On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-05-1966.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges R. B. Coleman and Lyons.
Defendant Angel A. Estevez appeals from an order which denied his appeal of the Camden County Prosecutor and the Pre- Trial Intervention Coordinator's decision to deny him admission into the Camden Pre-Trial Intervention (PTI) program. We affirm. The relevant facts and procedural history are as follows.
On April 2, 2006, at approximately 3:15 a.m. in Camden, Officer Jose Rodriguez observed defendant passing vehicles on North 29th Street and River Road. Defendant was traveling at forty-eight miles per hour in a twenty-five-mile-per-hour zone. Officer Rodriguez activated his lights and siren, but defendant disregarded the signal to stop and continued. Defendant then made a right turn on North 27th Street and a left turn on Wayne Street. Defendant, at that time, turned off all of his vehicle lights. He then proceeded to make a left turn, the wrong way, on a one-way street. Eventually, he was apprehended, arrested, and charged with second-degree resisting arrest, eluding an officer in violation of N.J.S.A. 2C:29-2(b). Defendant was also issued various summonses, including charges for speeding, improper passing, driving the wrong way on a one-way street, failure to keep headlights on, and underage drinking. On April 25, 2006, defendant's counsel wrote to the assistant prosecutor requesting the State consider downgrading the second-degree eluding charge, or alternatively, consenting to defendant's application for admission into PTI. On May 1, 2006, the prosecutor advised defendant's counsel, by letter, that the office would not downgrade the charge or consent to admission into PTI. On May 30, 2006, defendant was indicted and charged with one count of second-degree resisting arrest/eluding in violation of N.J.S.A. 2C:29-2(b). On June 30, 2006, defendant's counsel submitted defendant's application for PTI to the Camden County PTI Coordinator (the Coordinator).
By letter of July 21, 2006, the Coordinator advised defendant's counsel that defendant's application for PTI was being denied pursuant to Guideline 3(i) of Rule 3:28 because defendant had been charged with a second-degree crime and had failed to submit proof that the prosecutor had joined in the application. Further, the Coordinator cited N.J.S.A. 2C:43- 12(e)(10), which requires consideration of whether the subject crime is one which had possible injurious consequences. The Coordinator concluded that defendant's behavior could have possible injurious consequences, given the fact that he was speeding, improperly passing, driving down a one-way street the wrong way without headlights in a residential area, and ignoring police direction to stop. In addition, the Coordinator cited N.J.S.A. 2C:43-12(e)(1), (2), (7), and (14) which require consideration of the nature of the offense, the facts of the case, the needs and interests of the victim and society, and whether the crime is of such a nature that the value of supervised treatment would be outweighed by the public need for prosecution.
Defendant filed a timely appeal from the Coordinator's decision. On October 13, 2006, Judge Thomas A. Brown, Jr. heard argument on defendant's appeal from the denial of his PTI application. Defendant argued that there were compelling reasons that were highly unusual and idiosyncratic which warranted defendant's admission into PTI. Defendant's counsel pointed out that defendant was twenty years old, was a full-time student who worked twenty-five hours a week at a printing business, and was now volunteering at a local church. Counsel stressed that defendant had no prior contact with the criminal justice system in either the United States or the Dominican Republic from which he immigrated and that he is appropriately in the country on a "green card." Defense counsel further argued that not all relevant factors were considered and that the decision was based on irrelevant or inappropriate factors that constituted a clear error in judgment.
The prosecutor's office argued that the nature of the offense was one that could have seriously injured members of the public and that defendant was charged with a second-degree offense rendering his case presumptively ineligible for PTI consideration without the joint application of defendant and the prosecutor. Further, the prosecutor argued that the facts were not so unusual or idiosyncratic as to warrant admission despite defendant's presumptive ineligibility under Guideline 3(i). The trial court, in a thorough and well-reasoned opinion, reviewed the factual background, as well as the arguments of counsel. The court concluded,
The standards for review in this matter are well-established. Generally, a prosecutor has great discretion in selecting whom to prosecute and whom to divert to PTI, State v. Wallace, 146 N.J. 576, 582 (1996). However, if a defendant can clearly and convincingly show that the prosecutor's refusal for PTI admission was based on a patent and gross abuse of discretion, the reviewing court may overrule the prosecutor and admit the defendant to PTI. Id. See also State v. Nwobu, 139 N.J. 236, 239 (1995).
Now a patent and gross abuse of discretion is a prosecutorial decision that "'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 583 (quoting State v. Ridgeway, 208 N.J. Super. 118, 130, (Law Div. 1985)).
In State v. Bender, 80 N.J. 84, 93 (1979), the Court stated that an abuse of discretion may be indicated if the defendant can show: a) not all relevant factors were considered; b) that irrelevant or inappropriate factors were considered; or c) there was a clear error in judgment. There is a clear error of judgment when the rejection is based on appropriate factors and rationally explained but is contrary to the predominate view of other[s] responsible for the administration of criminal justice. State v. Baynes, 148 N.J. 434, 444 (1997).
To rise to the level of patent and gross abuse, the defendant must further show that the prosecutorial error will clearly subvert the underlying goal of PTI. Bender, supra, 80 N.J. at 93. Given the deference, according to the prosecutor, the Wallace court noted that a prosecutor's decision to reject the PTI applicant rarely will be overturned. Wallace, supra, 146 N.J. at 585.
Generally, any defendant charged with a crime is eligible for enrollment in PTI, but where the crime was deliberately committed with violence or threat of violence against another person, the defendant's application should generally be rejected. Guideline 3(i)(3) to Rule 3:28. Now, under such circumstances, the defendant may present facts and materials demonstrating immediate ability to rehabilitation, showing compelling ...