Opinion
DOCKET NO. A-4656-12T2
07-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. Y.N., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 11-11-00949. Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On May 8, 2011, defendant Y.N.'s one-year-old son Michael drowned in the bathtub of his home when defendant left him and his two-year-old sister unattended for approximately fifteen minutes. A Cumberland County Grand Jury indicted defendant on one count of fourth degree child abuse and neglect, N.J.S.A. 9:6-3. Defendant was also charged with the disorderly persons offense of hindering prosecution, N.J.S.A. 2C:29-3b(4).
Defendant applied for admission into the Pretrial Intervention Program (PTI) pursuant to the procedures and guidelines established by Rule 3:28 and N.J.S.A. 2C:43-12. After considering the circumstances that led to the child's death, defendant's contrition, and her cooperation in the parallel child welfare proceedings conducted by the Family Part, the Cumberland County Criminal Case Management Office rejected defendant's PTI application. The Criminal Division Manager found the record showed defendant's family members had previously cautioned her against leaving these very young children alone in the bathtub. Under these circumstances, defendant's admission into PTI would deprecate the serious nature of the offense.
The Cumberland County Prosecutor's Office also rejected defendant's application for admission into PTI. The prosecutor explained the basis for rejecting defendant's application in a statement of reasons. She reviewed the circumstances leading to Michael's death, as well as defendant's cooperation with parenting services offered by the Division of Youth and Family Services (DYFS or Division), which formed the basis for the Family Part's decision to allow defendant to retain custody of her other two children. The prosecutor noted she considered these same factors in support of her decision not to charge defendant with the second degree offense of endangering the welfare of a child under N.J.S.A. 2C:24-4. Ultimately, the prosecutor found that several factors in N.J.S.A. 2C:43-12(e) supported her decision to reject defendant's PTI application.
Effective June 29, 2012, this agency was renamed the "Division of Child Protection and Permanency."
Responding to defendant's appeal, the trial court concluded the prosecutor's rejection was supported by the record and reflected a carefully reasoned analysis and due consideration of the guidelines established by Rule 3:28 and N.J.S.A. 2C:43-12. The trial judge held the prosecutor's rejection of defendant's PTI application did not constitute a patent abuse of discretion. State v. Nwobu, 139 N.J. 236, 252-53 (1995).
Defendant thereafter negotiated a plea agreement with the State through which she pleaded guilty to fourth degree child abuse under N.J.S.A. 9:6-3. As part of her factual basis, defendant admitted she left her one-year-old son and two-year-old daughter unattended in the bathtub, creating "a risk that they could be injured very seriously." Under the terms of the plea agreement, the court sentenced defendant to a one-year term of probation and imposed the mandatory fines and penalties.
Defendant now appeals arguing the prosecutor's rejection of her PTI application constituted a patent abuse of discretion because the prosecutor's decision was unduly influenced by the nature of the offense and did not properly consider other factors mitigating and explaining defendant's inadvertent and misguided actions. According to defendant, the prosecutor's rejection subverts the public policy goals underpinning the PTI program because this case involves such idiosyncratic circumstances that denying defendant's PTI application would constitute a "serious injustice." Nwobu, supra, 139 N.J. at 252.
We disagree with defendant's arguments and affirm. The decision to reject defendant's PTI application constituted a proper exercise of the prosecutor's discretionary authority because it was based on a careful consideration of the relevant facts in this case and the public policy factors codified by the Legislature in N.J.S.A. 2C:43-12. Stated differently, defendant did not establish the prosecutor's decision was a "patent and gross abuse" of her discretionary authority, as the Court defined that standard in State v. Bender, 80 N.J. 84, 93 (1979).
We gather the following facts mostly from the account of events included in defendant's Pre-sentence Investigation (PSI) Report considered by the trial court at defendant's sentencing hearing pursuant to N.J.S.A. 2C:44-6 and Rule 3:21-2.
I
On May 8, 2011, twenty-one-year-old defendant was bathing her one-year-old son, Michael, and his two-year-old sister when she decided to leave them unattended for an indeterminate period of time ranging from five to fifteen minutes. Defendant was not asked at the plea hearing how much time transpired before she returned to the bathroom. The record is thus unsettled about both the length of time she was out of the bathroom while the children were in the bathtub and the reasons for leaving them unattended. The PSI report contains two distinctly different explanations addressing both of these questions.
A statement in the PSI report under the heading "offense circumstances" states:
[Y.N.] was secured in a police supervisor vehicle. [Y.N.] first told police that she put [Michael] in the bathtub with her two year old daughter. [Y.N.] advised that she left the water running with the stop plug down, so the water would drain. [Y.N.] reported that she left to retrieve a hair brush and was not gone for more than five minutes.
[(Emphasis added).]
Another part of the same PSI report provides as follows:
On 5/17/11, [Y.N.] requested to talk to police about the incident. [Y.N.] advised that she placed her hair scrunchies on the water handle of the tub while in the water with [Michael] and her two year old daughter. [Y.N.] claimed that her infant was crying, so she went downstairs to prepare a bottle for the infant and food for her other children. Prior to exiting the bathroom, [Y.N.] reported that she removed the rubber stopper to allow the water to drain from the bathtub. [Y.N .] stated that she was down stairs for approximately fifteen minutes preparing food when she remembered that she left her children in the tub alone. [Y.N.] advised that she quickly went upstairs. Once upstairs, [Y.N.] said that she saw her two year old daughter holding [Michael]. [Y.N.] claimed that she observed that her hair scrunchies were down the drain and had stopped the water from draining. [Y.N.] estimated that there [were] ten inches of water in the tub at the time she found [Michael]. Upon questioning by detectives, [Y.N.] admitted that [Michael] is capable of standing up in the tub, and when doing so, the water level is up to his shoulders. [Y.N.] denied unconfirmed information provided to police that she was across the street getting her hair done or that she was on Facebook. Detectives did not file any charges against [Y.N.].
[(Emphasis added).]
To the extent relevant, the record does not include much information about defendant's personal history. She was born in Puerto Rico and required a Spanish language interpreter during all of the proceedings conducted by the trial court, including the plea hearing. The questions ordinarily posed by a judge at a plea hearing concerning a defendant's educational background and employment history were not asked here. According to the PSI report, defendant had three children who were fathered by three different men. She has never been married. She does not have any history of substance abuse or psychiatric problems, although she did receive grief counseling in the aftermath of her son's death. This is the only encounter she has ever had with law enforcement, both as an adult and as a juvenile.
According to the PSI report, DYFS initiated an abuse and neglect investigation immediately after the child's death, and took legal custody of defendant's two remaining daughters and placed them with their grandmother. The girls were two years old and one week old at the time. By the time defendant appeared before the trial court for sentencing in 2013, the Division had returned custody of the girls to defendant (who were by then four and two years old), conditioned upon the maternal grandmother agreeing to supervise. It is undisputed defendant cooperated with parenting classes and was compliant with all of the other services made available to her by DYFS.
The PSI report also contained statements made by Michael's father, defendant's grandmother, and one of defendant's neighbors, all critical of defendant's lackadaisical parenting style and general lax attitude concerning Michael's care and safety. All three claimed defendant had left the one-year-old infant alone in the bathtub on prior occasions. The father in particular claimed he came to see his son on one occasion unannounced and found defendant outside her residence while the infant was alone standing in a bathtub full of water crying. The neighbor told the detectives investigating the incident that she had warned defendant about leaving her son unattended in the bathtub "on several occasions." According to the neighbor, defendant responded to her in a manner that seemed, in retrospect, tragically unappreciative of the potential danger associated with leaving an infant unattended under any circumstances, but especially in a bathtub filled with water.
As a countervailing factor, the PSI report also indicates defendant was inconsolable by the time emergency medical personnel responded to the 911 call made by a neighbor. All of the people who gave statements to the responding police officers described seeing defendant holding her infant son in her arms, screaming, crying, and desperate to save his life. Emergency medical first responders were unable to find a pulse and efforts to administer cardiopulmonary resuscitation (CPR) proved ineffective. An autopsy report dated May 9, 2011, confirmed Michael died from congested lungs as a result of an accidental drowning. No evidence of physical abuse was found.
II
The Criminal Division Manager's Office denied defendant's PTI application based on the following reasons:
The facts as they are stipulated in the Prosecutor's file clearly demonstrate that you had been forewarned of the dangers involved in leaving the victim unattended in the bathtub filled with water. Therefore, one would have to say that it was more than just "ignorance" on your part. Based on the totality of the facts available, this offense is considered too serious for PTI placement. Although it is to your credit that you have complied thus far with Family Court and have been awarded a supervised custody of your remaining children, admission into PTI would serve to deprecate the seriousness [sic] nature of the offense.
The PTI guidelines acknowledge that admission should be limited to those defendants who can be deterred from future criminal behavior by the short-term, low intensity sanctions offered through a pre-conviction rehabilitative opportunity. It is apparent that your sanction needs [sic] exceed the scope of PTI placement and that you are an unsuitable candidate for diversion.
The Cumberland County Prosecutor's Office adopted the Criminal Division Manager's statement of reasons, and also noted the applicability of five factors under N.J.S.A. 2C:43-12(e) that further supported her decision to reject defendant's PTI application. These factors are: (1) the nature of the offense (factor one); (2) the facts of the case (factor two); (3) the needs and interests of the victim and society (factor seven); (4) whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution (factor fourteen); and (5) whether 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 (factor seventeen).
Although the prosecutor identified this as factor fifteen, the language described factor seventeen under N.J.S.A. 2C:43-12(e). We consider this to have been merely an inadvertent clerical error. --------
The prosecutor found the child's death was caused by defendant's "conscious neglect." This determination was based on evidence showing the circumstances that caused Michael's tragic death were not aberrational:
The State has given weight to the fact that the evidence shows that the defendant was previously warned about this practice. However, if there was no evidence that she had been previously warned, leaving a one year old child unattended in a bathtub, thereby causing that child's death is far too serious an offense for admission into PTI. The State would respectfully submit that the defendant has already received the benefit of just consideration by not being prosecuted for second degree Endangering and facing a presumption of imprisonment.
. . . .The State would note that it is laudable that the defendant has completed her parenting classes causing her two surviving children to be returned to her custody. This fact may demonstrate amenability to rehabilitation. However, it is respectfully submitted that allowing her entry into PTI would not be in the best interests of society. . . . The public need for prosecution as well as the harm done by abandoning criminal prosecution is the need for there to be warning to any school, daycare or parent (who does their due diligence) that the defendant committed an act of abuse and neglect that if researched would cause them to find that she caused the death of a child. Having this conviction would bar the defendant from working in a school or daycare thereby protecting the most vulnerable of our society — children. For these reasons, I would respectfully submit that the protection of the public outweighs the defendant's desire to participate in PTI.
Defendant appealed the rejection to the trial court. After reviewing the record and the prosecutor's reasons for rejecting defendant's PTI application, the trial judge found defendant had not presented sufficient grounds to warrant the court's interference with the prosecutor's well-reasoned exercise of prosecutorial discretion. The judge noted the State's reasons did not merely parrot the applicable statutes and guidelines. The reasons were specifically and reasonably connected to defendant's conduct and the surrounding circumstances that caused her infant son's death. The judge found defendant had failed to establish that the rejection amounted to a "gross abuse of discretion."
The court also noted that the prosecutor could have elected to charge defendant with the second degree crime of endangering the welfare of a child under N.J.S.A. 2C:24-4. Her decision to charge defendant with the fourth degree crime of child abuse reflected the prosecutor's sensitivity to defendant's youth and lack of prior criminal involvement and constituted a valid exercise of her prosecutorial prerogative to determine what charges to bring against a defendant.
III
Against this backdrop, defendant now appeals raising the following argument:
POINT I
THE PROSECUTOR'S REJECTION OF DEFENDANT'S PTI APPLICATION DEMONSTRATED A PATENT AND GROSS ABUSE OF DISCRETION, AND MUST BE REVERSED.
A. The Rejection Was Not Premised on a Consideration of All relevant Factors, and in Addition, Was Based on a Consideration of Irrelevant or Inappropriate Factors.
B. The Rejection Amounted to a Clear Error in Judgment and Clearly Subverted the Goals Underlying the PTI program.
C. This Court's Recent Opinion in State v. A.M. Indicates that [Y.N.] Should Have Been Admitted into PTI.
We begin our analysis by noting that 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." Nwobu, supra, 139 N.J. at 240. However, because PTI is a diversionary program, it "is essentially an extension of the charging decision, therefore the decision to grant or deny PTI is a 'quintessentially prosecutorial function.'" State v. Roseman, ___ N.J. ___, ___ (2015) (slip op. at 24) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
Judicial review of a prosecutor's decision to reject a PTI application is "severely limited," and courts must accord the prosecutor "extreme deference." State v. Waters, 439 N.J. Super. 215, 225-26 (App. Div. 2015) (citations omitted). As a reviewing court, we "cannot substitute [our] own judgment for that of the prosecutor even when 'the prosecutor's decision is one which the . . . court disagrees with or finds to be harsh.'" State v. Hoffman, 399 N.J. Super. 207, 216 (App. Div. 2008) (citation omitted). Instead, "judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" State v. DeMarco, 107 N.J. 562, 566 (1987) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
To warrant reversal of a prosecutor's rejection, "a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" Waters, supra, 439 N.J. Super. at 226 (citing State v. Watkins, 193 N.J. 507, 520 (2008)). To satisfy the burden of showing a "patent and gross abuse of discretion," a defendant must prove the prosecutor's decision to deny the PTI application "failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a clear error in judgment." Roseman, supra, (slip op. at 27) (citations omitted) (internal quotation marks omitted).
Stated differently, a "patent and gross abuse of discretion" exists when the prosecutor's decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Wallace, supra, 146 N.J. at 582-83 (citation omitted) (internal quotation marks omitted).
The Wallace Court described this standard in more detail:
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.
[Id. at 583 (quoting Bender, supra, 80 N.J. at 93).]
If we determine the prosecutor "fail[ed] to consider all relevant factors or consider[ed] irrelevant factors, [we] may remand the matter for further consideration." Nwobu, supra, 139 N.J. at 247 (quoting DeMarco, supra, 107 N.J. at 567). If we determine the prosecutor committed a "clear error of judgment," however, we may order enrollment of the defendant into PTI. Ibid. Finally, "[w]hether the prosecutor has based his or her decision on an appropriate factor . . . is akin to a question of law, a matter on which an appellate court may supplant the prosecutor's decision." Ibid. (quoting State v. Maddocks, 80 N.J. 98, 104-05 (1979)).
In promulgating guidelines to Rule 3:28, the Supreme Court described the five purposes of PTI:
(a) To provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense
and the need to prosecute might not have occurred.
(b) To provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.
(c) To provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses.
(d) To assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems.
(e) To deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention.
[Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to R. 3:28 at 1166 (2015).]
These Guidelines work in harmony with the seventeen individual factors listed in N.J.S.A. 2C:43-12(e). While the statute clearly delineates the criteria to be applied, "nowhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned these several criteria." Wallace, supra, 146 N.J. at 585.
Here, the record shows the prosecutor incorporated and applied this analytical scheme to the tragic facts of this case to reach a result which balanced society's compelling interest in protecting the welfare of children with defendant's lack of criminal record and her extremely poor judgment that left both the infant who died and his then two-year-old sibling unattended in an extremely dangerous environment. The "legal rights" of children extend to both the civil remedies available in Title 9 and the protections afforded them through the enforcement of our State's criminal laws. A parent who abuses his or her child may not only lose custody of that child, N.J.S.A. 9:6-8.51, but may also be found guilty of committing a fourth-degree criminal offense. N.J.S.A. 9:6-3.
The prosecutor's decision to reject defendant's PTI application properly considered the twin pillars of this system of protecting children. Defendant has not met her 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