November 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DIONISSIO SPIROPULOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-09-2140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Wefing and R. B. Coleman.
Defendant Dionissio Spiropulos appeals from the denial of his application for pretrial intervention (PTI). Indicted and charged with fourth degree criminal sexual conduct, N.J.S.A. 2C:14-3b, defendant applied for PTI and was rejected. He appealed to the Law Division and on February 10, 2006, the court ordered that the PTI Director re-interview defendant and that the prosecutor's office reconsider defendant's PTI application. After complying with the court's order, the PTI Director and the prosecutor's office again rejected defendant from the program. The supplemental PTI rejection memorandum of the Office of the Monmouth County Prosecutor, dated February 24, 2006, provides in substantial part, as follows:
It appears that the only additional information contained in the PTI investigator's revised report is that involving the defendant's interview. The defendant advised the PTI investigator that he was "in heat," and had not had sex with his wife for six months, so he stood on a toilet in his home and masturbated. He stated that a "neighbor" observed him, but that he was not masturbating in front of her purposely. He additionally indicated that he had masturbated in front of his neighbor in the past, that he was remorseful, and that he has sought counseling with and without his wife. He stated that he has no contact with his neighbor and has seen her a few times since the incident.
Although the defendant's interview by the PTI investigator provides additional information, it does not materially affect the undersigned's analysis of the relevant factors. For example, in the original memorandum, the undersigned indicated that the defendant's motivation is called into question by his failure to communicate with the PTI investigator. Although that issue has been resolved, the defendant's explanation to the PTI investigator, as noted above, is in marked contrast with the statement he provided to Detective James Loizos of the Ocean Township Police Department on June 18, 2005. At that time, he stated that he saw the victim walking her dog and exposed himself. He specifically stated that, "I stood on the toilet so she could see me through the window but I didn't call her." He also acknowledged that he had been naked on a number of occasions, that he estimated to be fewer than 10 over a couple of years, by the back door in the kitchen of his home, and that on those occasions, he intended for the same victim to see him. It is also noteworthy that the defendant, in relating his explanation to the PTI investigator, referred to the victim only as his neighbor, not mentioning that this neighbor was 16 years old at the time of the offense. While the defendant has now spoken with the PTI investigator, his lack of candor continues to indicate that he both lacks motivation to comply with the criminal laws and that he lacks motivation to meaningfully participate in the PTI program.
The defendant also advised the PTI investigator that he has sought counseling. In his PTI appeal papers, counsel for the defendant submitted a letter indicating that the defendant attended nine counseling sessions from June to October, 2005, shows remorse for his actions, and is willing to continue counseling. While this participation in counseling arguably may impact on the defendant's amenability to change, this must be balanced against the fact that he previously was convicted of Lewdness on two occasions and previously served a probation term on one of those charges. Despite this fact, as is noted in the previous rejection memorandum, the defendant did not curtail his conduct, but rather escalated his conduct to an indictable crime, where the object of his crime is an underage girl. As such, it cannot be said with confidence that participation in this program will have an effect on the condition or situation which led to the defendant's crime.
The undersigned has re-examined the positive and negative factors involved [in] the defendant's application, including all those mentioned in the prior memorandum dated December 8, 2005, which is incorporated herein by reference. Upon this re-examination, the same conclusion is reached; the negative factors substantially outweigh the positive factors. It appears that the defendant and his offense are both inappropriate for diversion, and as such, the undersigned recommends that the defendant's application for participation in the PTI Program be rejected.
On March 24, 2006, the court again considered defendant's appeal from the denial of his application, noting that "when there is a decision to reject an applicant made by the prosecutor, the defendant must satisfy a heavy burden by demonstrating a patent and gross abuse of discretion in the decision-making process." The court reviewed the factors on which the State relied in its memoranda and concluded that defendant had not shown that the denial from PTI was arbitrary or an abuse of discretion. The court, therefore, denied defendant's appeal.
Thereafter, on March 27, 2006, pursuant to a negotiated plea agreement, defendant entered a plea of guilty to the single count contained in Indictment No. 05-09-2140, fourth degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He reserved his right to appeal the PTI rejection. Defendant acknowledged in the March 27, 2006, plea hearing that during the period of time between June 2003 and February 2005, he exposed his private parts on a number of occasions to the view of his teenage neighbor, who was between the ages of thirteen and sixteen. On May 19, 2006, in accordance with the plea agreement, the court imposed a non-custodial sentence of probation, with appropriate fines and penalties and required that defendant comply with the registration requirements of Megan's Law. The judgment of conviction memorializing the plea and sentence was filed on May 22, 2006.
In the lone point heading of his appellant's brief, defendant asserts:
THE TRIAL COURT ERRED WHEN IT AFFIRMED THE PROSECUTOR'S DENIAL OF SPIROPULOS' PTI APPLICATION AS IT WAS BASED ON INAPPROPRIATE FACTORS AND A FAILURE TO CONSIDER RELEVANT FACTORS.
In the brief, defendant argues, more specifically, that the prosecutor's rejection inappropriately considered defendant's prior municipal court convictions from 1984 to show a pattern of antisocial behavior and failed to consider that he had voluntarily sought counseling within twelve days of his arrest. Defendant also argues the prosecutor failed to consider the non- violent nature of his transgressions and his history as a productive member of society and a provider for his family. The State points out that the prosecutor did in fact take into consideration defendant's positive attributes: his work history, his prior service in the Greek army, the absence of any prior indictable convictions and his participation in nine counseling sessions between the date of the triggering offense and the return of the indictment by the grand jury. However, balancing those factors against the fact that defendant had already served a probationary term for a prior offense for lewdness and the fact that defendant had repeatedly re-offended over a two-year period by targeting an underage victim, the prosecutor lacked confidence that defendant's participation in PTI would have an effect on the condition that led to defendant's crime. See N.J.S.A. 2C:43-12(e)(6). As the prosecutor's memorandum of rejection also indicated, the prosecutor was of the opinion that defendant's two prior convictions for lewdness, though they were temporally distant, constituted part of a continuing pattern of antisocial behavior. See N.J.S.A. 2C:43-12(e)(8).
In State v. Negran, the Supreme Court noted that "courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "The deference has been categorized as 'enhanced' or 'extra' in nature." Negran, supra, 178 N.J. at 82. "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Accordingly, the court has stated:
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" before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent".
[Negran, supra, 178 N.J. at 82.]
In this case, defendant contends that the two 1984 lewdness convictions in municipal court were approximately twenty years earlier and, as such, they were too remote to be considered as part of a pattern of antisocial behavior. Indeed, in Negran, the Court held a twelve-year-old DWI conviction and a ten-year- old speeding conviction were too temporally remote to reasonably support the State's assertion of a pattern of antisocial behavior. Id. at 85. On the other hand, the State counters that prosecutors must act reasonably when citing to prior infractions to support a pattern of antisocial behavior and that it did so in this instance.
In a different context, considering whether a prior conviction may be admitted into evidence against a criminal defendant to attack his credibility, the Court said this about remoteness:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant.
[State v. Sands, 76 N.J. 127, 144-45 (1978).]
Here, the prosecutor concluded the probative value of the prior offenses was particularly high. Moreover, the prosecutor did not rely on the prior offenses solely to find a pattern of antisocial behavior, but also as probative of defendant's amenability to change through supervisory treatment. We note that even if the prior offenses were too remote and, therefore, should not have been considered, the nature of the current offense -- extending as it did over nearly a two- year period and involving multiple lewd exposures to an underage child -- was sufficient to constitute a pattern of antisocial behavior. This is especially true where defendant purposefully stood on the toilet so the victim could see him masturbating. The escalation from the apparently minor incidents of lewdness in 1984 to the incident that led to the arrest in 2005 support the prosecutor's conclusion that defendant's crime is related to a condition or situation that would not be conducive to change through participation in supervisory treatment through PTI. We have considered defendant's arguments in light of his heavy burden to show that the prosecutor's determination is a patent and gross abuse of discretion and in light of the enhanced deference to be shown by the court. Reviewing the prosecutor's decision against those high standards, the trial court properly declined to reconsider the rejection of defendant from the program, and we will not disturb the decision of the Law Division. There were sufficient contemporaneous circumstances and factors in the record to sustain prosecutor's decision.
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