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State v. Torre


February 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 07-02-363.

Per curiam.


Argued January 22, 2008

Before Judges Lintner and Parrillo.

After waiving indictment, defendant, Dennis Torre, pled not guilty to Accusation No. 07-02-363 charging him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Although the Pretrial Intervention Program (PTI) Supervisor recommended defendant as an appropriate candidate for admission to PTI, the Monmouth County Prosecutor rejected defendant's application. Defendant appealed the rejection and the Law Division judge, over the State's objection, admitted him into the program. The State appeals and we reverse.

The facts surrounding the offense are somewhat disputed. According to the victim, Jeremiah Rice,*fn1 he and a few friends went to a tavern known as "Red's," when he was approached on the second floor by defendant, who accused Rice of being gay. Rice responded that he was not gay and that defendant should "vacate the area." According to Rice, defendant got agitated and asked Rice "what [he] was . . . going to do about it." Rice pointed at defendant and replied "that's enough, outside." He then proceeded downstairs toward the exit, not knowing whether defendant was behind him. As Rice reached the area of the front door, he pushed it open and felt something hit him across the left side of his face. He looked down and realized that he had been hit by a bottle and that his hands and shirt were covered with blood. He was treated at the hospital for two cuts to his left cheek, which required eight stitches. He also had follow-up treatment at a plastic surgery center.

Patrolman David Hicks of the Red Bank Police Department responded to the scene along with Patrolman Patrick Kennedy where they were advised by two employees of Red's who witnessed defendant "smash a glass bottle in the face of a patron[] inside the bar." Both employees, as well as a friend of Rice's, pursued defendant on foot, meeting up with him at an intersection. At the scene, defendant told Hicks that "he was in fear of two subjects that approached him inside the bar[] and felt they were going to 'jump him.'"

A private detective interviewed three friends and fellow employees of defendant who went to Red's with defendant the night of the incident. Although they did not witness the incident, they explained that they were told by a bouncer at Red's that the fight occurred outside the tavern. Defendant's friends saw broken glass on the sidewalk outside the bar.

In defendant's brief submitted to the Law Division, the following version of the incident was attributed to defendant:

[Defendant] has maintained that once they were outside of the bar, Mr. Rice swung at him first. [Defendant] is right handed, and defended himself against Mr. Rice's attack by swinging his right hand. [Defendant] was unaware that he still had the glass in his right hand, and consequently struck Mr. Rice with the glass. [Defendant] did not intend to hit Mr. Rice in the face with the glass, but intended only to ward off Mr. Rice's blow which was directed at him.

The PTI Supervisor reiterated the facts revealed by Rice and investigating Patrolman Hicks. He also interviewed defendant who provided the following relevant version:

[Defendant] said that the victim started talking to him and his friends. He stated that he asked the victim jokingly, "are you buying the next drink." The defendant stated that victim called him "gay" and a "faggot" and that he (defendant) disgusts him. The defendant stated that he tried to tell the victim that he was joking. He said that the victim told girls at the bar that he (defendant) is gay. He stated that the victim told him that he was going to kick his ass outside. The defendant said that he went outside and the victim was outside with a friend. The defendant stated that he had a glass in his hand. He stated that the victim went toward him with closed fists, so he swung at the victim and hit the [victim] in the face with the glass. The defendant stated that he walked away and the victim's friend followed him. He said that the police came and he was arrested.

Recommending defendant's acceptance into the PTI program, the supervisor noted:

The defendant is a 37 year old male, father of two children . . . has been gainfully employed as a manager for Meridian Healthcare Systems for fifteen years . . . reported having mental issues*fn2 which he has been addressing for the past ten years . . . lacks a prior record and has been a law abiding citizen until the present incident occurred . . . [and] appeared motivated to comply with the conditions of PTI . . . appeared remorseful . . . and . . . eager to put this incident behind him. . . . Should the defendant be afforded PTI, it is likely that his behavior will be conducive to change.

Based on the above reasons, the PTI Supervisor concluded that "defendant should be given a chance to prove himself through the PTI Program."

Denying the Supervisor's recommendation, the State acknowledged defendant's favorable personal, work, and medical background. The State noted the facts provided in the police report, including the victim's statement and opposition to defendant's enrollment, and reasoned that (1) the facts "show that the victim was . . . minding his own business . . . defendant came up and began to taunt him . . . would not leave the victim alone [and] . . . attacked the victim with a glass causing the victim to suffer injury;" (2) the victim was "adamantly opposed" to defendant's acceptance into PTI, N.J.S.A. 2C:43-12e(4); (3) striking the victim with a glass was assaultive or violent, causing injurious consequences, N.J.S.A. 2C:43-12e(10); and (4) under Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 (2008), where a crime is "committed with violence or threat of violence . . . [a] defendant's application should generally be rejected". The State concluded that although it "considered the positive factors in . . . defendant's application . . . the negative factors significantly outweigh the positive, making [defendant] an inappropriate candidate for PTI." See Pressler, supra, Guidelines 3(i).

At oral argument in the Law Division, defendant argued the facts related in defendant's brief concerning the circumstances of the incident. Defendant maintained that because he was right-handed it would have been impossible for him to strike the victim on the left side of the face from a position behind the victim while descending the steps; glass was found outside, thus the incident did not occur inside the tavern; and the victim's and tavern employees' accounts were not accurate. Defendant also argued that the facts established that he acted in self-defense.

Because the State relied on facts provided to the police by the victim and the tavern employees as a basis for its rejection, the judge reasoned that it was necessary for him to "delve into the facts." The judge then set forth defendant's purported version as well as the statements made by defendant and his fellow employees and concluded that the prosecutor's omission of those witnesses' factual accounts constituted an abuse of discretion. Accepting the defendant's version that he did not act deliberately with violence, the judge found that Guideline 3(i) did not apply because it is not a "bar to any defendant who acts in self defense because violence or the threat of violence is inherent in every self-defense case." Although the judge found that the prosecutor was justified in asserting the victim's opposition to defendant's entry into PTI, he concluded that it did not overcome the prosecutor's inappropriate reliance on the facts of the case and Guideline 3(i) when consideration is given to defendant's positive employment history and lack of a criminal record.

On appeal, the State contends that it considered all the relevant factors and the judge erred in determining that it patently and grossly abused its discretion in rejecting defendant's PTI application. It argues that the judge mistakenly considered the weight of the State's case rather than criteria for determining eligibility for PTI. It further maintains that although it had the statements given by defendant's fellow employees, their statements were not relevant to the inquiry because they did not witness the altercation.

Defendant counters, asserting that the prosecutor relied solely on the nature of the offense rather than "balancing between the needs of society and the benefits of a treatment program . . . for a man such as [defendant], who is both willing and amenable to undertaking the mandates of the PTI program." He asserts that the judge correctly recognized that the prosecutor erred in failing to consider the facts asserted by defendant and the three witnesses who accompanied him to the tavern.

The applicable principles are well settled. PTI is a discretionary means of "diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999) (citing N.J.S.A. 2C:43-12a(1); Pressler, supra, Guidelines 1(a) (1999)). Both the Guidelines and the statute prescribe five goals respecting the PTI program:

(1) providing offenders with early rehabilitation, if that service will deter future criminal conduct; (2) offering an alternative to offenders who would be harmed by traditional prosecution; (3) providing a less burdensome prosecution for offenders charged with "victimless" offenses; (4) assisting prosecutors in pursuing serious criminal matters by removing less serious cases from the criminal calendar; and (5) deterring future criminal conduct by PTI participants. [Ibid. (citing N.J.S.A. 2C:43-12a(1)-(5); Pressler, supra, Guidelines 1(a)-(e)).]

Although any defendant charged with a crime is eligible for PTI, the Guidelines and the statute provide specific criteria for the prosecutor and criminal manager to consider when reviewing a PTI application. Id. at 36 (citing N.J.S.A. 2C:43-12e(1)-(17); Pressler, supra, Guidelines 2 and 3). Those criteria include "the nature of the offense, the circumstances of the crime, the motivation and age of the defendant, and the needs and interests of the victim and society." Ibid. (citing N.J.S.A. 2C:43-12e(1)-(3), (7); Pressler, supra, Guidelines 3). Guideline 2 provides that "[e]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur."

In the appropriate circumstances, a prosecutor may reject an applicant solely because of the nature of the offense. Caliguiri, supra, 158 N.J. at 36 (citing State v. Leonardis, 73 N.J. 360, 382 (1977)). This appropriate circumstance limitation is addressed by Guideline 3(i), which provides that applications "should generally be rejected" when the crime is:

(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime . . . [or] a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . . [Pressler, supra, Guidelines 3(i).]

It is, therefore, appropriate to reject PTI based solely upon the nature of the offense where the Guidelines express a presumption against PTI. State v. Baynes, 148 N.J. 434, 445-47 (1997). A crime implicates Guideline 3(i) if it embraces "the public's concern regarding the threat of personal safety." Id. at 446. Judicial review and intervention is permitted because the decision to divert "is analogous to the prosecutor's charging function," thus involving "the implicit exercise of judicial power." Caliguiri, supra, 158 N.J. at 37 (citing State v. Nwobu, 139 N.J. 236, 245 (1995)). However, the power to judicially review a prosecutor's decision respecting diversion is tightly circumscribed. Ibid. (citing State v. DeMarco, 107 N.J. 562, 566 (1987)). In order to overturn a prosecutor's decision, there must be a judicial finding that "the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 584 (1996)).

In determining the appropriate factors, "the PTI process is not designed to assess the weight of the State's case. '[T]he appropriate administration of the program militates against basing enrollment upon the weight of the evidence of guilt.'"

Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J. 143, 147 (1983)) (alteration in original). In our view, the judge mistakenly assessed the weight of the State's case by considering defendant's and his fellow employees' controverted version that the incident occurred outside the tavern, rather than the relevant and appropriate reasons urged by the State for denying PTI. Similarly, the judge inappropriately rejected the State's reliance on Guideline 3(i) by essentially accepting defendant's disputed claim that he acted in self-defense. See DeMarco, supra, 107 N.J. at 568 (recognizing that a court need not decide the controverted factual issue between the victim's account supporting the offense charged and the defendant police officer's contention that his use of his night stick on the victim was justified, noting the victim's version on which the charge was based, "if proven, is violent," qualifying under Guideline 3(i)).

Contrary to defendant's contention, the State considered all the relevant factors in rejecting defendant's PTI application. The prosecutor reviewed the positive factors relating to defendant's lack of a criminal record, his favorable personal and work history, and medical problems, but concluded that they were outweighed by the negative factors, i.e., the violent nature of the offense, its injurious consequences, and the victim's objection to foregoing prosecution. We are satisfied, under the circumstances, that the State's decision to reject defendant's PTI application did not represent a clear error in judgment. Accordingly, the Order of June 15, 2007, admitting defendant into PTI is vacated.


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