March 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JUNIOR MONTERO-ROBLES, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Criminal Division, Middlesex County, Indictment No. 06-08-0093S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Payne and Messano.
The State of New Jersey appeals from the Law Division judge's order that granted defendant Junior Montero-Robles' appeal from the prosecutor's rejection of his application for admission to the Pre-Trial Intervention Program (PTI). The salient facts and procedural history are as follows.
Defendant was born on March 10, 1971 in the Dominican Republic and illegally entered the United States on December 24, 1994.*fn1 On April 9, 2003, defendant visited the Perth Amboy post office and completed a passport application using the alias Miguel Antonio Reyes-Arroyo. Along with the application, he provided a New Jersey state identification card as proof of identity and a Puerto Rican birth certificate, declaring January 10, 1966 as his date of birth, as proof of citizenship.
Because the application contained a number of "fraud indicators," the Bureau of Diplomatic Security of the United States Department of State initiated an investigation. One of the Bureau's agents eventually located a criminal history record for defendant's alias in Massachusetts, and was supplied by local police with an arrest photo and fingerprints for Miguel Antonio Reyes-Arroyo. That photo did not match the photo attached to defendant's passport application.
On November 20, 2003, the Bureau's agents found defendant at his place of employment, the Tropical Cheese factory in Perth Amboy. Defendant admitted that he was in fact Junior MonteroRobles, supplied his true date and place of birth, and completed a handwritten statement confessing to having used a false birth certificate to apply for the passport. Defendant also stated that he obtained the document from someone who was "well known" in Massachusetts for the ability to create false documents, but that he did not know this individual's last name or address.*fn2
On August 16, 2006, the State grand jury returned Indictment No. SGJ 528-06-09 charging defendant with third degree tampering with public records or information, N.J.S.A. 2C:28-7(a)(2); third degree uttering a forged document, N.J.S.A. 2C:21-1(a)(3); and fourth degree false swearing, N.J.S.A. 2C:28-2(a).
On December 8, 2006, defendant applied for admission to PTI but was rejected by the Criminal Division Manager, who found
[D]efendant would not be benefited by supervisory treatment--his crime is related to a condition or situation that likely could not be corrected through supervisory treatment. N.J.S.A. 2C:43-12e6); see also N.J.S.A. 2C:43-12e(5).
Although the def[endant] is a first offender, based on the nature of the charge and present concerns for national security, this case is not being recommended for PTI; we are instead recommending that this case be handled via the traditional court process.
By letter to defense counsel dated January 11, 2007, the deputy attorney general prosecuting the case agreed with the program director and rejected defendant's PTI application. In his letter, the prosecutor reviewed the nature and facts underlying the offense:
This case involves document fraud proffered in connection with an attempt to obtain a United States Passport to which the defendant was not entitled. In his attempt to obtain the passport, he presented two fraudulent documents . . . in the form of a New Jersey Driver's License issued by the Motor Vehicle Commission and a Puerto Rican birth certificate, each in the name of Miguel Antonio Reyes Arroyo. The defendant admitted to agents of the United States Department of State that he entered this country illegally. He has been illegally living in this country since that time. The defendant admitted that he paid $175 in Massachusetts in 1992 for the fictitious Puerto Rican birth certificate that he presented in support of his passport application. The defendant then applied for a New Jersey Identification Only driver's license using the same false pedigree information contained in the birth certificate. Ultimately, the defendant utilized these two false documents to apply for the passport. His clear purpose in obtaining all of this identification was to give the appearance that he was legally present in the United States.
The prosecutor then outlined five reasons supporting rejection of defendant's application: 1) the serious nature of the offense; 2) the offense was not victimless; 3) defendant's crimes were part of a continuing course of criminal conduct; 4) defendant's crimes were part of a continuing pattern of antisocial behavior; and 5) defendant's crimes resulted from a condition, his illegal immigration status, that could not be addressed through supervisory treatment and his offenses did not arise from personal problems or character traits that would be better addressed through supervisory treatment.
The prosecutor also considered and weighed those factors that supported defendant's application. He noted the lack of any prior criminal history, the non-violent aspect of the crimes, and defendant's continuous employment while residing in New Jersey. He also noted that defendant's employer attempted to file paperwork with Immigration and Customs Enforcement that would have allowed defendant to "remain in the country and continue working," however, that petition was denied and defendant was now subject to removal proceedings.
Defendant appealed the rejection of his PTI application and argued, among other things, that he was still pursuing through his employer an application with the immigration authorities that would allow him to stay and work in this country. The State argued that defendant had "no status with immigration" and otherwise relied upon the reasons advanced in its letter of rejection.
The Law Division judge characterized the prosecutor's rejection as being based "[up]on the grounds primarily that  defendant's unlawful presence in the United States constitutes a continuing pattern of illegal behavior when coupled with his illegal attempt to obtain a passport." In rejecting the State's argument, the judge concluded:
I'm not suggesting that the defendant's conduct satisfies any lawful status in the United States but I don't believe it is fair to say that [defendant] has intentionally engaged in a pattern of unlawful or illegal activity when he entered the United States as a teenager, got gainfully employed, attempted to legalize his status and is still attempting to do so.*fn3 I don't think it's fair to characterize him as one who's engaged in continuing illegal activity.
I do not see any strong governmental or societal interest in prosecuting this defendant for this single isolated act of attempting to fraudulently obtain a U.S. passport under the circumstances that he did so, so in this case I do conclude that the Attorney General did commit a clear error of judgment; that there was a patent and gross abuse of discretion; that the Attorney General failed to consider all the personal factors relating to this defendant that do very strongly suggest that he is amenable to rehabilitation and that he is indeed attempting rehabilitation as we speak by trying to legalize his status in the United States by reporting to immigration as instructed and by working gainfully for an employer who supports his presence in the United States. In this case although I understand that the Attorney General is entitled to some deference I do believe that denial of the application would undermine the goals of pretrial intervention. Therefore, I do order that this defendant be allowed to enroll in pretrial intervention.
The judge granted the State's request to stay the order and this appeal ensued.
The State contends that it considered defendant's background and all relevant factors in evaluating the application and, as a result, its decision was entitled to significant deference by the judge. Instead, it argues that the judge "substituted [his] judgment for that of the prosecutor and improperly granted defendant entry into  PTI ." The State further contends that since defendant failed to meet his burden of establishing the decision was the result of a patent and gross abuse of discretion, the rejection of defendant's application should have been upheld by the judge.
We have reviewed these contentions in light of the record and applicable legal standards. We agree that defendant failed to demonstrate that the prosecutor's rejection of his application for admission to PTI was the result of a patent and gross abuse of prosecutorial discretion. We therefore reverse.
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)(citation omitted). 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 . . . was based on a patent and gross abuse of his discretion." Ibid. (citations omitted)(emphasis omitted).
A defendant can demonstrate an abuse of discretion if he 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." State v. Bender, 80 N.J. 84, 93 (1979)(citation omitted). Such an abuse of discretion "rise[s] to the level of 'patent and gross'" whenever it "clearly subvert[s] the goals underlying [PTI]." Ibid.
In reaching his decision, the trial judge concluded that the prosecutor's "analysis  constitute[d] a clear error in judgment," and "failed to consider all the personal factors" relating to defendant. Turning first to this latter reason, the "personal factors" cited by the judge as having been omitted from the prosecutor's consideration included the "very strong suggest[ion] that [defendant] is amenable to rehabilitation" as evidenced by his attempt to "legalize his status in the United States by reporting to immigration as instructed and by working gainfully for an employer who supports his presence in the United States."
First, we note that absent evidence to the contrary, it is presumed that the prosecutor considered all relevant factors in making the decision. State v. Wallace, 146 N.J. 576, 584 (1996). More importantly, here the prosecutor in fact considered the exact factors cited by the judge as having been omitted during the State's review. The prosecutor specifically noted defendant's employment and attempts by his employer, both past and current, to legalize his status. Thus, we find no support for the judge's conclusion that the prosecutor failed to consider defendant's personal factors. Instead, the prosecutor's review was "'primarily individualistic in nature'" and gave adequate consideration to "defendant's features [bearing] on his . . . amenability to rehabilitation." Nwubo, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).
In actuality, it would appear that the judge simply disagreed with the weight the prosecutor accorded to the factors under consideration. We have held that the judge has no authority to reweigh the factors de novo, and "substitute [his] own discretion for that of the prosecutor" even if the prosecutor's decision was harsh. Kraft, supra, 265 N.J. Super. at 112-13 (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980)) (internal quotations omitted); see also Wallace, supra, 146 N.J. at 589 (holding that the judge must focus upon whether the prosecutor's decision was arbitrary or irrational and not "stand in the shoes of the prosecutor").
Nonetheless, the Supreme Court has noted that judicial intervention is warranted even if "all relevant factors and no inappropriate factors are in the mix," if "the prosecutor has so inappropriately weighted the various considerations so as to constitute a 'clear error in judgment.'" Wallace, supra, 146 N.J. at 586. Since the judge did characterize the prosecutor's denial in this case as a clear error in judgment, we consider whether it was.
In State v. Liviaz, 389 N.J. Super. 401 (App. Div.), certif. denied, 190 N.J. 392 (2007), 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 . . . 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." Ibid. 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. Id. at 408. 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." Liviaz, supra, 389 N.J. Super. at 408.
We acknowledge that in this case, some of the facts we cited in Liviaz do not exist. For example, defendant has not been the subject of any warrants issued for non-appearance and he has attempted to gain legal status through his employer. However, many other facts we considered in Liviaz apply with equal force to this case.
At the time he committed these crimes, defendant had been living in this country illegally for at least eight years. He obtained false documentation in 1992 to allow him thereafter to obtain a false New Jersey identification card, thus adopting an alias that he utilized for a number of years. While he may have attempted to legalize his status as early as 2001, those attempts were denied; nevertheless, defendant again resorted to "fraud and subterfuge" by committing these offenses, thus, demonstrating a "lack of honesty and persistence in violating the law." Id. at 407.
In short, we conclude the prosecutor's decision was not a clear error in judgment that required judicial intervention to rectify an egregious injustice. "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254. In our opinion, the decision to deny defendant admission to PTI was based upon a reasonable weighing of the statutory factors contained in N.J.S.A. 2C:43-12(e). We therefore reverse the order under review.