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State v. D.B.


February 6, 2008


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 07-02-344.

Per curiam.


Submitted January 14, 2008

Before Judges S.L. Reisner and Baxter.

In this appeal, we review a June 28, 2007 order that admitted defendant D.B. into the Pretrial Intervention (PTI) Program over the objection of the Hudson County Prosecutor. While we agree with the judge's conclusion that the State improperly relied upon several inappropriate statutory factors and failed to consider some relevant facts, we disagree with her decision to order defendant into PTI. Instead, the judge should have remanded the matter so that the prosecutor could reassess defendant's eligibility in light of her ruling about those statutory factors. Accordingly, we reverse and remand.


In 2001, when he was twelve years old, defendant was charged with committing acts that would have constituted the first-degree crime of aggravated sexual assault if committed by an adult. In 2002, he was adjudicated delinquent on that charge and was sentenced to a three-year suspended sentence. As a result of that adjudication, he was required by Megan's Law, N.J.S.A. 2C:7-1 to -19, to register as a sex offender and notify police of any change of address.

Defendant immediately complied with that registration requirement by notifying local police in Middlesex County that he was residing with his father and he provided his father's address. At some point thereafter, defendant violated the terms of his probation and was ordered to enter and successfully complete the Bonnie Brae residential treatment program. As soon as he arrived at Bonnie Brae, defendant again registered with local police. In August of 2005, after he was discharged, defendant moved to his mother's apartment on Logan Avenue in Jersey City. Again, he promptly registered his new address with the Jersey City police department. Shortly after defendant moved in, his mother was evicted from her Jersey City apartment and forced to find a new place for herself and defendant to live. They moved to an apartment in Bayonne, and defendant promptly registered his new address with the Bayonne police department. The two lived in Bayonne from October 2005 through the spring of 2006. At that point, defendant was in his junior year in high school.

Before the school year ended, defendant's mother was evicted from her Bayonne apartment. She and defendant moved to Miami, Florida, but immediately after they arrived, defendant and his mother had a "falling out," the details of which are not contained in the record. As a result, defendant's mother bought him a bus ticket and sent him back to New Jersey by himself. At that point, he was seventeen years of age and a junior in high school. In July through November of 2006, defendant was homeless and lived mainly on the streets of New York City. It was during this period of homelessness that defendant was charged with committing Megan's Law violations in Jersey City and Bayonne for failing to notify those police departments of his change of address, in violation of N.J.S.A. 2C:7-2(d).*fn1

In late November or early December 2006, a Law Division judge's law clerk contacted defendant on his cell phone to advise him of a pending hearing on his Megan's Law tier classification, N.J.S.A. 2C:7-8. Defendant was aware that by failing to notify Jersey City police he had moved to Bayonne, and Bayonne police that he moved to Miami, he had violated his Megan's Law registration requirements and was subject to arrest.*fn2

Nonetheless, he promptly reported to that judge's courtroom for the tier classification hearing.

Upon his arrival in court, defendant was informed by court staff that there were outstanding charges pending for failing to register. Even though defendant was made aware that charges had indeed been filed, he remained in the courtroom to await the scheduled hearing. During the proceedings, he advised the judge that he was planning to live with his aunt in a different city and that he would be moving there shortly. In early December 2006, when defendant moved in with his aunt, he promptly registered his new address with that police department and returned to the judge with proof of his registration.

In February 2007, defendant was indicted for fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a)(count one), and fourth-degree failure to notify authorities of a change of address, N.J.S.A. 2C:7-2(d)(count two), arising out of the Bayonne charges. Later that month he was indicted on identical charges arising out of Jersey City.

Shortly after he was indicted, defendant applied for PTI. The Criminal Division Manager's Office reviewed his application and recommended that defendant be rejected. The April 27, 2007 rejection letter stated that defendant: failed to knowingly comply with the Megan's Law requirements. He stated to this officer that he couldn't register because he "would have had to give a park bench as his address." [Defendant] was aware that he was [obligated] to notify the municipality of his whereabouts, and chose to disregard that condition of Megan's Law. In addition, he has placed blame on his mother for moving around too much. . . . [He] also stated that his mother was moving to her cousin's house that only had one bedroom, and he would be forced to sleep in the hallway. [Defendant] then made the choice to be homeless, and non-compliant with the Megan's Law requirements. [Defendant's] cavalier attitude toward the Megan's Law requirements and his non-compliance with the laws of the State of New Jersey does not make him a good candidate for the PTI program.

An assistant prosecutor reviewed that recommendation and concurred with the decision to reject defendant from PTI.

On June 28, 2007, a hearing was held in the Law Division. In an oral opinion, the judge overruled the State's objection to PTI and admitted defendant into the program unconditionally. The judge reasoned:

I can't think of any more compelling case to admit someone into pretrial intervention program on these facts than [defendant]. He hasn't even been given a chance. He's basically thrown out into the world when he's 17, he had always been assisted with registration. He has no address to register, unless we can start registering park benches. He has no address to register, but he responded when called, and promptly registered as soon as some adult in his family was willing to take him in and give him a permanent home.

[I]f [defendant] cannot be admitted to PTI for failure to notify authorities of his relocation, then no one can be admitted on that offense. And if that's the case, then there is a blanket proscription which is not permissible by law. So, I think that the Prosecutor's Office has overlooked some key factors. . . . They overlooked or were not aware of or did not focus on that part of his juvenile status, the fact of his mother's evictions, the fact of him being moved to Florida and [coming] back [from] Florida, and the fact that he had barely turned 18 when he was charged with this offense. They did not consider the fact that when he was notified to come to court, even though he remained homeless he came to court. That as soon as he got an address he made his registration correct and up to date, and that he has continued to do so. All of these factors were overlooked by the prosecutor. Furthermore, having a blanket policy prohibiting admission into pretrial intervention is an abuse of discretion.

I cannot assume that all relevant factors were considered by the Prosecutor's Office, because the relevant factors strongly militate in favor of permitting him into PTI. In fact, it appears that he is basically being not permitted into PTI because of an offense committed as a juvenile when he was 12 years old. He's kept his record clean since then despite frequent moves, despite lack of parental supervision, and despite considerable hardship in terms of being homeless and basically parentless. So, he's not applying for PTI based on his earlier offense, he's applying based on this offense. He's only 18 years old, this is his first and only adult criminal involvement, he has not been involved in 6 years. That factor weighs strongly in favor of the defendant, he's had a difficult life. It doesn't need to be made more difficult by saddling him with a criminal conviction based on a . . . failure to make a full and fair consideration of his . . . situation. So, I am going to overrule the prosecutor's decision, and permit [defendant] into PTI.

The judge signed a confirming order on June 28, 2007, from which the State appealed.


A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Therefore, an appellate court reviews a trial judge's decision de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Ibid.

As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).

Thus, "judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, 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." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:

Ordinarily, an abuse of discretion will 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. [Bender, supra, 80 N.J. at 93 (citation omitted).]

With these principles in mind, we review the judge's decision to overturn the prosecutor's rejection of defendant from PTI. We agree with two of the judge's principal conclusions: (1) the facts in the record do not support the State's reliance on some of the statutory factors the State used to disqualify defendant, and therefore the State has relied upon some irrelevant or inappropriate factors; and (2) the State has ignored relevant facts about defendant's history and the circumstances surrounding the present offense. In such circumstances, the application for PTI should be remanded to the prosecutor for reconsideration. Bender, supra, 80 N.J. at 94. We now review each of the factors upon which the State has relied.

N.J.S.A. 2C:43-12(e) specifies the criteria a prosecutor must consider when reviewing a PTI application. The State's rejection of defendant was based upon a number of those statutory factors: "the nature of the offense," N.J.S.A. 2C:43-12(e)(1) (factor one); "the facts of the case," N.J.S.A. 2C:43-12(e)(2) (factor two); "the motivation and age of the defendant," N.J.S.A. 2C:43-12(e)(3) (factor three); "the existence of personal problems and character traits that may be related to the applicant's crime," N.J.S.A. 2C:43-12(e)(5) (factor five); "the needs and interests of the victim and society," N.J.S.A. 2C:43-12(e)(7) (factor seven); "the extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior," N.J.S.A. 2C:43-12(e)(8) (factor eight); whether the crime is of an assaultive or violent nature, N.J.S.A. 2C:43-12(e)(10) (factor ten); history of physical violence towards others, N.J.S.A. 2C:43-12(e)(12) (factor twelve); and whether the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17) (factor seventeen).

As to factor one, the "nature of the case," the State is permitted, in appropriate circumstances, to reject an applicant based solely on this factor. Leonardis II, supra, 73 N.J. at 382. It may only do so, however, if a 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 depreciate the seriousness of defendant's crime, the defendant's application should generally be rejected. [Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 3(i) (2008).]

Unquestionably, none of those four factors characterizes defendant's failure to register as a sex offender. Moreover, the State's reliance on factor one ignores defendant's homelessness, his young age and his decision to come to court even though he knew he faced arrest on the outstanding charges.

Although the State is entitled to consider factor one, State v. Caliguiri, 158 N.J. 28, 36-37 (1999), its analysis of that factor ignored other relevant facts.

As to factor two, "the facts of the case," the State contends that "[t]here has been nothing provided to the state which mitigates the actions by defendant." The State argues:

The totality of these facts and circumstances indicate that Defendant attempted to avoid his obligations with regard to Megan's Law. He has complied without incident for almost four years and knew his responsibilities. When he moved out of Jersey City to Bayonne, he chose not to inform the Jersey City or Bayonne authorities as required by Megan's Law.

Here, contrary to the State's assertion, there are many facts that "mitigate the actions of defendant." The facts do not support the State's conclusion that defendant failed to register in order to conceal his location. Although defendant failed to notify Jersey City of his relocation to Bayonne, defendant did properly register in Bayonne after he arrived. Moreover, defendant's violations occurred when he was a juvenile, at a time when his mother abdicated all responsibility as a mother. Rather than assist him, she kicked him out of the house, forcing him to live on the streets of New York. As such, he had no address to register. Finally, defendant demonstrated a strong willingness to comply with registration requirements by immediately appearing in court when summoned and registering promptly thereafter. Accordingly, the State has misapplied factor two.

As to factor three, "the motivation and age of defendant," although the State relies on this factor, none of its arguments actually address his motivation or his age, other than to reiterate its observation that defendant failed to comply with his registration obligations. We agree with defendant that factor three actually weighs in favor of PTI admission. As we have noted, defendant's failure to comply with his Megan's Law requirements was not motivated by an intent to conceal his location. Moreover, his young age at the time he failed to register is a factor in his favor. When defendant was indicted, he was barely eighteen years old. Additionally, he immediately registered after reporting to court, thereby evincing a strong motivation to conduct himself in a law-abiding manner. Thus, the State's reliance on factor three was error.

As to factor five, the "existence of personal problems and character traits that may be related to the applicant's crime," the State observes that "[t]he Criminal Division Manager notes that the Defendant has a violent criminal history as a juvenile into adulthood." The State then concludes that defendant "needs to be under more strenuous supervision other than that offered through PTI. His prior history and his failure to register as required by Megan's law demonstrate a personal disregard for authority."

The State's depiction of defendant's criminal history as violent is inaccurate. Although a person who is convicted of the crime of aggravated sexual assault has committed a violent crime, defendant was never convicted of such crime, but was instead adjudicated delinquent. Moreover, the State's reference to defendant committing a violent crime miscomprehends factor five. The statutory language of factor five focuses on the present crime for which PTI diversion is sought, not upon any past contact with the criminal justice system. Failure to register is not a violent crime. Also, the State's argument that defendant has a "violent criminal history as a juvenile into adulthood" misstates defendant's record. He was adjudicated delinquent at age twelve. To state that such record continues "into adulthood" implies that he committed additional violent offenses thereafter, which is not correct.

Finally, the State's reliance on factor five ignores the existence of "personal problems . . . which may be related to the applicant's crime." N.J.S.A. 2C:43-12(e)(5). The State fails to consider defendant's homelessness and his mother's abandonment of him when she put him on a bus and sent him to New York. In light of defendant's prior compliance with his registration requirements when his living arrangements and home life were stable, it stands to reason that defendant's "personal problems" had a distinct and palpable bearing on his commission of the present offense. Thus, factor five favors defendant, not the State, and the State should not have relied on this factor.

As to factor seven, the "needs and interests of the victim and society," the State argues:

[T]he citizens of the community which resided near or around Defendant's new address have the right to be informed that a sex offender was now residing in their midst. As a direct result of the Defendant's crime, law enforcement officials were stripped of the ability to properly execute their community functions as mandated by the Legislature, and the community was deprived of valuable knowledge.

We have no quarrel with the State's reliance on this factor.

The State's reliance on factor eight, whether the crime "constitutes part of a continuing pattern of anti-social behavior," is misplaced. While the Megan's Law offense defendant committed at age twelve is properly characterized as anti-social, the instant registration offenses are not. Nor has defendant committed any crimes between the offense he committed at age twelve and the current offenses. Consequently, the instant charges cannot be "part of a continuing pattern." Accordingly, the State improperly relied on factor eight.

Next is factor ten. Of all the factors the State relies on, its reliance on this factor represents the most pronounced instance of "consideration of . . . [an] inappropriate factor[]." Bender, supra, 80 N.J. at 93. The statutory language calls for an analysis of whether "the crime is of an assaultive or violent nature." N.J.S.A. 2C:43-12(e)(10). Unquestionably, the statutory reference to "the crime" signifies the crime for which PTI is sought. The State concedes that failing to register is not a violent offense. Ignoring the statute's focus on the present offense, the State asserts that it is entitled to "consider[] the fact that the original charge that placed defendant on Megan's Law was assaultive and violent in nature." We disagree and decline to distort the unambiguous language of factor ten. The State was not entitled to rely on factor ten.

As to factor twelve, "the history of the use of violence toward others," N.J.S.A. 2C:43-12(e)(12), we do not disagree that the aggravated sexual assault for which defendant was adjudicated delinquent qualifies as a "use of violence."

Finally, the State relies on factor seventeen, whether the benefits to society from admitting a defendant into PTI outweigh the harm that results to society from abandoning criminal prosecution. N.J.S.A. 2C:43-12(e)(17). The State argues:

Abandoning criminal prosecution against the defendant would harm society. Furthermore, society would in no way benefit from channeling this defendant into supervisory treatment. It is clear what type of harm this may pose to the community if this crime were not prosecuted. It would certainly undermine the function of Megan's Law and send a message to registrants that you can get a "second bite at the apple" if you do not comply with your registration and notification obligations. The violation of Megan's law is a serious offense and should be treated as such in order to preserve the principles behind its creation.

Analysis of this factor implicates a review of the purposes and goals of PTI. In Caliguiri, supra, 158 N.J. at 35, the Court explained the goals of PTI:

The Guidelines and the statute list the five goals of 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. This Court has also repeatedly emphasized the role of PTI in augmenting the criminal justice system and enhancing the prosecutor's options. [(citations omitted).]

The State's reliance on factor seventeen analyzes none of these potential benefits to society. Instead, the State focuses only on the harm to society if defendant is accepted into PTI, and points to the "message" that would be sent to Megan's Law registrants that they can get a "second bite at the apple if [they] do not comply with [their] registration and notification obligations."*fn3

The State's "second bite" argument, while not entirely lacking merit, ignores the requirement that the decision on a PTI application is "primarily individualistic in nature." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). The State failed to consider that defendant: registered at all times until he became homeless; for many months did not have an address because he was living on the streets; became homeless at age seventeen; reported to court even though he knew he faced arrest; and completed his registration requirements immediately thereafter. Those facts, had they been considered, would have had a bearing upon the factor seventeen analysis.

The State's characterization of defendant as someone who knowingly disregarded his Megan's Law obligations ignores these other facts in defendant's life history which, had they been considered, would have had a significant bearing on the benefits to society that PTI provides: offering early rehabilitation that deters future criminal conduct; providing a less burdensome disposition for those charged with "victimless crimes"; removing less serious criminal cases from the docket; and deterring future criminal conduct by PTI participants. Pressler, supra, Guideline 1 to R. 3:28.

While the State is entitled under factor seventeen to conclude that, on balance, the harm to society if defendant were accepted into PTI would outweigh any benefits, the State is only entitled to reach that conclusion after a full and fair analysis of all of the facts. It may not take such a skewed view of the facts that the societal benefits from diversion become eclipsed. See Bender, supra, 80 N.J. at 93. We thus conclude that the State's analysis of factor seventeen ignored relevant facts that must be considered upon remand.

Accordingly, we conclude that the State's objection to defendant's PTI application was "not premised upon a consideration of all relevant factors" and "was based upon a consideration of [some] irrelevant or inappropriate factors." Ibid. The Court has, however, observed that "[g]iven the primacy which our opinions attach to prosecutorial determinations, a court should ordinarily not order a defendant enrolled in PTI merely because it has concluded that the prosecutorial decision was based upon a consideration of inappropriate factors or not premised upon a consideration of all relevant factors." Id. at 94. Instead, "the proper disposition will usually be to remand the matter so that the prosecutor may reassess defendant's eligibility in light of the court's ruling." Ibid.

Accordingly, we agree with the judge's conclusions about the State's treatment of the statutory factors. We part company, however, with her decision to overturn the denial and order defendant admitted to PTI. We believe the proper course was to have instead remanded defendant's application to the prosecutor's office along with an order striking certain of the factors from consideration. See ibid. Therefore, we reverse the order admitting defendant to PTI and remand the matter so that the prosecutor may reassess defendant's eligibility in light of this opinion.

Reversed and remanded.

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