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State v. Zak


March 26, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 06-12-1855.

Per curiam.


Submitted March 4, 2008

Before Judges Skillman and Yannotti.

The State appeals from an order entered on July 31, 2007, which requires the admission of defendant Brian J. Zak to pretrial intervention (PTI). For the reasons that follow, we reverse.

Defendant was charged under Accusation No. 06-12-1855 with one count of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). On December 8, 2006, defendant entered a plea to that charge. The State agreed to seek probation, on condition that defendant serve 364 days in the county jail. Defendant reserved the right to argue for probation without any incarceration. Defendant stated that on December 21, 2005, he assaulted Matthew Mensching with his fists, causing him to sustain significant bodily injuries.

Defendant was scheduled to be sentenced on February 9, 2007. On that date, the judge stated on the record that she had reviewed the pre-sentence report and a sentencing memorandum from defense counsel. The judge also had reviewed various letters that had been submitted on defendanat's behalf. The judge later remarked that she had been "distressed and concerned" about sentencing defendant and suggested that defendant apply for admission to PTI. On April 4, 2007, the judge entered an order staying defendant's sentencing so that he could apply for admission to the Ocean County PTI program.

Defendant thereafter submitted an application for PTI. By letter dated June 18, 2007, Ocean County PTI Director Delores Fray and Probation Officer Bernadette Moynihan informed defendant that he would not be admitted to PTI. In their letter, Fray and Moynihan stated that defendant's application was denied based on certain statutory factors, specifically the nature of the offense, N.J.S.A. 2C:43-12e(1); the facts of the case, N.J.S.A. 2C:43-12e(2); the desire of the complainant or victim to forego prosecution, N.J.S.A. 2C:43-12e(4); and the needs and interests of the victim and society, N.J.S.A. 2C:43-12e(7).

Fray and Moynihan detailed the facts of the offense, drawn from the reports of the police investigation of the incident. On December 21, 2005, defendant had been at a party at the home of a friend. Mensching also was in attendance at the party.

Mensching entered the party at approximately 11:30 p.m. At some point thereafter, defendant told Mensching to leave. Mensching said that defendant was raising his voice and he told him to "chill out." Mensching said that he grabbed his jacket and turned to leave when defendant punched him in the face.

Mensching stated that he fell to the floor and while he was on the ground, defendant kicked him in the face four or five times. Mensching pulled on defendant's leg and brought him to the ground. Mensching said that, as he was being assaulted, Matthew Long, another attendee at the party, urged defendant to keep going.

Other persons at the party separated Mensching and defendant. Mensching said that he was bleeding from the face.

He called a friend and asked for a ride home. When he arrived at home, Mensching informed his parents of the assault and they took him to the hospital. He was treated for two fractures of the jaw.

The police also questioned Long about the incident. Long stated that he, Mensching and defendant were at the party. Long said that he asked Mensching to leave several times but he said that he was not ready to go. Long then asked defendant to ask Mensching to leave.

According to Long, Mensching made a remark about defendant's girlfriend, who previously had been Mensching's girlfriend. Defendant pushed Mensching and they started to fight. Long said that defendant punched Mensching in the face, causing him to fall to the floor. Long asserted that defendant stood over Mensching and punched him in the face with closed fists ten to fifteen times. Long grabbed defendant and took him outside "to cool off."

In their letter, Fray and Moynihan stated that defendant's "level of aggression went beyond the scope of PTI." They noted that defendant knocked his victim to the ground but he continued to strike the victim, "bringing the fight to a higher level of assault." They wrote that "this type of offense is generally not suitable for PTI." Fray and Moynihan stated that the harm to society from the abandonment of defendant's criminal prosecution "would outweigh the benefits to society" from his admission to PTI.

Fray and Moynihan also stated that this was not a victimless crime and they noted that the victim opposed defendant's admission to the PTI program. They concluded that, "[t]he need for prosecution far outweighs any benefit you would derive from the PTI program. You exhibited extreme indifference to human life and diversion would be tantamount to a slap on the wrist."

By letter dated June 29, 2007, the assistant prosecutor advised defendant's attorney that the prosecutor had denied defendant's application for PTI for the reasons stated in the June 18, 2007 letter from Fray and Moynihan. The assistant prosecutor noted that this matter implicated the guidelines for PTI admission under Rule 3:28, including guideline 3(i)(3), which provides a defendant's application for PTI "should generally" be denied if the crime was "deliberately committed with violence or [the] threat of violence against another person[.]" The guideline further provides that, "in such cases," the applicant must show "compelling reasons justifying" his admission to PTI. The assistant prosecutor stated that defendant had already pled guilty to third-degree aggravated assault, and he had not shown "compelling reasons" for his admission to PTI.

The assistant prosecutor additionally asserted that "this [incident] did not start out as a mutual fight, but [was] a one-sided attack by the defendant." The assistant prosecutor noted that, "but for people pulling the defendant off and away from the victim, this attack would have continued." He added that, in reviewing the application, the State had given: consideration to the following favorable factors on the defendant's behalf: he does not have a criminal or disorderly persons record; his relatively young age; he voluntarily received anger management counseling; the crime does not appear part of [a] continuing pattern of anti-social behavior; and his entry into PTI would not affect any co-defendant's case because there are no co-defendants. The State also considered the four positive letters that were attached to his pre-sentence report.

These positive factors, however, do not outweigh the reasons for rejecting the defendant and certainly do not rise to the level of "compelling."

Defendant filed a notice of motion with the trial court to appeal the denial of his application for admission to PTI. The judge considered the motion on July 31, 2007. After hearing argument, the judge placed her decision on the record.

The judge stated that she disagreed with the prosecutor's view that the incident was an assault from the start. She noted that there had been "a consensual fight" but the defendant went forward and struck the victim while he was on the ground, causing the injury. The judge stated that based upon the defendant's age, that his prior history is clear[,] that he has taken positive steps to seek rehabilitation by not just occasionally seeking out a local anger management situation, but by going forward and engaging in community Psychology Associates and investing in his treatment, that he is attempting to move forward with his educational background, that he recognizes his fault and is willing to come forward and accept the responsibility, but wishes to continue his rehabilitation and to make up for this mistake, that he has been remorseful, and he's acting proactively to understand his behavior and ensure that it doesn't occur again.

And while I understand there has been an injury, I don't know that traditional prosecution would be the only way to satisfy this situation, and I don't think that there would be a concomitant harm to society. And while I understand [the views of the victim's parents], there appears to be a continuing relationship between the individuals here.

I find that situation to be one that is compelling. And so based on that, this Court will grant the appeal of the rejection and direct that the defendant proceed into the PTI program. . . .

The judge entered an order dated July 31, 2007 in conformance with the decision that she placed on the record. This appeal followed.

On August 27, 2007, the judge filed a written opinion pursuant to Rule 2:5-1(b) amplifying the reasons for her order.

In her opinion, the judge stated that the prosecutor had incorrectly assessed the facts of the case, and did not properly consider "defendant's clear amenability to rehabilitation and willingness to abide by the terms and conditions of the program." The judge also said that she was "particularly concerned" with the weight accorded by the prosecutor to the victim's views in the matter. The judge added that "PTI was created with this defendant in mind, a defendant with no criminal history, who possesses a strong desire to rectify any alleged wrong he may have committed and who intends to transform his life to avoid any future transgressions."

The judge further observed that the investigation in this matter "was wanting" and she was "not satisfied with the State's contention that this was a one-sided fight." She stated that although: there are clear statements in the presentence report that defendant was aggressive, this matter began because of the conduct of the victim in refusing to leave the party after being asked several times.

This incident involved two nineteen year old boys. The victim was the ex-boyfriend of defendant's girlfriend at the time. There were words exchanged between these two young men and it was a heated emotional situation.

It appears this was an argument which may have begun with pushing and shoving when at some point defendant became out of control.

The judge additionally stated that she accepted that defendant's conduct was violent but she said that defendant "is someone who has recognized his problem, has taken positive steps to remediate the problem, and while his response to [the] victim's conduct may have been inappropriate, the victim was clearly acting in a manner to instigate anger."

The judge further found that defendant had presented compelling reasons for his admission to PTI and defendant's "strong" amenability to rehabilitation outweighed "the negative facts of the case." The judge stated:

Here, the prosecutor failed to see this individual with the proper prism. Defendant's compelling reasons -- his amenability to rehabilitation, his young age, lack of criminal history, and defendant's own initiative in seeking anger management counsel are factors the prosecutor failed to assess correctly.

The judge stated that she was not convinced that the prosecutor had properly weighed and considered the positive factors. The judge found that the prosecutor "focused too strongly on the victim's desires without giving proper and just weight to the compelling reasons presented by defendant or to the victim's conduct which contributed to the incident." She concluded that defendant had clearly and convincingly established that the prosecutor had committed a patent and gross abuse of discretion in denying his admission to PTI.

The State argues that the judge erred by ordering defendant's admission to PTI because defendant did not clearly and convincingly establish that the prosecutor's decision was a patent and gross abuse of discretion. We agree.

The standard that applies to judicial review of a prosecutor's decision regarding PTI is well-established. A prosecutor's determination in this area is entitled to "great deference." State v. Leonardis, 73 N.J. 360, 381 (1977). Accordingly, the scope of judicial review of a prosecutor's decision regarding PTI admission is "severely limited." State v. Bender, 80 N.J. 84, 89 (1979). Indeed, judicial review of a prosecutor's PTI decision exists only to correct "the most egregious examples of injustice and unfairness." State v. DeMarco, 107 N.J. 562, 566 (1987) (quoting Leonardis, supra, 73 N.J. at 384).

Consequently, a defendant who seeks reversal of a prosecutor's veto of his admission to PTI bears "a heavy burden[.]" Leonardis, supra, 73 N.J. at 381. The defendant must "clearly and convincingly" establish that the prosecutor's decision "was based on a patent and gross abuse of [prosecutorial] discretion." Id. at 382. The Supreme Court has explained:

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).]

When reviewing a prosecutor's decision concerning admission to PTI, a court may not "substitute [its own] discretion for that of the prosecutor." State v. Nwobu, 139 N.J. 236, 253 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993)).

Admission to PTI is governed by N.J.S.A. 2C:43-12 and Rule 3:28 and its accompanying guidelines. State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Brooks, 175 N.J. 215, 223 (2002)). Guideline 3(i) provides that, in evaluating an application for admission to PTI, the prosecutor shall consider the nature of the offense. The guideline states in pertinent part that:

[a]ny defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was . . . (3) deliberately committed with violence or threat of violence against another person; . . . the defendant's application should generally be rejected. . . . However, in such cases, the applicant shall have the opportunity to present . . . any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

Here, the prosecutor found that defendant deliberately committed an offense with violence against another person, and defendant failed to present "compelling reasons" for his admission to PTI. Contrary to the judge's decision in this case, the record supports the prosecutor's determination and it was not a patent and gross abuse of discretion.

As stated previously, the record shows that Mensching refused to leave the party despite several requests that he do so. Mensching made a remark about defendant's girlfriend that apparently angered defendant. Defendant then turned what was a verbal dispute into a physical assault. At the plea hearing, defendant admitted that he caused serious bodily injury to Mensching. Indeed, as we have pointed out, Mensching sustained two fractures to his jaw, which required medical treatment.

Even if there was some doubt as to how the fight started, it is clear that at some point during the fight defendant's attack upon Mensching became a "one-sided" violent assault. The record shows that when defendant punched Mensching, he was thrown to the floor. Defendant repeatedly punched Mensching in the face when he was on the floor. Furthermore, as the assistant prosecutor noted in his letter of June 29, 2007, defendant's assault upon Mensching probably would have continued if other persons at the party had not pulled defendant off and away from the victim.

In our view, the judge erred by minimizing the seriousness of this offense. She stated that Mensching shared some responsibility for the incident because he refused to leave the party. The judge noted that there were "words exchanged" and she commented that "the victim was clearly acting in a manner to instigate anger." That may be so, but the prosecutor reasonably determined that the victim's actions did not justify the violent assault that defendant inflicted upon him.

The judge additionally observed that this "entire situation involved a number of young boys who obviously were acting on impulse as opposed to reasoned judgment." However, defendant was not a "young boy" when he committed the offense. He was nineteen years old. Furthermore, the record does not support the judge's view that defendant and Mensching were merely "acting on impulse[.]" The prosecutor determined that defendant acted deliberately. That was a reasonable determination and it is amply supported by the record.

In addition to considering the nature of the offense, the prosecutor reasonably based her decision on other factors pertinent to PTI admission. The prosecutor considered the victim's opposition to defendant's entry into PTI as permitted by N.J.S.A. 2C:43-12e(4). Although the judge stated that the prosecutor had "focused too strongly on the victim's desires[,]" the record indicates that this was only one of several factors that the prosecutor considered. Furthermore, the assistant prosecutor's letter of June 29, 2007 makes clear that the prosecutor did not give undue weight to the victim's views in the matter.

The prosecutor also took into account the fact that defendant's offense was of such a nature that the value of supervisory treatment was outweighed by the public need for prosecution. Consideration of this factor was permitted by N.J.S.A. 2C:43-12e(14). In addition, the prosecutor found that the harm to society resulting from abandonment of the prosecution outweighed any benefit to society that might result from defendant's admission to PTI. This is also a relevant factor under N.J.S.A. 2C:43-12e(17). Thus, the record shows that, contrary to the judge's findings, the prosecutor considered the relevant criteria for PTI admission.

The judge nevertheless found that the prosecutor failed to consider the fact that defendant has no prior criminal history or juvenile record and was amenable to rehabilitation. However, the assistant prosecutor stated in his letter of June 29, 2007 that these factors had been considered. The judge stated that the assistant prosecutor's statement was "perfunctory." She said that she was not convinced that the prosecutor had properly considered and weighed these factors, but the fact that the prosecutor accorded little or no weight to these factors does not mean that she failed to consider them.

The judge additionally found that defendant had offered compelling reasons for his admission to PTI. To establish "compelling reasons," defendant "must demonstrate something extraordinary or unusual, something 'idiosyncratic,' in his or her background." Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)). "[T]here must be a showing greater than that the accused is a first-time offender and has admitted or accepted responsibility for the crime." Ibid.

Contrary to the judge's findings, there was nothing "extraordinary or unusual" about defendant or his application for PTI. We recognize that defendant is a first-time offender and, as the judge noted, a criminal conviction may have serious consequences. We do not minimize defendant's willingness to take responsibility for his offense. We also do not discount defendant's amenability to rehabilitation. However, we are not convinced that the prosecutor committed a patent and gross abuse of discretion by finding that defendant had not established "compelling reasons" for his admission to PTI.

Therefore, the order of July 31, 2007 is reversed and the matter is remanded to the trial court for sentencing.


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