Opinion
DOCKET NO. A-2549-14T1
01-05-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANCISCO MONTENEGRO-MARTE, a/k/a FRANCISCO J. MARTE, FRANCISCO J. MONTENEGRO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 Nugent and Currier. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 14-02-0098. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, 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 Francis Montenegro-Marte appeals from the September 25, 2014 order confirming the denial of his application for entry into the pre-trial intervention (PTI) program. Because we find defendant has not established that the prosecutor's decision to deny PTI was a patent and gross abuse of his discretionary authority, we affirm.
Following a traffic stop in October 2013, police officers discovered that defendant was in possession of two types of synthetic marijuana. He was charged in an indictment with third degree possession of controlled dangerous substances (CDS) under N.J.S.A. 2C:35-10(a)(1). Defendant entered a guilty plea to both counts of the indictment and was sentenced to non-custodial probation.
Defendant had previously been convicted of receiving stolen property in Pennsylvania in April 2011 and sentenced to an eight-month term of probation.
Defendant applied for admission into the PTI program. In rejecting the application, the prosecutor advised that he had considered defendant's prior record of criminal violations as well as the probationary term which had failed to have the required effect as a sanction to deter future criminal conduct.
In responding to defendant's appeal, the trial judge reasoned that "the Prosecutor's Office ha[d] appropriately reviewed the 17 factors [prescribed by N.J.S.A. 2C:43-12(e)] . . . and that there ha[d] not been a gross abuse of discretion with regard to their decision not to have [defendant] in the pretrial intervention program."
In this appeal, defendant argues that the trial court erred in finding the State's denial of his application for PTI was not a patent and gross abuse of discretion. We disagree and affirm.
Our scope of review of a prosecutor's decision to deny admission to PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). We afford the prosecutor's decision great deference. See State v. Wallace, 146 N.J. 576, 582 (1996). A trial judge can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. State v. Kraft, 265 N.J. Super. 106, 112-13 (App. Div. 1993).
Our review of a PTI application 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, supra, 265 N.J. at 111). In short, it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, supra, 146 N.J. at 585 (citing State v. Leonardis, 73 N.J. 360, 380 n.10 (1977)). Absent evidence to the contrary, a reviewing court must assume that "the prosecutor's office has considered all relevant factors in reaching the PTI decision." State v. Nwobu, supra, 139 N.J. at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981)).
Despite defendant's contentions, we are satisfied the trial judge conducted the proper review of the prosecutor's decision to deny defendant entrance into the PTI program. She noted the prosecutor's consideration of the required factors under N.J.S.A. 2C:43-12(e), specifically defendant's prior conviction and the State's determination that because of such conviction and defendant's previous service of probation, PTI would not be the appropriate avenue to deter future criminal conduct.
Here, the prosecutorial decision has not "gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." State v. Wallace, supra, 146 N.J. at 582-83. Rather, the trial judge applied the appropriate deferential standard of review to reach a sound decision. Defendant has not met his burden of proving the prosecutor's decision was a patent 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