March 14, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC DELA LUZ-MARTINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-11-00443.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Axelrad and Messano.
Defendant Eric Dela Luz-Martinez appeals from the prosecutor's denial of his application for admission into the Pre-Trial Intervention Program (PTI) arguing the decision was the product of a patent and gross abuse of discretion. The salient facts are as follows.
On July 17, 2006, members of the Greenwich Township Police Department were called to the parking lot of the local Applebee's Restaurant on a complaint of damage to two vehicles. When police officer Sean McLaughlin arrived at about 2:18 a.m., he spoke to Brittany M. Murray, an employee of the restaurant.*fn1
She explained that when the restaurant closed near midnight, she and a co-worker friend were waiting in the parking lot for the arrival of two other friends. Murray noticed defendant's car at the back of the parking lot.
Defendant also worked at the restaurant and had been Murray's boyfriend for several months prior to their recent break-up. Murray and her friends left the parking lot in one vehicle and proceeded to another friend's home. When they returned to the restaurant at about 2:15 a.m., two of their vehicles had been vandalized. All four tires on each car were flattened and deep scratches had been carved in the paint of each vehicle. The total amount of damage to both automobiles exceeded $5000.
Later that day, defendant repeatedly attempted to call Murray on her cell phone. At 3:00 a.m., on July 18, while in the company of her friend, Murray answered the phone and placed the call on speakerphone. Defendant admitted that he damaged the two cars using a screwdriver and warned Murray that he did not know what he would do if he saw her again in the company of another man. Murray and her friend contacted the police who took sworn statements from both women regarding the conversation.
The police attempted to contact defendant through the restaurant, however they were unsuccessful. On July 20, 2006, Applebee's director of human resources contacted the police and advised them that defendant's social security number was not valid. On August 2, 2006, defendant voluntarily responded to police headquarters with his cousin. After being advised of his Miranda rights,*fn2 defendant admitted damaging the vehicles because he was angry that Murray had terminated their relationship and became jealous when he saw her in the company of a male friend. Defendant also admitted he was in the United States illegally, having paid an unknown individual to escort him "through a tunnel" from his native Mexico. Defendant's cousin told the police that he and defendant had purchased phony social security cards from an unidentified male in Easton, Pennsylvania. Defendant was arrested and charged with two counts of criminal mischief in the third degree, N.J.S.A. 2C:17-3(a)(1).
Defendant applied for admission into PTI but was rejected by the program director in a letter dated September 22, 2006. Her reasons for rejection were: 1) "[t]he crime . . . defendant [was] charged with constitute[d] part of a continuing pattern of antisocial behavior or the defendant ha[d] a record of criminal and penal violations and present[ed] a substantial danger to others. N.J.S.A. 2C:43-12e(8) . . . [and] (9)"; and 2) "[defendant] [was] in the United States illegally and committed a criminal offense show[ing] a continuing pattern of antisocial and criminal behavior, which demonstrate[d] that [defendant's] attitude [was] not amenable to the terms and conditions of the PTI program. N.J.S.A. 2C:43-12e(3,5,6,7,8,11,13,14, and 17)." The prosecutor concurred with the director's recommendation.
On September 26, 2006, defendant appealed the rejection to the Law Division, arguing that the prosecutor's decision was "the result of consideration of inappropriate factors; the product of a clear error in judgment; and/or a patent and gross abuse of discretion." On October 24, 2006, the prosecutor responded by a comprehensive letter brief that considered the seventeen statutory factors set forth in N.J.S.A. 2C:43-12e in light of the facts of the case and defendant's background.*fn3
In defendant's favor, the prosecutor noted that the offenses were minor, that neither victim objected to defendant's entrance into the program, that he had no prior criminal record, and that he had no involvement in any organized criminal activity.
However, the prosecutor also noted that several factors weighed against defendant's enrollment in PTI. For example, he noted 1) the significant damage caused to both vehicles; 2) that the victims and society "had a need and interest in curtailing  defendant's antisocial behavior"; and 3) that defendant acted in anger toward his former girlfriend and used a weapon to damage the cars.
As to several of the factors, however, the prosecutor noted that defendant's illegal entry into the country, and his utilization of further deceit to stay and work, negated any finding in his favor. For example, in considering factor (3), the prosecutor argued that while defendant was remorseful, he "demonstrated that he [was] not motivated to comply with the law[,]" because he "illegally entered the country and ha[d] used a fraudulent social security number to obtain employment." As to factors (5) and (6), the prosecutor noted that while defendant's anger toward his ex-girlfriend "may be susceptible to correction through supervisory treatment[,]" his "status as an illegal alien cannot be ameliorated through supervisory treatment." The prosecutor also concluded defendant's participation in a continuing pattern of antisocial behavior, factor (8), was demonstrated "by the facts of the present matter and his status as an illegal alien." As to factor (11), the prosecutor considered that prosecution would not exacerbate the social problems that led to defendant's conduct because "admitting  defendant, an illegal immigrant . . . would in fact condone  defendant's actions and illegal status." As to factor (14), the prosecutor determined that the public need for prosecution outweighed the value of supervisory treatment because "habitual offenders cannot go unpunished[.]" Noting defendant's use of a weapon, and his "use of a false social security number for an unknown period of time," the prosecutor concluded defendant engaged in "a continuing course of criminal conduct that should be addressed to the extent the law permits." Lastly, as to factor (17), the prosecutor argued the deferral of prosecution would "only condone  defendant's criminal actions and provide absolutely no form of deterrence," because "no supervisory treatment programs exist to address  defendant's illegal status."
In a brief oral decision issued after argument of defendant's motion, the judge concluded
[Defendant] is an illegal alien and every day he's in this country he's committing a federal crime.
There's no way that [PTI] can rehabilitate someone in that state. And the prosecutor has determined that there's no way that they are going to overlook this condition, that is [the] continuing criminal activity of this defendant in ignoring the laws of the United States.
As a corollary matter, the prosecution has made a determination that this was an act of retaliation and verged on violence . . . causing substantial damage because of a jealous rage . . . .
Finding "no clear abuse of discretion" by the State, the judge denied defendant's motion.
Thereafter, defendant pled guilty to an accusation that charged him with two counts of criminal mischief in the third degree. He was sentenced in accordance with the plea agreement to non-custodial probation for two years, restitution, and enrollment in an anger management program. This appeal ensued.
Defendant argues the prosecutor's denial of his application for admission to PTI was a "patent and gross abuse of discretion" premised solely upon his status as an illegal immigrant in this country. The State argues, as it did below, that defendant's rejection was the result of a proper exercise of prosecutorial discretion based upon the idiosyncratic facts of the case and the statutory factors, and not solely upon defendant's immigration status. In particular, the State contends defendant's crime was one of violence and involved the use of a weapon. We have considered these contentions in light of the record and applicable legal standards. We affirm.
We begin by recognizing the standards that inform our review of the issue. Prosecutors are permitted wide discretion in "deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State V. DeMarco, 107 N.J. 562, 566 (1987). As a result, the scope of our review is "severely limited" and "serves to check only the most egregious examples of injustice and unfairness." Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). In order for a defendant to overturn the prosecutor's denial of his admission, he 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." Ibid.
(citations omitted)(emphasis omitted). An abuse of discretion rises to the level of "patent and gross" when it clearly subverts the goals underlying the program. State v. Bender, 80 N.J. 84, 93 (1979).
Both parties have relied upon our decision in State v. Liviaz, 389 N.J. Super. 401 (App. Div.), certif. denied, 190 N.J. 392 (2007), which we decided after the judge's ruling in this case. We agree that our decision in Liviaz leads us to the correct resolution of this appeal.
In Liviaz, an opinion issued in two cases consolidated for purposes of appeal, we concluded "that PTI may not be denied solely because a defendant is an illegal alien." Id. at 403. However, we nevertheless overturned the Law Division's reversal of the prosecutor's rejection "because we [were] satisfied that it can be a relevant factor and that in each case the prosecutor reasonably took it into account in addition to other relevant factors, reaching conclusions that were well within his discretion." Ibid.
We noted that far from adopting a per se rule excluding the defendant David Liviaz from participation because of his illegal immigration status, the prosecutor demonstrated "substantial reasons for denial of PTI." Id. at 407. These included the defendant's lengthy illegal status in the country, "the particular crimes charged," which involved the use of false documents, "indicat[ing] a lack of honesty and persistence in violating the law," and "his disregard of court orders, as reflected by the issuance of two bench warrants for failure to appear in the proceedings." We concluded that together this demonstrated "a disdain for the law . . .; and that disdain further suggest[ed] that he [wa]s unlikely to comply with PTI reporting requirements." Ibid.
As to the second defendant in the appeal, Dennis J. ClarosBenitez, who was charged with "counterfeiting motor vehicle title papers, N.J.S.A. 2C:21-4.8(b)(3), and three counts of fourth degree possession of a false driver's license and government-issued identification documents, N.J.S.A. 2C:21-2.1(d)," ibid., we also determined that the prosecutor's rejection was not a per se denial based upon the defendant's illegal immigration status. Rather, we noted the rejection was based upon "the length of [the] defendant's illegal stay in this country," some five years, "his complete failure to attempt to gain legal status, his working 'under-the-table,' and his involvement in fraud and subterfuge to remain here." Id. at 407-08.
Defendant argues that his situation was unlike those presented by the defendants in Liviaz. He contends at the time of his arrest he was a hard-working, twenty-seven year old man, who, though "[o]vercome by natural feelings of jealousy," admitted his culpability, cooperated with police, and has made amends for his criminal transgressions. He notes that the conditions of his probation, specifically restitution and anger management counseling, were conditions that could have been imposed upon him through PTI, thus, demonstrating he lacked no amenability to the program's supervision and objectives. In short, defendant argues his rejection was based solely upon his illegal status.
Unfortunately for defendant, the issue is not whether certain facts can be cherry-picked in isolation to support an argument for admission. Nor, as the Supreme Court has noted, is the question "whether we agree or disagree with the prosecutor's decision[.]" Nwobu, supra, 139 N.J. at 254. Rather, fully cognizant of our standard of review, the issue is "whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Ibid. In this case, we cannot conclude defendant has carried his "heavy burden" and demonstrated a patent and gross abuse of prosecutorial discretion.
First, we note that unlike the defendants in Liviaz whose criminal charges arose directly from their illegal status, defendant here committed two acts of criminal mischief caused by an admitted jealous rage directed toward the acquaintances of his former girlfriend. While the State's description of the events as "violent crimes committed with a weapon" may be somewhat hyperbolic, it is clear that defendant's conduct violated the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to-35, and as such was "a serious crime against society." N.J.S.A. 2C:25-18. Although Murray did not seek the issuance of a domestic violence restraining order, "[a] prosecutor has the prerogative to view seriously matters of domestic violence, and apparently the prosecutor has chosen to do so in this case." State v. Wallace, 146 N.J. 576, 589-90 (1996)(internal citation omitted). Defendant's inability to curb his temper caused considerable property damage. His threat to Murray--that he did not know what he would do to her if he saw her again with another man--is conduct that, in the proper exercise of discretion, the prosecutor determined warranted criminal prosecution.
Secondly, defendant's description of his life in this country at the time of his arrest simply ignores all that preceded the actual events of the night in question. For example, it fails to acknowledge defendant's decision to illegally enter the United States by paying someone to escort him through a tunnel from Mexico. Although it appears from the pre-sentence report that defendant claimed he had been in the United States for only one year, it is undisputed that during that time he continued to use deceit and subterfuge to avoid detection. The social security card he furnished his employer was fraudulent, and, according to his cousin, it was purchased from an unidentified individual in Easton, Pennsylvania.
In short, we conclude that the prosecutor's decision did not result from a per se denial of defendant's application based solely upon his immigration status. Instead, it was a decision that was "'primarily individualistic in nature'" and gave adequate consideration to "defendant's features [bearing] on his . . . amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).