Opinion
DOCKET NO. A-3707-13T2
03-23-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. N.G., Defendant-Respondent.
Francis A. Koch, Sussex County Prosecutor, attorney for appellant (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief). Gruber, Colabella & Liuzza, attorneys for respondent (Carmen J. Liuzza, Jr., of counsel and on the brief; Virginia D. Liotta, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 13-02-0042. Francis A. Koch, Sussex County Prosecutor, attorney for appellant (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief). Gruber, Colabella & Liuzza, attorneys for respondent (Carmen J. Liuzza, Jr., of counsel and on the brief; Virginia D. Liotta, on the brief). PER CURIAM
The State appeals from the trial court's April 8, 2014, order compelling defendant's enrollment in the Pretrial Intervention Program (PTI) over the prosecutor's objection. Defendant, N.G., was charged in a February 2013 Sussex County indictment with fourth-degree endangering the welfare of a child by possessing videos and images on his computer depicting a child or children engaging in prohibited sexual acts, N.J.S.A. 2C:24-4(b)(5). The State argues it did not engage in a gross and patent abuse of discretion in denying PTI admission; therefore, the State asks us to reverse and reinstate the denial of PTI. Defendant asks us to affirm the order. We shall do neither.
The indictment incorrectly cites N.J.S.A. 2C:24-4(a)(5)(b). N.J.S.A. 2C:24-4(b)(5) was amended after the indictment, L. 2013, c. 51, to broaden the proscribed behavior and to upgrade the penalties.
Having considered the parties' arguments in light of the record and applicable law, we reverse the trial court's order, but remand for further consideration. We do so because the prosecutor failed to consider relevant factors. Under such circumstances, even if a patent and gross abuse of discretion has not been established, a remand is appropriate. See State v. K.S., 220 N.J. 190, 200 (2015).
I.
For this appeal, we accept the State's version of the offense. In August 2011, the Bergen County Prosecutor's Office (BCPO) was investigating internet distribution of child pornography, when it was determined that a computer, traced to defendant's address in Sussex County, was participating in a peer-to-peer file-sharing network involving child pornography. The BCPO reported the activity to the Sussex County Prosecutor's Office (SCPO). Pursuant to a search warrant obtained in December 2011, and based on statements obtained from defendant and a family member, SCPO detectives identified defendant as the user.
A search of the computer disclosed that defendant repeatedly accessed child pornography between February and May 2011. Thus, the record evidence apparently reflects that either defendant ceased accessing the materials several months before investigators' discovery of his participation, or no evidence was collected beyond that date. Born in October 1992, defendant was slightly over eighteen years old when he viewed the materials.
According to the titles of the videos that defendant accessed, the pornography involved children as young as four, and many pre-teens, participating in acts of masturbation, fellatio, and intercourse. It appears from the titles that in some cases the children engaged in sexual acts with other children; in other cases, the children participated with adults. The State's evidence indicated that defendant viewed the same videos on multiple occasions. The State also asserted that defendant made these available for others to view through file-sharing.
Defendant had no prior juvenile or criminal record. He also had no history of substance abuse. He resided with his parents. After graduating from high school, he briefly served in the Marines, but received a general discharge after encountering difficulties in basic training. At the time of his application for PTI in March 2013, he was a full-time student at a county college.
The Sussex County Prosecutor rejected defendant's application, overriding the recommendation of the PTI program director. The April 8, 2013, rejection letter from the assistant prosecutor was, she later conceded, a form letter. The assistant prosecutor stated that a probationary sentence after a guilty plea would be a more suitable disposition.
Regarding defendant's PTI application, she wrote that in "each case, an attempt is made to balance a candidate's apparent potential for rehabilitative efforts on a short-term basis, apparent amenability to correction and the nature of the offenses." She stated that the prosecutor considered all positive information about defendant; however, "[t]he [p]rosecutor . . . feels that the same factors the program relied on to deny your application far outweigh any other factor, which has been presented for our review." The assistant prosecutor then asserted that she had taken into consideration the seventeen factors set forth in N.J.S.A. 2C:43-12(e), and quoted each one, but did not connect them to the facts of defendant's case.
Defendant timely appealed. After an initial hearing in May 2013, and an unsuccessful attempt to resolve the matter, the appeal came before a different judge in March 2014. Prior to that hearing, in August 2013, the assistant prosecutor provided a letter memorandum to the court and defendant setting forth in greater detail the rationale for the prosecutor's rejection of defendant's application. Essentially, the State weighed most heavily the seriousness of the offense, and its impact on the juvenile victims. The assistant prosecutor asserted that the consumption of child pornography by defendant and others creates the demand that in turn leads to the sexual exploitation, sexual assault, and harm to the children depicted in the pornography. The State also noted that the Legislature had recently made the offense with which defendant was charged a third-degree crime.
The assistant prosecutor found that the following factors disfavored defendant's acceptance into PTI: factor seven, "[t]he needs and interests of the victim and society"; factor ten, "[w]hether 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"; factor fourteen, "[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution"; and factor seventeen, "[w]hether 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."
In connection with factor seven, quoted above, the assistant prosecutor noted that defendant "did not merely view child pornography on his computer." He downloaded the pornography, and also distributed it to others. With respect to factor eight, "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior," the State simply referred to its response to factor seven, without acknowledging that defendant's activities, as indicated by the record provided, apparently ceased several months before investigators discovered them.
Regarding other factors related to defendant's personal characteristics, the assistant prosecutor found no persuasive grounds to admit defendant into PTI. Regarding factor three, "[t]he motivation and age of the defendant," the assistant prosecutor simply noted that at that point, "[d]efendant is 20 years old and currently resides with his mother and father." She indicated an absence of any evidence of mental illness or substance abuse in response to factor five, which states:
The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment . . . .As for factor six, "[t]he likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment," the assistant prosecutor referred to her response to factor five.
Defendant obtained a report of a psychologist, Philip H. Witt, Ph.D., who opined that defendant posed a low risk for both sexual and violent recidivism. In his interview with Dr. Witt, defendant asserted that he was primarily searching for images of young women close to his own age, and he deleted pornography depicting young children. Dr. Witt was unconvinced that defendant's activity was a reflection of a pedophilic sexual preference, or an antisocial personality. Rather, defendant's activity reflected experimentation and exploration of fantasies. Dr. Witt concluded that defendant "presents as well within the limits of risk appropriate for outpatient management." He concluded, "I do not recommend a comprehensive sex offender specific treatment plan for [defendant]; such intensive treatment is not necessary in his case." He recommended short-term counseling to focus on judgment and self-control issues.
In overturning the prosecutor's decision, the court independently reviewed each of the seventeen factors, finding many inapplicable. However, regarding factor one, "[t]he nature of the offense," factor two, "[t]he facts of the case," and factor three, "[t]he motivation and age of the defendant," the court acknowledged that the charges did not involve "a technical violation of the statute, but again, spread over several months, a real substantial violation, knowing, purposeful . . . ."
The court noted that the children depicted were very young and engaged in "sexually explicit activities." The court also noted that "the motivation was an interest in the material that is forbidden, that was not just a trivial or passing interest." The court also acknowledged, with respect to factor seven, that society has a strong interest in preventing the exploitation of children. Contrary to the State, the court found that factor ten did not apply, because the crime was not of an assaultive or violent nature.
Recognizing the prosecutor's reliance primarily on the nature of the offense, the judge concluded the prosecutor erred in not placing greater weight on the characteristics of defendant himself. "I think our jurisprudence suggests that there should be a different kind of analysis that focuses more closely on the individual offender, or at least the defendant, I should say." The court noted that defendant had no prior or subsequent history of anti-social or unlawful activity. And the PTI program would provide "the structure . . . to address the appetite that is cited by the State as a basis for concern and perhaps rejection." The court found defendant was someone "who can and will obey the law." The court also considered the significant negative impact a criminal conviction would have on defendant, including his ability to obtain employment.
II.
We first address our standard of review. "Issues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105; see also K.S., supra, 220 N.J. at 199 (holding that a prosecutor may not consider prior dismissed charges for any purpose in connection with a PTI application where the facts related to the arrest are in dispute or have not been determined after a hearing); Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
Defendant misplaces reliance on State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006) and the proposition that we exercise limited review of the trial court's determination, assessing only whether there was sufficient, credible evidence for its decision. First, McKeon addressed an appeal from a trial court decision affirming, as opposed to overturning, a prosecutor's rejection of PTI. Id. at 563. The Supreme Court has noted that where a trial court has concluded that a PTI applicant has not met its "heavy burden" to overturn a prosecutor's denial, "an appellate tribunal should be even more reluctant to overrule the prosecutorial determination." Maddocks, supra, 80 N.J. at 104 (internal quotation marks omitted). Second, the issue in McKeon was the trial court's interpretation of a statute. 386 N.J. Super. at 567. McKeon applied a deferential standard of review to the trial court's fact findings, not its determinations of law, or the legal consequences that flow from established facts. Ibid.
While we exercise de novo review over the propriety of considering a certain PTI factor, we afford prosecutors "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. This discretion arises out of the prosecutor's charging authority. Id. at 200. "Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must 'clearly and convincingly' show that the decision was a 'patent and gross abuse of discretion.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
We extend "'enhanced'" deference to the prosecutor's decision. State v. Nearan, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997 )). The court's "severely limited" scope of review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Although the prosecutor's discretion is not unlimited, we will rarely overturn the rejection of a PTI applicant. State v. Brooks, 175 N.J. 215, 225 (2002).
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria for the prosecutor's consideration. N.J.S.A. 2C:43-12(e); see Brooks, supra, 175 N.J. at 223-24. A prosecutor must set forth his or her reasons for rejecting a PTI candidate. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A prosecutor "may not simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at 249. Among other purposes, a detailed, defendant-specific statement of reasons enables a defendant to respond, promotes confidence in the prosecutor's decision making, and facilitates judicial review. Nwobu, supra, 139 N.J. at 249.
"[T]he program director and prosecutor 'must actually consider the merits of the defendant's application.'" K.S., supra, 220 N.J. at 198 (quoting State v. Green, 413 N.J. Super. 556, 561 (App. Div. 2010)). The prosecutor may not weigh inappropriate factors, or ignore appropriate factors. K.S., supra, 220 N.J. at 200. A PTI rejection "must reflect only a proper consideration of the identified information . . . ." Id. at 198 (internal quotation marks and citation omitted).
To meet the "gross and patent abuse of discretion" standard to justify supplanting the prosecutor's decision, a defendant must satisfy one of three factors and must also show the prosecutor's decision undermines the purpose of PTI:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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. 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.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
However, when a defendant has not met this high standard, but nonetheless has demonstrated an abuse of discretion, a remand is appropriate.
When a reviewing court determines that the "prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse of discretion," the reviewing court may remand to the prosecutor for further consideration. Remand is the proper remedy when, for example, the prosecutor considers inappropriate factors, or fails to consider relevant factors.As the Court explained, this middle-ground preserves the exercise of the prosecutor's discretion, while assuring that the PTI standards are properly employed. Ibid.
[K .S., supra, 220 N.J. at 200 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)).]
III.
Applying these principles, we conclude the trial court erred in overriding the prosecutor's decision. We are convinced the trial judge simply substituted his judgment for the prosecutor's, which is inconsistent with the required deferential standard of review. In State v. Wallace, 146 N.J. 576, 589 (1996), the Court reversed the override of a prosecutor's rejection of PTI, finding:
[t]he court essentially evaluated the case as if it stood in the shoes of the prosecutor, whereas it should have been focused on whether it amounted to an "arbitrary, irrational or otherwise an abuse of discretion" for the prosecutor to have assigned as much weight to the gravity of the offense as she apparently did in this case.
On the other hand, we are convinced that the prosecutor failed to consider relevant factors. The State's initial letter of rejection fell woefully short of what is required. While the memorandum to the court and defendant in August 2013 was a significant improvement, it was still deficient in several respects.
The assistant prosecutor candidly admitted at oral argument that she "put together a form letter . . . and it just basically states, I refer to all the factors, and I enumerated them, and I reject you."
--------
The State failed to consider defendant's youth at the time of the offense. The August 2013 memorandum refers to him as twenty years old. Yet, he was barely a few months past eighteen years of age when he allegedly committed the offenses. Although defendant was an adult under the Code of Criminal Justice, the State failed to consider that defendant was nonetheless an immature offender who was still developing emotionally. "[P]rosecutors in making a Pretrial Intervention determination must make an individualized assessment of the defendant, taking into account all relevant factors." K.S., supra, 220 N.J. at 202.
Although defendant submitted the report of Dr. Witt after the State provided its August 2013 memorandum, it was incumbent upon the State to consider the opinion set forth in the report. Cf. K.S., supra, 200 N.J. at 202 (stating that a prosecutor is required to consider a defendant's mental illness). Dr. Witt's opinion was particularly relevant to factors five and six, regarding defendant's susceptibility to treatment. Dr. Witt did not believe defendant's activities reflected a pedophilic preference or an antisocial personality, but rather emanated from experimentation and exploration. He was a candidate for short-term counseling, and did not require sex offender treatment. In other words, Dr. Witt opined, pertinent to factor six, that defendant's alleged crime "related to a condition . . . conducive to change through his participation in supervisory treatment," and pertinent to factor five, the "causes of the criminal behavior can be controlled by proper treatment."
The State also failed to consider relevant factors with respect to factor eight, "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior." The State simply referenced its response to factor seven, in which it noted that defendant allegedly participated in file sharing. The State did not acknowledge that, according to the record before us, defendant's activities occurred between February and May 2011 and then apparently ceased, several months before investigators discovered them. Dr. Witt moreover opined that defendant's conduct was not consistent with an anti-social personality.
We shall not substitute our judgment for the prosecutor in determining whether to admit defendant into PTI. However, we note that notwithstanding the seriousness of the offense, pre-trial intervention has nonetheless been found warranted in appropriate cases. Cf. In re Cohen, 220 N.J. 7, 13 (2014) (discussing license suspension of attorney who was admitted to pretrial intervention after pleading guilty to endangering the welfare of a child by possessing child pornography). In this case, we are persuaded that the prosecutor failed to properly consider relevant factors. Consequently, although we reverse the trial court's order compelling defendant's admission into PTI, we remand to the prosecutor for reconsideration of defendant's application.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION