January 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN SKELLY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-00995.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges A.A. Rodríguez and C.S. Fisher.
In this appeal, we review the trial judge's determination that the prosecutor did not abuse his discretion in barring defendant's admission into the pretrial intervention program (PTI). We agree with the trial judge that the prosecutor acted fully within his discretion in light of the nature of the weapons charges asserted against defendant.
The record reveals that defendant was indicted on: three counts of fourth-degree acquisition of a handgun without a permit to purchase or license to procure, N.J.S.A. 2C:39-10(a) (counts one, four and sixteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); two counts of fourth-degree unlawful sale of a firearm, N.J.S.A. 2C:39-9(d) (counts three and twenty); two counts of third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (counts five and seventeen); two counts of third-degree unlawful sale of an assault firearm, N.J.S.A. 2C:39-9(g) (counts six and eighteen); four counts of fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(j) (counts seven, eight, nine and ten); four counts of fourth-degree unlawful sale of a large capacity ammunition magazine, N.J.S.A. 2C:39-9(h) (counts eleven, twelve, thirteen and fourteen); fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f) (count fifteen); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count nineteen).
Defendant applied for admission to PTI. Because the application required the consent of the prosecutor, defendant was denied admission. Defendant appealed his exclusion from PTI, and, at the same time, pled guilty to counts two, three, five, six, seventeen and eighteen. For reasons set forth in an oral decision, Judge Patricia Del Bueno Cleary denied defendant's appeal of his rejection from PTI. She later sentenced defendant to concurrent five-year probationary terms on counts two, five, six, seventeen and eighteen, and a concurrent three-year probationary term on count three. Defendant was ordered to complete 100 hours of community service and appropriate fines, penalties and fees were also assessed. The remaining counts of the indictment were dismissed.
Defendant appealed, raising the following arguments for our consideration:
I. THE STATE'S BRIEF BELOW PREJUDICIALLY MISCHARACTERIZED THE CHARGES AGAINST MR. SKELLY.
II. THE COURT BELOW ERRED BY UPHOLDING THE STATE'S POSITION THAT, BECAUSE THE SALE CONCERNED AN "ASSAULT FIREARM," MR. SKELLY IS PRESUMPTIVELY "FORECLOSED" ADMISSION INTO PTI.
We find insufficient merit in these arguments to warrant extensive discussion in a written opinion, R. 2:11-3(e)(2), and affirm. We add only the following comments.
PTI is a "discretionary program designed to 'augment the options of prosecutors in disposing of criminal matters,' and to provide applicants 'with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'" State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)). The prosecutor has "wide latitude" in deciding whether to permit diversion into PTI, State v. Nwobu, 139 N.J. 236, 246 (1995), and the prosecutor's decision is "subject to reversal only when it represents a 'patent and gross abuse of discretion' or a clear error in judgment," Motley, supra, 369 N.J. Super. at 320 (quoting State v. Leonardis II, 73 N.J. 360, 382 (1977)).
What constitutes an abuse of discretion in this context has been defined in the following way:
Ordinarily, an abuse of discretion would be manifest if defendant can show that a prosecutorial veto (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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [State v. Bender, 80 N.J. 84, 93 (1979).]
Judge Cleary applied these standards in correctly concluding that the prosecutor's objection to defendant's admission into PTI did not constitute an abuse of discretion.
In her oral decision, Judge Cleary observed that defendant had been charged with selling weapons to an undercover detective. On the first occasion, the detective met defendant at an auto repair shop, following which defendant took the detective to a nearby van parked within ten feet of a day care center. While in the van, defendant sold to the detective a Charter Arms Bulldog Pug .44 revolver for $230. The detective observed during this transaction that defendant possessed "a shoulder holster with a magazine pouch and a box of Remington ammunition containing 23 rounds inside of a box." At that time, defendant also told the detective that he had a TEC 9 assault firearm, which had an extended magazine clip and a silencer. He also inquired whether the detective was interested in other weapons.
On a later occasion, the detective met with defendant to purchase the TEC 9 assault weapon for $600. Again the transaction occurred in the van. Defendant showed the detective the weapon, along with four large capacity magazines, one extension barrel, and hollow point ammunition. They spoke about other weapons defendant had for sale. Following the sale of the TEC 9 assault weapon, they went to the rear of the auto shop where the detective observed a cabinet used to store weapons.
The detective met with defendant on other occasions. At those times, defendant indicated he did not have weapons in his possession but that he was trying to obtain some from a source in Pennsylvania or Florida. On yet another occasion, the detective met with defendant and purchased a Franchie-Spas 12 gauge assault firearm and a SKS semi-automatic weapon for $850. Defendant was later arrested and charged with various offenses based upon the conduct described above.
These circumstances overwhelming demonstrate that defendant was engaged in a trade that was contrary to the interests of society. He sold a number of weapons, including an assault weapon, from out-of-State sources and within feet of a day care center. The prosecutor clearly did not abuse his discretion in rejecting defendant's PTI application. Instead, the prosecutor acted well within the interests of society in further pursuing the prosecution of defendant.
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