Opinion
DOCKET NO. A-1012-15T2
01-27-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DELEDIN TWINE, Defendant-Appellant.
Rebecca L. Gindi, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan Brody, Deputy Public Defender II, of counsel; Ms. Gindi, on the brief). John R. Ascione, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Acting Somerset County Prosecutor, attorney; 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Yannotti and Gilson. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 14-10-0694. Rebecca L. Gindi, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan Brody, Deputy Public Defender II, of counsel; Ms. Gindi, on the brief). John R. Ascione, Assistant Prosecutor, argued the cause for respondent (Michael H. Robertson, Acting Somerset County Prosecutor, attorney; James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Deledin Twine appeals from a July 31, 2015 order denying his application to compel his admission into the pre-trial intervention (PTI) program over the prosecutor's objection. We affirm because the Law Division correctly determined that the prosecutor's decision was not a patent and gross abuse of discretion.
In 2014, defendant was indicted on one count of third-degree shoplifting, N.J.S.A. 2C:20-11(b). He was also charged with a disorderly persons offense of possessing a burglary tool, N.J.S.A. 2C:5-5(a). Those charges arose out of events that occurred on August 9, 2014. A Verizon wireless store reported that an individual had stolen two cellular phones and fled in a red two-door coupe. Defendant's vehicle was observed in the area, stopped, and he was placed under arrest. The arresting officer observed two iPhones and a pair of wire cutters on the front seat of defendant's vehicle. Defendant was advised of his Miranda rights, waived those rights, and admitted to stealing the cellular phones. The two stolen cellular phones had a value of over $1300.
Defendant applied for PTI. His initial application was denied without an interview. He appealed to the Law Division, which vacated and remanded the matter so that defendant could be interviewed. Following his interview, the PTI director recommended defendant's admission to PTI, but the prosecutor rejected that recommendation.
The prosecutor based his rejection of defendant's PTI application on seven factors: (1) defendant's lack of motivation to successfully complete the program, N.J.S.A. 2C:43-12(e)(3); (2) Verizon's objection to foregoing prosecution, N.J.S.A. 2C:43-12(e)(4); (3) the needs and interest of the victim and society, N.J.S.A. 2C:43-12(e)(7); (4 and 5) a pattern of antisocial behavior and defendant's criminal record, N.J.S.A. 2C:43-12(e)(8) and (9); and (6 and 7) the public's need for prosecution and the harm done to society, N.J.S.A. 2C:43-12(e)(14) and (17).
Defendant again appealed to the Law Division and the Law Division denied his application to compel his admission into the PTI program. Following the rejection of his PTI application, defendant pled guilty to third-degree shoplifting. The disorderly persons offense was dismissed. Defendant was then sentenced to one year of probation and he was required to do fifty hours of community service and pay the requisite fines and fees.
On this appeal, defendant argues:
THE PROSECUTOR'S DECISION TO REJECT DEFENDANT'S PTI APPLICATION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT FACTORS AND CONSIDERED IRRELEVANT AND
INAPPROPRIATE FACTORS, SUBVERTING THE GOALS UNDERLYING PTI.We are not persuaded by this argument.
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. Nwobu, 139 N.J. 236, 240 (1995). The goal of PTI is to allow, in appropriate situations, defendants 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, 348 (2014).
PTI is governed by statute and court rule. See N.J.S.A. 2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2016). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" to PTI instead of being prosecuted. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see also State v. Negran, 178 N.J. 73, 82 (2003) (stating that courts must "allow prosecutors wide latitude").
"Thus, the scope of review is severely limited." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246). Reviewing courts must accord the prosecutor "extreme deference." Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("great deference should be given to the prosecutor's determination not to consent to diversion"). 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." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008).
"[I]nterference by reviewing courts is reserved for those cases where needed 'to check [] the "most egregious examples of injustice and unfairness."'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82). We apply the same standard of review as the Law Division. See State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).
Defendant argues that the rejection of his PTI application by the prosecutor constituted a patent and gross abuse of discretion for three reasons. First, defendant contends that the prosecutor relied on factors that were not supported by the record. As previously noted, the prosecutor identified seven of the seventeen factors that are set forth in N.J.S.A. 2C:43-12(e). In citing to the seven factors, the prosecutor summarized the facts supporting each of those factors. Thus, defendant's real argument is that he disagrees with the prosecutor's assessment of the facts. For example, defendant contends that the prosecutor misstated his juvenile and criminal record. The record establishes, however, that defendant had been adjudicated delinquent as a juvenile. More tellingly, defendant had also been convicted of a disorderly persons offense of theft less than a year before he committed the shoplifting from the Verizon wireless store. Accordingly, defendant has not demonstrated that the prosecutor engaged in a patent and gross abuse of discretion in considering the factors supporting defendant's rejection from PTI.
Defendant also argues that the prosecutor failed to consider relevant mitigating factors, which included defendant's age, employment, enrollment in college, and remorse. In rejecting defendant's PTI application, the prosecutor discussed each of these mitigating factors, but found that some were not supported by the record and the prosecutor gave limited weight to the other mitigating factors. Consequently, defendant has not shown that the prosecutor abused his discretion in weighing the mitigating factors.
Finally, defendant contends that the denial of his application subverts the goal of PTI because it frustrates his rehabilitation. In particular, defendant argues that a criminal record will adversely affect his future employment prospects. Such consideration is quintessentially committed to the discretion of the prosecutor in deciding whether or not to allow a particular defendant into the PTI program. Our review of the complete record satisfies us that the prosecutor appropriately exercised his discretion and there is nothing in the record that would demonstrate a patent and gross 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
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).