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State v. Ocampo


October 26, 2007


On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-04-0282.

Per curiam.


Submitted October 9, 2007

Before Judges Gilroy and Baxter.

In this appeal, we review a Law Division order unconditionally admitting defendant into the Pretrial Intervention (PTI) Program over the objection of the Cape May County Prosecutor. The prosecutor had agreed to admit defendant into the PTI Program, but only if defendant entered a plea of guilty, immediately applied for American citizenship, and agreed to remain enrolled in PTI for three years, the maximum period allowable by law.

After extensive oral argument, the judge observed that the prosecutor did not dispute defendant's suitability for enrollment in the program. The judge determined: the prosecutor imposed the three conditions solely because defendant was an illegal immigrant; the prosecutor's insistence that defendant enter a guilty plea violates the PTI Guidelines, R. 3:28, approved by the Supreme Court, which prohibit prosecutors from demanding a guilty plea as a condition of PTI enrollment; and the prosecutor's insistence on those three conditions was a clear error of judgment and a patent and gross abuse of discretion. On November 27, 2006, the judge entered a confirming order admitting defendant into PTI without those three conditions.

We agree with the prosecutor that the State is entitled to consider a defendant's status as an illegal immigrant along with other relevant factors. State v. Liviaz, 389 N.J. Super. 401, 403 (App. Div.), certif. denied, 190 N.J. 392 (2007). We conclude, however, that the trial judge properly determined that the prosecutor's insistence on the three conditions constituted a per se exclusion of this defendant from PTI based solely upon his illegal immigrant status. Accordingly, we affirm the decision of the trial court.


On March 13, 2006, a Wildwood Crest police officer stopped defendant Juan Ocampo because he was driving a vehicle with a defective muffler. In response to the officer's request that he produce identification, Ocampo, who was driving his employer's van, showed the officer a Mexican voter identification card and a Mexican driver's license, both of which bore a photograph of defendant. The officer believed the driver's license was fraudulent because it was of poor quality with blurred numbers and uneven lines. Defendant insisted that it was a legal license that had been issued by a government official in Mexico, but the officer believed otherwise and arrested defendant for possession of a fraudulent document. At the police station, defendant stated he was "very sorry" and explained that he did not want to have any problems with "this government." According to the arresting officer, Ocampo acknowledged that he was in this country illegally.

On April 11, 2006, a Cape May County Grand Jury returned an indictment charging defendant with the third-degree crime of exhibiting a simulated document, N.J.S.A. 2C:21-2.1(c), specifically the Mexican driver's license. Ocampo applied for admission to the PTI Program, and on July 31, 2006, a probation officer prepared a report recommending that defendant be accepted. The probation officer described defendant as "cooperative," and noted that he "expressed remorse over his involvement in the instant offense."

The probation officer provided information concerning defendant's background. She noted that defendant arrived in the United States in 1999 with his wife and two children, and two more children have been born in this country. Defendant was operating his own landscaping business, and had registered that business with state and federal authorities for taxation purposes. In addition to the income defendant was earning from his landscaping business, he was also working forty hours per week for a local construction company. His employer was withholding all required taxes from defendant's income.

The probation officer observed in her report that:

If it were not for [his] status [as an illegal immigrant], it is likely that the defendant would not have incurred criminal charges. [He] has maintained two positions of employment for several years and is the sole financial provider for his wife and four children. He has no known prior criminal history either in this country or outside of this country.

The report also specified that in an effort to reside in this country legally, defendant applied for a visa on May 23, 2006, at the Mexican Consulate in Philadelphia.

The probation officer concluded:

[In light of] defendant's excellent work history and the lack of a known criminal history, the defendant appears to be an appropriate candidate for enrollment into the [PTI] Program. However, the prosecutor's office will need to address the defendant's illegal status in this country when considering PTI eligibility as this status would place him in violation of United States law every day that he is in the program. Further, due to his being a citizen of a foreign country and his use of false documents, it should be noted that the criminal record check is not a truly reliable source of information.

The probation officer recommended that, if admitted to PTI, defendant serve a six-month term of PTI and perform twelve hours of community service.

That report was forwarded to the prosecutor's office for a final determination. Based on the probation officer's statement that defendant was an illegal immigrant, the prosecutor added three special conditions as prerequisites to defendant's enrollment in PTI: enter a guilty plea; apply for United States citizenship; and serve the three year maximum period in the PTI Program rather than the six months recommended by the probation officer.

Defendant filed an appeal from the conditions of enrollment imposed by the prosecutor, and asked the court to admit him to PTI without the added conditions. In the brief that the prosecutor submitted to the trial court, the prosecutor acknowledged that defendant's status as an illegal immigrant was the sole reason the State was insisting that defendant plead guilty, apply for citizenship and serve the maximum period in the PTI Program. The State conceded that "[c]learly, but for the fact that defendant is an illegal alien in the United States, he would be an excellent candidate for Pre-Trial Intervention."

The State also argued that "[defendant] has not been rejected from the Pre-Trial Intervention Program[;] his participation has merely been conditioned due to his status as an illegal alien." In defending those three conditions, the State argued that all three were "entirely warranted based upon the present illegal alien status of Mr. Ocampo[.]" Finally, the State argued that it had not rejected defendant based on a per se rule excluding illegal immigrants because seven illegal immigrants were already enrolled in the program.

After three days of hearings, Judge Batten rejected the State's contention that it had not denied defendant's PTI application, but had simply imposed appropriate conditions upon his enrollment. The judge concluded that the conditions the State sought were unlawful for the following reasons: (1) The guilty plea requirement violates Guideline 4 of Rule 3:28 and defendant's Fifth Amendment right against self-incrimination; (2) the requirements that defendant plead guilty and initiate citizenship proceedings are antithetical to one another because a guilty plea would impede defendant's application for citizenship; and (3) the requirement that defendant apply for United States citizenship violates his equal protection and due process rights.


We begin our analysis of the trial court's decision by determining whether the State is correct when it argues that the trial court "violated the separation of powers doctrine when it granted defendant's motion to compel [his] admission into [PTI] because defendant filed his motion . . . before the prosecutor made his decision to accept or reject defendant's application." The trial court characterized the State's claim that it had not denied Ocampo's application as "a difference without distinction." We agree. Because the State had offered defendant only a conditioned acceptance, the State's position was tantamount to a formal denial and should be evaluated as such.

As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). Thus, "judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382.

As the State acknowledged, its insistence on the three special conditions was the result of defendant's status as an illegal immigrant. The prosecutor was not obliged to ignore defendant's status as an illegal immigrant, and was entitled to consider it in addition to other relevant factors when he reached a decision on defendant's application for PTI. Liviaz, supra, 389 N.J. Super. at 403. Although immigration status is a relevant factor in a PTI determination, a prosecutor is prohibited from adopting a per se rule disallowing PTI because of such status. Id. at 406.

We therefore review the three special conditions the State imposed against the backdrop of the State's concession that defendant is an otherwise suitable candidate. We turn first to the most problematic of the three conditions, the requirement that defendant enter a guilty plea to the third-degree crime of possession of a simulated document. A prosecutor is prohibited from demanding the entry of a guilty plea unless a defendant's attitude is so poor that the goals of PTI would be subverted without entry of a guilty plea. R. 3:28, Guideline 4. That rule provides:

Enrollment in PTI programs should be conditioned upon neither informal admission [of criminal conduct] nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective. [Pressler, Current N.J. Court Rules, R. 3:28, Guideline 4 (2008).]

Moreover, as noted by Judge Pressler in her comment to Guideline 4, "[n]either admission of guilt nor acknowledgment of responsibility is required. Steps to bar participation solely on such grounds would be an unwarranted discrimination." Pressler, supra, Comment R. 3:28, Guideline 4.

On appeal, the State does not address the Rule 3:28 prohibition of a prosecutor's insistence that defendant enter a guilty plea as a condition of PTI enrollment. Instead, the State advances three arguments in support of its contention that the prosecutor's veto did not amount to an abuse of discretion and that the judge's decision should accordingly be reversed:

(1) defendant has violated federal law for the last fifteen*fn1 years by residing in this country illegally; (2) defendant engaged in fraud and subterfuge when he handed a police officer a false Mexican driver's license and admitted that he obtained a false Social Security card from California; and (3) defendant has never attempted to gain citizenship or other legal status in the United States, and has never expressed a desire to "refrain from obtaining false identification in order to live, drive, and work in this country."

None of those arguments, either individually or in combination, justifies the State's insistence that defendant enter a guilty plea. Rule 3:28, as we have noted, forbids a prosecutor from insisting on a guilty plea unless a defendant expresses no remorse. Here, the probation officer's report expressly noted defendant's statement that he was "very sorry" and "d[id] [no]t want to have a problem with this government." Unquestionably, defendant was remorseful. Thus, the sole exception to Guideline 4 was not satisfied.

An examination of the State's three justifications for its conditions reveals that numbers one and three are nothing other than an objection based on defendant's immigration status, with number one stating so explicitly and number three stating it in a slightly more indirect fashion. The second rationale advanced by the State, that defendant presented a fraudulent driver's license, is the very charge for which defendant is indicted. This particular offense cannot be used as a basis in and of itself for rejecting defendant or imposing special conditions upon his admission. Kraft, supra, 265 N.J. Super. at 115 (holding that a prosecutor may not exclude a defendant from PTI enrollment based solely upon the nature of the offense, except in "appropriate circumstances" involving either a serious offense or criminal conduct specifically enumerated in Guideline 3(i) of Rule 3:28). Thus, the three reasons advanced by the State fail to justify the State's insistence that defendant plead guilty.

We agree with the trial court's observation that these three purported justifications are nothing more than a denial of PTI solely because defendant is an illegal immigrant. That approach is prohibited by Liviaz, supra, 389 N.J. Super. at 403. We agree with defendant that the State has attempted to differentiate its own position from the holding of Liviaz by "fractionalizing its alienage objection into separate parts" in order to avoid the appearance of a per se objection based upon alienage. Under the circumstances presented here, these conditions equate to a per se exclusion as to this particular defendant.

We also reject the State's argument that because seven illegal immigrants are currently enrolled in the PTI Program in Cape May County, the rejection of defendant does not constitute a per se exclusion. The data the State relies on demonstrates merely that these seven individuals were born in Mexico. Being born on foreign soil does not, standing alone, demonstrate that a person is an illegal immigrant. For example, a person born on foreign soil to an American parent can become an American citizen. Nguyen v. INS, 533 U.S. 53, 59, 121 S.Ct. 2053, 2059, 150 L.Ed. 2d 115, 125 (2001). A person born on foreign soil who marries an American citizen can apply for American citizenship and become a citizen. 8 C.F.R. § 204.2 (2007). Thus, the mere fact that seven individuals who are enrolled in PTI were born in Mexico does not demonstrate that they are illegal immigrants. The State's data, therefore, does not demonstrate that this particular defendant was not singled out for unfavorable treatment solely by reason of his immigration status. Accordingly, the State's insistence that defendant plead guilty constitutes a clear violation of the PTI rules. It is also tantamount to the adoption of a per se rule for illegal immigrants prohibited by Liviaz.

As to the requirement that defendant apply for citizenship as a condition of PTI enrollment, we agree with Judge Batten's conclusion that the State's requirement that defendant plead guilty is antithetical to its insistence that defendant apply for citizenship. A person who has a criminal conviction can be deported upon that conviction even if that person has successfully completed a diversionary program and the criminal conviction is ultimately vacated. Acosta v. Ashcroft, 341 F. 3d 218, 224 (3d Cir. 2003) (holding that even if state law requires that a conviction be dismissed after a defendant successfully completes a diversionary program, the conviction remains a matter of record for purposes of federal law immigration under § 101(a)(48)(A) of the Immigration and Nationality Act, thereby warranting deportation). Under such circumstances, Judge Batten was correct when he concluded that the prosecutor's requirement of a guilty plea and his simultaneous insistence that defendant apply for citizenship constituted a patent and gross abuse of discretion.

A prosecutor is not free to disregard the PTI rules. The prosecutor's insistence that defendant plead guilty as a condition of PTI acceptance is impermissible. Such insistence therefore constitutes the "consideration of irrelevant or inappropriate factors" and amounts to a "clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). Consideration of such "irrelevant or inappropriate factors," is a patent and gross abuse of discretion that a reviewing court is obliged to overturn. State v. Wallace, 146 N.J. 576, 582-83 (1996). Judge Batten was correct when he so concluded.


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