Opinion
DOCKET NO. A-5773-14T1
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BENITO LUNA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Bertuzzi, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-12-2102. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Bertuzzi, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from a judgment of conviction entered on July 31, 2015, for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). In particular, defendant challenges the decision to deny his application for admission into the Pretrial Intervention (PTI) program. We have considered defendant's contentions in light of the record and applicable legal principles and find them unpersuasive.
I.
We discern the following facts from the record. When a Good Samaritan who believed that defendant was manhandling his one-year-old infant on the street came to the child's aid, defendant grabbed a pick ax from a nearby yard and menaced the Good Samaritan with it. As a result, defendant was indicted for third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count one), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two). He was no-billed for child endangerment. Defendant was arraigned on January 17, 2012, but failed to appear for his next court date, resulting in the issuance of a bench warrant. In 2014, defendant was arrested out of state on the 2012 bench warrant and released on bail. He again failed to appear for a January 12, 2015 court date, but turned himself in three days later and applied for PTI.
The PTI Director and the prosecutor rejected defendant's application for PTI based upon an evaluation of N.J.S.A. 2C:43-12(e)(3) (factor three), namely, the motivation and age of defendant, as well as his failure to appear for his initial PTI interview in 2011 and subsequent court dates. In addition, the prosecutor's rejection was premised on the following factors set forth in N.J.S.A. 2C:43-12(e): the nature of the offense, N.J.S.A. 2C:43-12(e)(1) (factor one); the facts of the case, N.J.S.A. 2C:43-12(e)(2) (factor two); the needs and interests of the victim and society, N.J.S.A. 2C:43-12(e)(7) (factor seven); whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior, N.J.S.A. 2C:43-12(e)(10) (factor ten); and whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17) (factor seventeen).
In connection with factors one, two and ten, the prosecutor explained that "a Good Samaritan came to the aid of the defendant's child when the Good Samaritan observed the defendant to be manhandling the child. The defendant responded to the Good Samaritan by getting a pick ax and menacing him with the weapon." As to factor three, the prosecutor noted that "the defendant's statement to the PTI interviewer [was] utterly lacking in both remorse and contrition. Apparently, the defendant does not believe that his parenting skills need fine tuning." With respect to factors seven and seventeen, the prosecutor reasoned that "the interests of the toddler and the Good Samaritan, as victims, necessitate a vigorous prosecution in order to address parenting shortcomings as well as the inclination to resort to the use of weapons on a public street."
The trial court rejected defendant's argument that the prosecutor failed to consider all of the factors and considered inappropriate factors in denying his PTI application. In concluding that defendant failed to show a "patent and gross abuse of discretion" by the prosecutor, the court reasoned:
It was not inappropriate for the Prosecutor's Office to consider defendant's acts towards his child in denying his PTI Application. Defendant acknowledged that he put his child in the stroller roughly to the PTI interviewer ("someone came up and yelled at me for putting him [son] in his stroller roughly"). While, defendant may have been no-billed before the Grand Jury, these dismissed charges are not completely undisputed. See State v. K.S., 220 N.J. 190 (2015). As the State correctly asserts, defendant putting his child into the stroller roughly is what caused [the victim] to approach him. Defendant's response was to grab a pick ax and rant at this individual, a stranger to him. Defense counsel candidly admits defendant may have a slight anger issue and anger management classes would be appropriate in addressing his client's behavior. However, defendant refuses to acknowledge that he may have lost his temper, rather telling the PTI interviewer that he was walking with his son "and someone came up and yelled at me for putting him in his stroller roughly then they said I threatened them with
a pick ax." PTI is premised on rehabilitation, while admission into PTI does not require defendant to provide a confession of wrongdoing, it is unclear how anger management classes would deter future criminal conduct when defendant is unwilling to acknowledge he may have lost his temper. See Rule 3:28, Guideline 1(a) and (b).After being denied PTI, defendant pled guilty to count two and was sentenced to time served, which amounted to eleven days in jail. Mandatory fines, fees and penalties were assessed.
Moreover, the [c]ourt agrees with the assessment of the PTI Director that defendant has an overall disregard for the entire court system [and] is likewise troubled by the fact that defendant continually failed to appear for [c]ourt. Defendant was a fugitive for over two years after his arraignment. After defendant was arrested on the bench warrant and released on bail, he again failed to appear again for his court date. PTI is a minimum supervision program and as the Criminal Division recognized, defendant's failure to appear shows his apparent disregard for the entire Court process, requiring a higher level of supervision.
On appeal, defendant argues that the reasons posited for rejection constitute a gross and patent abuse of discretion because "it was not based on all the relevant offense- and offender-oriented factors pursuant to N.J.S.A. 2C:43-12(e) and Guideline 3 of R. 3:28." In addition, according to defendant, neither the Director nor the prosecutor cited any factors in defendant's favor, such as "the lack of any prior arrests or subsequent convictions for this [thirty-four-year-old] man." Further, defendant asserts that the prosecutor "irrationally and arbitrarily" determined that he "would not be an appropriate candidate for the PTI program" thereby subverting "the goals underlying PTI." According to defendant, "[t]he PTI program would have provided [him] with rehabilitation that would have deterred any future criminal conduct" and would have avoided the harsh "collateral consequence of deportation" resulting from traditional prosecution.
II.
"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. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The goal of PTI is to allow defendants in appropriate situations to avoid the potential stigma of a conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 347-48 (2014). "Eligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur." Roseman, supra, 221 N.J. at 622 (citation omitted).
Deciding whether to permit a defendant to divert 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)), for which a prosecutor is given "broad discretion[.]" K.S., supra, 220 N.J. at 199 (citations omitted). It involves the consideration of a non-exhaustive list of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to "make an individualized assessment of the defendant considering his or her amenability to correction and potential responsiveness to rehabilitation." Roseman, supra, 221 N.J. at 621-22 (citing N.J.S.A. 2C:43-12(b); State v. Watkins, 193 N.J. 507, 520 (2008)). "These factors include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" Roseman, supra, 221 N.J. at 621 (alteration in original) (quoting Watkins, supra, 193 N.J. at 520). The Supreme Court has promulgated Guidelines accompanying Rule 3:28 that work in harmony with the seventeen individual factors listed in N.J.S.A. 2C:43-12(e).
The scope of our review of a PTI rejection is "severely limited" and designed to address "only the most egregious examples of injustice and unfairness." State v. Negran, 178 N.J. 73, 82 (2003) (citations omitted). "In order 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," meaning that the decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Watkins, supra, 193 N.J. at 520 (citations omitted). An abuse of discretion has occurred where it can be proven "that the [PTI] denial '(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[.]'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979), certif. denied, 222 N.J. 18 (2015)). "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." Roseman, supra, 221 N.J. at 625 (quoting Bender, supra, 80 N.J. at 93).
Applying these principles, we discern no abuse of discretion in the prosecutor's denial of defendant's application, let alone one that is patent and gross. Accordingly, there is no basis to disturb the trial court's decision sustaining the prosecutor's denial. The reasons for the denial were valid and premised on consideration of the relevant factors, the majority of which weighed against defendant's admission. We reject defendant's contention that relevant factors under the statute were not considered. Absent evidence to the contrary, a reviewing court must presume the prosecutor considered all relevant factors in reaching its decision. Dalglish, supra, 86 N.J. 509. Although the absence of a prior criminal conviction was not explicitly articulated in evaluating defendant, by definition, PTI eligibility is ordinarily "limited to persons who have not previously been convicted of any criminal offense." N.J.S.A. 2C:43-12(a). Equally unavailing is defendant's contention that the court failed to consider "the extreme penalty" of deportation that could result. "It is not sufficient to reverse that [the court] find[s] a decision to be harsh." State v. DeMarco, 107 N.J. 562, 567 (1987).
Defendant asserts that the Director and the prosecutor relied on an inaccurate inference that defendant refused to participate in parenting classes. We disagree given defendant's statement to the PTI interviewer evidencing a lack of remorse or contrition. Further, we agree that consideration of defendant's conduct towards his child was proper and supported by "undisputed facts of record." K.S., supra, 220 N.J. at 199. In addition, we agree with the court, the prosecutor and the Director that defendant's record of failing to appear for court dates and fugitive status for over two years demonstrated a manifest disregard and contempt for the court system that rendered him a poor candidate for PTI's goal of short-term rehabilitation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION