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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...