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State v. Mack

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 9, 2016
DOCKET NO. A-0365-15T2 (App. Div. Dec. 9, 2016)

Opinion

DOCKET NO. A-0365-15T2

12-09-2016

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MACK, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Lihotz and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 14-10-1696. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief). PER CURIAM

Defendant appeals from his judgment of conviction following his guilty plea to conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3. Specifically, defendant argues the trial judge erred by denying his application for Pretrial Intervention (PTI) on procedural grounds without a full hearing on the merits. We affirm.

We discern the following facts from the record. On June 16, 2014, Jersey City police observed a group of individuals approach a man sitting on a stoop. One individual acted as a lookout while three others punched the man and removed items from his pockets. Police pursued the individuals, and an officer observed defendant drop a wallet prior to his arrest. Police later determined the wallet belonged to the victim. At his plea hearing, defendant admitted he served as the lookout while his co-defendants robbed the victim.

The trial judge read from the police report during the August 7, 2015 hearing, identifying the date of the incident as August 16, 2014. However, defendant's indictment and judgement of conviction list the date as June 16, 2014. --------

On October 22, 2014, a grand jury returned an indictment charging defendant with second-degree robbery, N.J.S.A. 2C:15-1 (count one); conspiracy to commit second-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); first-degree employing a juvenile in commission of a crime, N.J.S.A. 2C:24-9 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four).

On March 16, 2015, defendant pled guilty to the downgraded third-degree offense of conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3. Following defendant's guilty plea, defense counsel stated defendant was applying for PTI by way of an out-of-time application. The judge stated he had already signed an order permitting the application. The prosecutor objected, stating, "[J]ust for the record, the State is not consenting to that."

On March 30, 2015, a probation officer interviewed defendant and recommended him for enrollment in PTI. On June 12, 2015, the Hudson County Prosecutor's Office opposed this application. First, the prosecutor noted defendant was charged with a second-degree crime of a "violent and assaultive nature" and with a first-degree crime for employing juveniles to help commit the offense, so he was presumptively ineligible for PTI, under Guideline 3(i), absent a compelling reason justifying admission. See Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1235 (2017). The prosecutor found no such compelling reason.

Second, the prosecutor noted defendant denied he committed a crime and denied knowledge of his co-conspirators' actions, despite his later guilty plea. On this basis, the prosecutor found defendant "lacks the motivation to modify his behavior."

Defendant appealed the prosecutor's decision. In its brief opposing this appeal, the State, for the first time, objected to defendant's application on procedural grounds. On August 7, 2015, the court conducted a hearing on this motion. The judge denied defendant's appeal on procedural grounds, finding defendant was barred from enrollment in PTI because he did not apply prior to entering his guilty plea.

However, the judge proceeded to review the merits of defendant's application for "completeness of the record." The judge acknowledged defendant's arguments for PTI, specifically that defendant was not involved in the deliberate act of violence, that he did not attack the victim, and that one of the other participants testified during his plea defendant did not engage in any violent conduct. The judge also noted defendant's arguments regarding his educational record and involvement with a youth program. However, he found the State's reasons for rejecting PTI were not unreasonable under the statutory guidelines and did not constitute a gross abuse of discretion.

The judge then sentenced defendant to two years of probation, imposed fines, and required random urine monitoring and submission of a DNA sample. On appeal, defendant presents the following argument:

[DEFENDANT'S] GUILTY PLEA DID NOT PROCEDURALLY BAR HIS APPLICATION TO PTI BECAUSE ANY
PROCEDURAL BAR WAS WAIVED WHERE, PRIOR TO ACCEPTING THE PLEA, THE JUDGE ENTERED AN ORDER GRANTING [DEFENDANT] PERMISSION TO APPLY TO PTI OUT OF TIME.

Defendant argues the judge erred in denying his appeal on procedural grounds, contending the judge and prosecutor waived any procedural objections by permitting him to apply for PTI following his guilty plea. Defendant acknowledges the judge addressed the issue on the merits, but argues it was merely dicta and requests we remand the matter for "full consideration." Because we find the judge appropriately considered the issue on the merits, we conclude defendant's procedural argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

Admission into the PTI program is based on a favorable recommendation from the PTI director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In determining whether to recommend or consent to admission, the PTI director and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e). The statutory list is not exhaustive and additional relevant factors may also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002), overruled on other grounds by State v. K.S., 220 N.J. 190 (2015).

The scope of judicial review of a prosecutor's determination is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant enhanced or extra deference to the prosecutor's decision. Ibid.

"Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (citation omitted). A reviewing court may order a defendant into PTI over a prosecutor's objection only if the defendant "clearly and convincingly establish[es] that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse" of discretion. State v. Wallace, 146 N.J. 576, 582 (1996) (citation omitted).

An abuse of discretion is manifest if defendant shows that a prosecutorial veto "(a) was not premised upon consideration of all relevant factors, (b) was based upon consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." Id. at 583 (citation omitted). In order for such an abuse of discretion to rise to the level of patent and gross, the defendant must further show that the prosecutorial error complained of will clearly subvert the goals underlying PTI. State v. Bender, 80 N.J. 84, 93 (1979). Absent evidence to the contrary, a reviewing court must assume the prosecutor considered all relevant factors in reaching its decision. State v. Dalglish, 86 N.J. 503, 509 (1981) (citation omitted).

There was no gross abuse of discretion here. Guideline 3(i), supra, at 1235, provides:

If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.
Although defendant eventually pled guilty to a third-degree offense, he was charged with first and second-degree offenses, thereby excluding him from PTI without a "compelling reason[]" justifying admission. A compelling reason is more than being a first-time offender and admitting to the crime; instead, the defendant must show something "extraordinary or unusual" in his or her background justifying admission to PTI. Nwobu, supra, 139 N.J. at 252 (citing State v. Jabbour, 118 N.J. 1, 7 (1990)).

We find defendant did not demonstrate a compelling reason to reverse the prosecutor. Enrollment in PTI should not be based on the "weight of evidence of guilt," State v. Smith, 92 N.J. 143, 147 (1983); however, defendant admitted to acting as a lookout while a group of other individuals punched and robbed a man. Although defendant may not have committed the violence himself, it is uncontroverted that police observed defendant drop the victim's wallet prior to his arrest, which showed his involvement in this act.

Therefore, we conclude the prosecutor appropriately considered the nature of the offense, pursuant to Guideline 3(i), supra, at 1235, and N.J.S.A. 2C:43-12(e)(1), and find defendant has not shown any "extraordinary" circumstances in his background justifying PTI. Nwobu, supra, 139 N.J. at 252. We similarly find defendant has not provided any compelling evidence demonstrating his amenability to the rehabilitative process or that the prosecutor's decision was arbitrary or unreasonable. See Guideline 3(i), supra, at 1235.

Our "severely limited" review of PTI is designed to address "only the most egregious examples of injustice or unfairness," which are not present here. Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)). We discern no abuse of discretion and conclude the prosecutor considered the relevant factors in rejecting PTI.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Mack

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Dec 9, 2016
DOCKET NO. A-0365-15T2 (App. Div. Dec. 9, 2016)
Case details for

State v. Mack

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MACK…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Dec 9, 2016

Citations

DOCKET NO. A-0365-15T2 (App. Div. Dec. 9, 2016)