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State v. Carvalho

July 24, 2007


On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, 06-03-00134-I.

Per curiam.


Argued: December 12, 2006

Before Judges Kestin and Graves.

The State appeals from an order admitting defendant into the Somerset County Pretrial Intervention Program (PTI or "the program"), see R. 3:28, following a determination by the Somerset County Prosecutor that defendant did not qualify for the program and over the continuing objections of the State, arguing that "the trial court erred in admitting defendant into PTI over the State's objection without a finding of patent and gross abuse of discretion." The trial court stayed its order pending appeal.

When the question of defendant's eligibility for PTI first came before the trial court, on May 15, 2006, on defendant's application for review of the prosecutor's denial, the judge, stating his reasons in an oral opinion, remanded the matter for reconsideration. When the matter came back to the court with the rejection unmodified, the court ordered defendant admitted to the program.

Defendant stands indicted for second-degree robbery, N.J.S.A. 2C:15-1a(2), and third-degree theft, N.J.S.A. 2C:20-3a, from a bank. According to the testimony of a police detective before the grand jury, defendant handed the bank teller a bag with a note demanding the money in her top drawer. He had a glove on his left hand, and his right hand was in the pocket of his jacket. The teller reported to the police "that when she looked at the pocket of [the] jacket . . . there was some movement inside [the] jacket and she believed that [defendant] had a weapon[.]" She gave defendant "money that was in her teller drawer along with [a] bundle of money that was known as bait money[,]" approximately $1,577. With a description of the robber, his clothing, and his car, along with photographic images from a surveillance camera, the police were able to identify defendant. In an interview with the police, defendant admitted to his involvement in the incident.

Two boxes were checked in the form memorializing the prosecutor's initial denial of the PTI application: that "[t]he victim or complainant opposes the Defendant's entry into supervisory treatment, or the crime is such that the public need for prosecution outweighs the value of the supervisory treatment[;]" and that "[t]he defendant is charged with a serious offense that carries a presumption of imprisonment if the defendant is convicted and has not shown compelling reasons justifying admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Each item contained one or more statutory citations.

In the initial argument to the trial court, counsel presented defendant as a fifty-seven-year-old man with no criminal record. He possessed a master's degree, had been married for twenty-one years, and was a United States Army veteran. Counsel acknowledged that defendant had a history of substance abuse for which he had been treated "since about 1986[.]" Counsel represented that defendant had "got[ten] himself into a dire financial situation." He lacked the money to pay for his son's private school tuition and "[he had] started drinking again, having lost his job being out on disability." According to counsel, defendant "had a momentary loss of moral resolve. * * * He's trying to get his life back in order. He's being treated now for depression and alcoholism." Counsel stressed that, at the time of the incident, defendant had been drinking. Counsel argued that, notwithstanding a second-degree crime had been charged, the State would not be able to prove assaultive behavior, i.e., "threaten[ing] another with or purposely put[ting] him in fear of immediate bodily injury[,]" N.J.S.A. 2C:15-1a(2), and that "this is going to wind up being a third[-]degree case."

The prosecutor in response, argued that the crime qualified in every basic way for second-degree treatment, and "the State's objection [was] appropriate and certainly not an abuse of discretion."

Reviewing the options open to the court, the judge noted the case law that establishes the responsibility of the courts to review such matters with enhanced deference toward the prosecutor's decision. See, e.g., State v. Nwobu, 139 N.J. 236, 246 (1995); State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div 1993). The court was required to find a gross abuse of prosecutorial discretion before it could overrule the denial of admission to the program. Ibid.

In evaluating the situation presented on the initial review, the judge expressly accepted the State's proposition that the matter involved "a serious crime[,]" and that the teller's feeling of having been threatened was reasonable and understandable. The judge continued:

While this court is satisfied that there does not appear to be an abuse of discretion by the prosecutor, nonetheless, the court is satisfied that it would be appropriate under these circumstances, because of the deluded version in the note, because of the issues raised by counsel, . . . that at the very least, this matter be remanded for review ...

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