Opinion
A-0867-22
07-06-2023
STATE OF NEW JERSEY, Plaintiff-Appellant, v. GREGORY A. PHELPS, Defendant-Respondent.
William E. Reynolds, Atlantic County Prosecutor, attorney for appellant (John J. Santoliquido, Assistant Prosecutor, of counsel and on the letter brief). Respondent has not filed a brief.
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.
Submitted June 20, 2023
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 22-05-0734.
William E. Reynolds, Atlantic County Prosecutor, attorney for appellant (John J. Santoliquido, Assistant Prosecutor, of counsel and on the letter brief).
Respondent has not filed a brief.
Before Judges Accurso and Messano.
PER CURIAM
During a drunken early morning argument with his sister's boyfriend on June 12, 2021, defendant Gregory A. Phelps cut the victim's forearm with a broken bottle, resulting in medical attention and stitches to close the deep laceration. A domestic violence temporary restraining order (TRO) was issued against defendant. An Atlantic County grand jury indicted defendant on May 11, 2022, for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
During later colloquy between the attorneys and the judge, it became clear that the TRO later was dismissed by the victim. There is no order dismissing the TRO in the record.
Defendant applied for admission to the Pre-Trial Intervention Program (PTI), with counsel submitting a June 9, 2022 statement of extraordinary and compelling circumstances justifying admission. See R. 3:28-1(e)(2)(b) (containing a presumption against admission if a defendant is charged with a crime of violence involving domestic violence); and -1(e)(3) (requiring "a statement of extraordinary and compelling circumstances that justify consideration of the application notwithstanding the presumption against admission"). The statement of compelling circumstances indicated defendant had begun counseling shortly after the incident and "continued . . . for several months "; it did not indicate that defendant was still participating in counseling.
In a comprehensive letter explaining the basis for the State's denial of the application, the assistant prosecutor discussed all seventeen factors listed in N.J.S.A. 2C:43-12(e), explaining those that weighed in favor of defendant's admission, those they weighed against, and those that "do not necessarily weigh in favor of or against" admission. She also said that the State considered defendant's "compelling circumstances letter" that accompanied his application. In summary, although these were defendant's first indictable offenses, the prosecutor explained: "There is nothing specifically exceptional or demanding which would require the entry into the PTI program in this instance, especially since [d]efendant is a violent offender who poses a danger not just to this victim, but potentially to the community at large."
Defendant appealed the State's rejection. Attached as an exhibit to defense counsel's brief was a September 12, 2022 report from a mental health and addiction counseling service, which indicated defendant had attended eighteen sessions since shortly after the incident leading to his indictment and "continue[d] to make positive progress to his treatment goals." The report indicated, however, that defendant attended no sessions between November 2021, and July 2022, i.e., shortly after his indictment and application for PTI.
The judge considered argument on defendant's motion. Defendant contended the prosecutor relied exclusively on the nature of the offense and the victim's impact statement and further asserted that the State did not have all the information regarding defendant's attendance at counseling sessions. The prosecutor countered by emphasizing the violent nature of the offense, the injury suffered by the victim, and defendant's prior disorderly persons conviction for simple assault and "out-of-state criminal history . . . from the State of New York for a drug offense, as well as DUI."
The judge engaged in an extensive discussion directly with defendant regarding his counseling sessions and his prior addiction to opiates. She then focused on the State's rejection letter comments regarding factors five and six. See N.J.S.A. 2C:43-12(e)(5) ("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."); and (e)(6) ("The 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 State said these factors were in equipoise because it was unaware of any specific personal problems . . . character traits[,]" or "circumstances" indicating defendant's behavior would "change through . . . participation in supervisory treatment."
Noting defendant had never before admitted his past opiate addiction, the judge reasoned there was "a tendency, when one is facing criminal charges, to want to not be entirely forthcoming." She added, "I don't find that the . . . State has abused its discretion here, but I . . . think maybe some more information . . . may be helpful." She gave the dismissal of the TRO as an "example." The prosecutor responded "if it wasn't in the initial application and it wasn't in the information submitted to the State, I don't know how the State can be held responsible for taking it into consideration. I don't think it should have been taken into consideration because it wasn't provided."
In rendering her final decision, the judge said:
So now that I have a little bit more information about this . . . and maybe I'm wrong to explain it this way, but I don't find that [the prosecutor's denial] was based on a patent and gross abuse of discretion.... [B]ut I do find that the decision didn't account for all the relevant factors. And I . . . understand that [it] is actually not the failing of the State in reviewing it. It . . . just appears that while [defendant] provided information that he was attending counseling . . . I think he didn't give the detailed information that he's given to the [c]ourt . . . that set forth all of his dates of treatment ....
The judge then continued by describing the events that led to defendant's indictment as a "family situation," where "maybe . . . everybody" was drinking, and defendant "completely overreacted." Noting this was not "a one-time situation for [defendant]," the judge, however, thought "it's the one time that he is being forced to look into the abyss of how a simple . . . nonsense kind of incident, even at home, can have you facing . . . a criminal conviction."
Again, reiterating the State's denial was not "abuse of discretion" but rather was the result of "some information that was not . . . entirely fleshed out . . . and therefore could not be considered by the State," the judge admitted defendant into PTI "with the understanding that it is an offense that require[d] him to submit a guilty plea." See N.J.S.A. 2C:43-12(g)(3)(c) (limiting PTI admission to defendants charged with third- or fourth-degree crimes involving domestic violence unless they enter a guilty plea).
The record does not indicate whether defendant pled guilty.
The judge's November 17, 2022 order admitted defendant into the PTI program for twelve months with conditions. The State now appeals as of right pursuant to Rule 3:28-6(c), and we reverse.
"PTI is essentially an extension of the charging decision, therefore the decision to grant or deny PTI is a 'quintessentially prosecutorial function.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). "As a result, the prosecutor's decision to accept or reject a defendant's PTI application is entitled to a great deal of deference." Ibid. (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). "A court reviewing a prosecutor's decision to deny PTI may overturn that decision only if the defendant 'clearly and convincingly' establishes the decision was a 'patent and gross abuse of discretion.'" State v. Johnson, 238 N.J. 119, 128-29 (2019) (quoting Wallace, 146 N.J. at 583).
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 judgement.... 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, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]
The same standard governs our review. State v. Negran, 178 N.J. 73, 83 (2003). At bottom, "[t]he question is not whether [the judge] agree[s] or disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." State v. Nwobu, 139 N.J. 236, 254 (1995).
"When a defendant convincingly demonstrates a patent and gross abuse of discretion, a court may admit the defendant into PTI over the prosecutor's objection." Johnson, 238 N.J. at 129 (citing Roseman, 221 N.J. at 624-25). But when the prosecutor has failed to consider all relevant information, a remand is more appropriate. Nwobu, 139 N.J. at 247 (citing State v. DeMarco, 107 N.J. 562, 567 (1987)).
In this case, the judge repeatedly concluded that the prosecutor had not abused her discretion by denying defendant's admission into PTI. Yet even though the judge considered, over the prosecutor's objection, additional information - a report from the counseling program that was not submitted until after the rejection - and directly from defendant at oral argument, the judge admitted defendant into the program. She never explained why a remand was not more appropriate but rather simply substituted her judgment for that of the prosecutor. This was clear error. See Nwobu, 139 N.J. at 253 ("A reviewing court 'does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.'" (alteration in original) (quoting State v. Kraft, 265 N.J.Super. 106, 112 (App. Div. 1993))).
However, we see no reason to remand the matter for the State to review this additional information. The report from the counseling service indicates defendant attended counseling for several months immediately after the incident but then did not attend any sessions at all for several months until after he was indicted and his application to PTI was rejected. Defendant admitted in colloquy with the judge that his addiction to opiates was well in the past, and he had been "clean" for more than five years.
The prosecutor considered all the statutory factors and engaged in a thorough weighing process. She appropriately considered that defendant had been indicted for a violent crime. See R. 3:28-4(b)(1)(iii) (noting that in addition to the statutory factors, the "nature of the offense should be considered . . . [and i]f the crime was . . . deliberately committed with violence . . . against another person . . . the defendant's application should generally be rejected"). The prosecutor also gave due consideration to the victim's statement, which detailed the physical and emotional trauma he and defendant's family suffered and urged both punishment and treatment for defendant. See R. 3:28-4(c) (requiring "[t]he prosecutor and the court, in formulating their recommendations or decisions regarding an applicant's participation . . . shall give due consideration to the victim's position . . . on whether the defendant should be admitted). There is no reason to remand the matter for the prosecutor to reevaluate her position.
We therefore reverse and vacate the Law Division's November 17, 2022 order admitting defendant into the PTI. The matter is remanded for further proceedings. We do not retain jurisdiction.