On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue in this case is whether Union County's prosecutor abused his discretion denying the application of James T. Brooks for pretrial intervention (PTI) based in part on Brooks' juvenile and adult arrest records.
On September 23, 1998, Brooks, a resident of Maryland and self-employed bail bondsman and private investigator, was driving his automobile on Route 78 in Union County. A police officer on patrol observed Brooks' car traveling approximately ten miles per hour above the posted speed limit. The officer followed Brooks and directed him to pull over. After approaching the vehicle, the officer found an opened, half-full can of beer on the interior console. Brooks was asked to exit the car, and informed the officer that he had another can of beer in the back seat.
Another officer arrived and they searched the vehicle, finding a .380 9mm handgun under the floor mat in the back seat. The gun was loaded with a five-round clip. The officers also smelled marijuana and observed a burnt marijuana cigar in the ashtray.
Brooks stated that he had smoked the marijuana approximately three weeks earlier. He also explained that he had purchased the gun because of his job and that he rarely carried it. He produced an approved gun application and a sales receipt, asserting that under Maryland law those documents gave him the right to purchase and transport the weapon. He later admitted that he had not stored the gun properly for transport and that he did not have a permit to carry it outside his home.
Police arrested Brooks for unlawful possession of a handgun and possession of a controlled dangerous substance. They also issued him a summons for speeding and driving with an open container of alcohol.
Brooks applied for admission into Union County's PTI program. In a letter dated January 19, 1999, the PTI program director informed Brooks that his application had been denied. The director cited the serious nature of the charged offenses, possession of a weapon and possession of marijuana, explaining they had the potential for violence. The director also noted Brooks' record, and his "continual involvement with the criminal justice system." Eight complaints had been filed against Brooks as a juvenile, two of which resulted in probation. In addition, the director cited to two arrests as an adult, one for shoplifting and assault, the other for possession of a weapon and obstructing police. Although both charges were dismissed, the director found them to "display a pattern of disregard for the criminal justice system."
The prosecutor concurred with the director's determination. Brooks moved before the trial court to compel his admission into the PTI program. The court denied the motion, emphasizing that as a bondsman Brooks, more than anyone else, had to know that carrying the handgun without a permit was wrong. The court also cited Brooks' prior contact with the criminal justice system both as a juvenile and as an adult.
Brooks entered into a plea agreement under which the prosecutor dropped the drug possession and open- container charges in exchange for Brooks' plea of guilty on the handgun count. The other traffic summonses were remanded to the municipal court. The trial court accept the plea and sentenced Brooks to two years probation, imposed a $500 fine, and assessed the usual fees and costs.
Brooks appealed the denial of his application to PTI. The Appellate Division upheld the rejection of Brooks' application, finding no patent or gross abuse of discretion or consideration of irrelevant factors.
The Supreme Court granted Brooks' petition for certification.
HELD: Officials who implement the PTI process may draw limited inferences from an applicant's criminal history that contains dismissed offenses. The prosecutor's rejection of this PTI application based on Brooks' juvenile and adult history, the facts surrounding the present offenses, and other permissible factors, was not a patent and gross abuse of discretion.
1. One purpose of PTI is to augment the options of prosecutors in disposing of criminal matters. Another is to provide applicants with opportunities to avoid prosecution by receiving early rehabilitative services or supervision where they can reasonably be expected to deter future criminal behavior. Although there are no explicit per se rules excluding offenders from PTI eligibility, the statute provides that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense. N.J.S.A. 2C:43-12a. The judiciary accords enhanced deference to a prosecutor's decision in respect of a PTI application. To succeed in challenging the denial of a PTI application, the defendant must prove clearly and convincingly that the prosecutor's decision was a patent and gross abuse of discretion. More specifically, a defendant must show that the prosecutor's decision (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. (pp. 7-11)
2. Brooks contends that the prosecutor improperly considered his juvenile record. The Court notes that there is no explicit provision in the statute's text precluding a prosecutor's consideration of juvenile records. Moreover, the statute impliedly invites a prosecutor to consider a defendant's juvenile history by permitting consideration of the defendant's record of criminal and penal violations and whether the defendant's crime is part of a continuing pattern of anti-social behavior. Brooks cites to a Law Division decision from 1986 holding that a prosecutor cannot consider an applicant's juvenile offenses when evaluating a PTI application. To the extent that any question remains concerning whether this decision is persuasive authority, the Court expressly overrules it. (pp. 11-15)
3. The Court also rejects Brooks' argument that a prosecutor may not consider those aspects of an applicant's juvenile and adult histories that contain dismissed offenses. A prosecutor who takes into account such information as part of an applicant's overall record is acting like a trial court that sentences a defendant whose criminal history includes prior arrests. The Court has held that a sentencing court properly can consider a defendant's prior arrest record, including arrests for offenses that ultimately had been dismissed. There are limits, however, to the use of a defendant's criminal arrest history. Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment. Those aspects of a defendant's history may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense. (pp. 15-17)
4. The prosecutor did not commit a patent and gross abuse of discretion under the applicable case law. The facts surrounding the gun, drug, and open-container charges formed an adequate basis to support the prosecutor's decision when considered in concert with other relevant factors. (pp. 17-19)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, dissenting, expresses the view that prior unsubstantiated and dismissed charges are without factual support in the record and therefore are not relevant in the PTI decision-making process.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LaVECCHIA, and ZAZZALI join in JUSTICE VERNIERO's opinion. JUSTICE ALBIN has filed a separate, dissenting opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Verniero, J.
Argued September 24, 2002
The issue in this case is whether Union County's prosecutor abused his discretion by denying defendant entry into that county's pretrial intervention (PTI) program based in part on defendant's juvenile and adult arrest records. We affirm the judgment of the Appellate Division upholding the prosecutor's determination. We emphasize, however, that courts, prosecutors, and PTI program directors may draw only limited inferences from juvenile or adult criminal histories that contain dismissed offenses. We further observe that some juvenile infractions may be so minor or distant in time that they provide no reasonable basis to support a prosecutor's rejection of PTI in a given case.
These are the pertinent facts. On September 23, 1998, defendant James T. Brooks, a resident of Maryland and self- employed bail bondsman and private investigator, was driving his automobile on Route 78 in Berkeley Heights. While on patrol, a police officer observed defendant's car traveling approximately ten miles per hour above the posted speed limit. The officer followed defendant for three to four miles before directing him to pull over. After approaching the vehicle the officer found an opened, half-full can of beer on the interior console. The officer asked defendant to exit the car. Defendant informed the officer that he had another can of beer in the back seat. At that juncture, another officer arrived to assist the first officer.
The officers searched defendant's vehicle and found a .380 9mm handgun under the floor mat in the back seat. The gun was loaded with a five-round clip. The officers also smelled marijuana and observed a burnt marijuana cigar in the ashtray. Subsequent tests revealed that the weight of the marijuana was .287 grams. According to court records, defendant stated that he had smoked the marijuana approximately three weeks earlier and had left its residue in the car. He asserted that he had not smoked marijuana since that time and acknowledged that he "should have known better." In respect of the gun, defendant explained that he had purchased it because of his job and that he rarely carried it. Defendant produced an approved gun application and a sales receipt. Defendant asserted that under Maryland law those documents gave him the right to purchase and transport the weapon. (Defendant later admitted that he had not stored the gun properly for transport and that he did not have a permit to carry it outside his home.)
The police arrested defendant for unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b, and for possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10a(4). They also issued him a summons for speeding, in violation of N.J.S.A. 39:4-98, and for driving with an open container of alcohol, in violation of N.J.S.A. 39:4-51A. We infer that defendant was not legally intoxicated when arrested in view of the absence of an intoxication charge.
Defendant applied for admission into Union County's PTI program. In a letter dated January 19, 1999, the PTI program director informed defendant that his application had been denied, explaining, in part:
YOUR OFFENSES, POSSESSION OF A WEAPON AND POSSESSION OF MARIJUANA, HAD THE POTENTIAL FOR VIOLENCE, WHICH CONSTITUTES GROUNDS FOR REJECTION UNDER PTI GUIDELINES. BERKELEY HEIGHTS POLICE FOUND A LOADED ACCESSIBLE WEAPON (9MM GUN), IN YOUR VEHICLE AFTER EXECUTING A ROUTINE TRAFFIC STOP. YOU WERE ALSO UNDER THE INFLUENCE OF ALCOHOL. AN OPEN BEER CAN AS WELL AS MARIJUANA WERE FOUND IN THE VEHICLE. ALTHOUGH THIS GUN WAS LEGALLY PURCHASED IT WAS NOT PROPERLY STORED FOR TRANSPORT IN THAT IT WAS NOT UNLOADED AND PLACED IN A CARRYING CASE. THIS OFFENSE FAR OUTWEIGHS THE POSITIVE REHABILITATIVE FACTORS WHICH MIGHT BE PRESENT IN YOUR CASE. ACCEPTANCE INTO THE PTI PROGRAM WOULD DEPRECATE THE SERIOUS NATURE OF THE OFFENSE.
ADDITIONALLY, YOU HAVE NOT DEMONSTRATED SUFFICIENT EFFORT TO EFFECT THE NECESSARY BEHAVIORAL CHANGE AS INDICATED BY YOUR CONTINUAL INVOLVEMENT WITH THE CRIMINAL JUSTICE SYSTEM. ACCORDING TO CRIMINAL RECORDS YOU HAVE SERVED TWO JUVENILE PROBATION TERMS WITH THE UNION COUNTY PROBATION DEPARTMENT. AS A JUVENILE OVER EIGHT COMPLAINTS WERE FILED AGAINST YOU IN SCOTCH PLAINS, FANWOOD, NORTH PLAINFIELD AND WATCHUNG. THE CHARGES INCLUDE MOTOR VEHICLE THEFT, BURGLARY, TRESPASSING, RECEIVING STOLEN PROPERTY AND TRUANCY. AFTER BEING DISCHARGED FROM PROBATION IN 1989 YOU HAD TWO ARRESTS IN 1992. IN NORTH PLAINFIELD YOU WERE ARRESTED FOR SHOPLIFTING AND ASSAULT, AND IN PLAINFIELD YOU WERE ARRESTED FOR POSSESSION OF A WEAPON AND OBSTRUCTING POLICE. ALTHOUGH BOTH OF THESE CHARGES WERE DISMISSED THEY DISPLAY A PATTERN OF DISREGARD FOR THE CRIMINAL JUSTICE SYSTEM, AND INDICATE THAT PTI COUNSELING WOULD BE INEFFECTIVE IN DETERRING YOU FROM FURTHER CRIMINAL ACTIVITY.
DESPITE YOUR GAINFUL SELF-EMPLOYMENT, COMPLIANCE WITH PTI CONDITIONS, AND NUMEROUS LETTERS PRAISING YOUR PROFESSIONALISM, SCHOLASTIC ACHIEVEMENT AND CHARACTER, THE SERIOUS NATURE OF THE CHARGES COUPLED WITH YOUR CONTINUAL INVOLVEMENT WITH THE CRIMINAL JUSTICE SYSTEM BAR YOU FROM PTI PARTICIPATION. IF SERVING TWO TERMS OF JUVENILE PROBATION AND NUMEROUS ENCOUNTERS WITH THE POLICE DO NOT DETER YOU FROM CRIMINAL ACTIVITY, IT IS DOUBTFUL THAT PTI WILL. THE ABOVE FACTORS WARRANT YOUR REJECTION FROM THE PTI PROGRAM.
The prosecutor concurred with the director's determination. Defendant moved before the trial court to compel his admission into the PTI program. The court denied that motion. It emphasized that as a bondsman defendant likely had posted numerous bonds for persons carrying handguns without permits and thus "more than anyone else . . . [defendant] knew [that his gun offense] was wrong, and he disregarded that." The ...