the assaultive nature of the case and concluded that defendant was not an appropriate candidate for PTI.
Defendant appealed the denial to the Law Division and the judge heard oral argument, but upheld the prosecutor's denial of PTI admission. The judge reasoned that defendant had failed to overcome the heavy burden to demonstrate that the prosecutor's rejection of the PTI application was a patent and gross abuse of discretion. The judge also noted that defendant and his family could suffer if he was deported, but that consideration did not raise to the level where the court could substitute its judgment for the judgment of the prosecutor. Accordingly, the judge concluded that the decision to reject defendant from PTI was not arbitrary, capricious or unreasonable and was not a patent and gross abuse of discretion.
On this appeal, defendant argues:
THE PROSECUTOR'S REFUSAL TO ALLOW DEFENDANT TO ENROLL IN PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE IT FAILED TO CONSIDER FACTORS THAT SUPPORT[ED] ADMISSION, CONSIDERED AN INAPPROPRIATE FACTOR, AND MISJUDGED THE FACTS OF THE OFFENSE.We are not persuaded by these arguments.
PTI "is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). The goal of PTI is to allow, in appropriate situations, defendants to avoid the potential stigma of a guilty conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 348 (2014).
PTI is governed by statute and court rule. See N.J.S.A. 2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2016). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see also State v. Negran, 178 N.J. 73, 82 (2003) (stating that courts must "allow prosecutors wide latitude").
"Thus, the scope of review is severely limited." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246). Reviewing courts must accord the prosecutor "extreme deference." Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("great deference should be given to the prosecutor's determination not to consent to diversion"). To overturn a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008).
"[I]nterference by reviewing courts is reserved for those cases needed 'to check [] the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82) (internal quotation marks omitted). We apply the same standard of review as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).
Defendant argues that the rejection of his PTI application by the prosecutor constituted a patent and gross abuse of discretion for three reasons. First, defendant contends that the prosecutor "ignor[ed] the fact that [defendant] was amenable to correction and highly likely to respond well to rehabilitation[,]" and that a criminal conviction could result in his deportation. Second, defendant asserts that it was inappropriate for the prosecutor to consider that defendant failed to make the application until after he entered a guilty plea. Third, defendant argues that the prosecutor misjudged the facts of the case. Applying our deferential standard of review, we reject these arguments.
The prosecutor clearly considered the favorable mitigating facts and defendant's background. In that regard, the prosecutor noted that the defendant was married, employed, had a child, and could be subject to deportation. The prosecutor, however, exercised his discretion and determined that those mitigating facts did not outweigh the presumption against admission of a person charged with assault crimes.
Defendant also argues that the prosecutor abused his discretion by considering defendant's late application. We do not read the prosecutor's memorandum as relying on the lateness of the application as a factor for rejecting the application. Instead, the prosecutor appropriately noted that defendant was charged with two second-degree crimes, negotiated a plea to a third-degree crime, and then applied for PTI. There was nothing inappropriate in noting that procedural history.
Finally, defendant contends that the facts of this case should "overcome the statutory presumption against admitting defendant with second-degree assault charges into PTI." Under Guideline 3(i), the nature of the offense "must be considered and a PTI application 'should generally be rejected' if defendant's crime was . . . deliberately committed with violence or threat of violence against another person." Nwobu, supra, 139 N.J. at 248 (quoting Guideline 3(i), Pressler, Current N.J. Court Rules, comment on R. 3:28 (1995)). "Guideline 3 also provides that persons charged with first- or second-degree crimes 'should ordinarily not be considered for involvement in PTI programs except on joint application by the defendant and prosecutor.'" Ibid. To overcome this presumption, "[a] defendant must demonstrate something extraordinary or unusual, something 'idiosyncratic' in [the applicant's] background." Nwobu, supra, 139 N.J. at 252-53 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).
Here, the trial court correctly determined that defendant failed to demonstrate anything extraordinary or unusual so as to overcome the presumption. Moreover, our review of the complete record satisfies us that the prosecutor appropriately exercised his discretion and there is nothing in the record that would demonstrate a patent and gross abuse of discretion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION