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State v. Culmer


April 2, 2008


On appeal from Superior Court of New Jersey, Law Division, Warren County, No. W-2006-000102-2113.

Per curiam.


Submitted January 30, 2008

Before Judges Wefing and Lyons.

The State of New Jersey, through the Warren County Prosecutor, appeals from a trial court order directing that defendant be admitted into the Warren County Pretrial Intervention Program ("PTI"). After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant, her husband, and their three children were camping on the weekend of August 27, 2006, in Knowlton Township. Defendant and her husband got into an argument when he returned late for dinner. In the course of the argument, she stabbed him in the arm. He left, taking their daughter and the family dog with him. Later that evening New Jersey State Troopers Robertson and Rubino, while patrolling on Route 287 southbound, came upon a car pulled off on the shoulder, with no warning lights. They approached the car and found defendant's husband at the wheel. They detected an odor of alcohol and noted that his shorts and sweatshirt were soaked in blood. He related the earlier incident with his wife. He said that as he was driving, he felt lightheaded and had pulled over. One of the troopers spoke with the ten-year-old girl in the car; she also related the circumstances of her parents' dispute and defendant stabbing her father. She identified a knife on the dashboard as the weapon defendant had used.

He was taken to the hospital to have his injuries treated. Several stitches were required to close his wound. He was advised of his right to seek a restraining order, but he declined to do so.

Police were dispatched to the campsite and located defendant with the couple's two younger children. They detected a strong odor of alcohol on her breath. They advised her of her Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and she provided a statement in which she recited that the couple had gotten into an argument when her husband was not on time for dinner. She said he had grabbed her by the neck; no visible signs of injury could be seen. She admitted she stabbed him with the knife, intending to hurt him but did not intend to cause serious injury. She said she had discarded the knife in the campfire. The police retrieved a knife blade from the ashes.

Defendant was charged with aggravated assault, N.J.S.A. 2C:12-1(b)(2), a crime of the third degree; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), a crime of the third degree; and possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d), a crime of the fourth degree. Her husband was charged with simple assault, N.J.S.A. 2C:12-1(a). The record before us does not reveal the disposition of that charge.

Defendant applied for admission into PTI and was rejected. The rejection notice cited four factors: the assaultive nature of the offense, the conclusion she would not benefit from supervisory treatment, that she had been charged with an offense carrying a presumption of imprisonment and had not shown compelling reasons to justify her admission or that rejection would be arbitrary and unreasonable, and that PTI is designed primarily for "victimless" crimes.

Defendant appealed to the trial court. She contended she had demonstrated that she was amenable to correction, that her husband did not want her to be prosecuted and that the benefits to be obtained by her admission outweighed any need for prosecution. The trial court remanded the matter to the Warren County Prosecutor for reconsideration. In its statement of reasons, the trial court noted that the decision whether to admit an applicant to PTI required consideration of a number of factors beyond the nature of the offense itself.

In response, the Prosecutor submitted a detailed statement of reasons why, in his judgment, the great majority of the seventeen factors set forth in N.J.S.A. 2C:43-12(e) weighed against admitting defendant into PTI. These included not only the violent nature of the offense, but such additional items as defendant's failure to provide documentation to support her assertions that she was engaged in alcohol rehabilitation treatment and that continuing the matter in the criminal justice system would jeopardize her position as a trading assistant on Wall Street. It also noted that it did not ascribe any weight to her husband's desire to forego criminal prosecution in light of the fact that it is not unusual for victims of domestic violence not to want to move the case forward; the Prosecutor considered it important to hold accountable those who commit domestic violence to reduce the possibility of a repetition. It stated that the close supervision available through probation could more effectively address defendant's admitted alcoholism than could PTI. It also noted that the supervision available through probation would provide a better vehicle than PTI to address defendant's perceived problems with anger management. It noted only two factors that weighed affirmatively in favor of admitting defendant into PTI, her lack of any prior involvement with the criminal justice system and the absence of any involvement of organized crime. Attached to the brief was a certification from a senior probation officer that defendant had informed her that she was engaged in an intensive outpatient treatment program for her alcoholism but that the program had informed the officer that defendant had ceased her participation without explanation and had thus been discharged.

Defendant again appealed to the trial court. As part of her appeal she submitted a certification about her efforts to treat her alcohol addiction. She did not attach to that certification any documentation supporting her assertions.

After argument, the trial court entered the order that is on appeal. It attached to that order a detailed statement of its reasons, reviewing the various factors and the respective positions of the parties as to how each should be weighed in the deliberative process. It concluded that the State's rejection of defendant was a patent and gross abuse of discretion; it characterized the reasons as "fictitious" and "not valid based on the record." The trial court specifically criticized the Prosecutor's reference to defendant having a problem with anger management and "continuing anti-social tendencies." As to the latter, we agree that the record contains no support for such an assertion. The trial court summarized the incident in the following manner:

Both the defendant and the victim indicate that the event in question was a mutual argument or fight, which was contributed to by the fact that both parties were intoxicated. The defendant has, since, sought alcohol treatment. The victim does not wish to prosecute.

There is no dispute between the parties as to the appropriate standard to be applied when a court is considering whether an applicant should be admitted into PTI over the objections of the prosecutor.

[The PTI] decision lies, in the first instance, with the prosecutor, and once he has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference. In fact, the level of deference which is required is so high that it has been categorized as "enhanced deference" or "extra deference." Beyond this, it has been expressly noted that the scope of any review in this area is to be "severely limited." * * * Thus, judicial review, in actuality, exists "to check only the most egregious examples of injustice and unfairness."

The reason for this elevated standard of review stems from "[t]he need to preserve prosecutorial discretion in deciding whether to divert a particular defendant from the ordinary criminal process . . . ." Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options.

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. Specifically, "a defendant 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' before a court [can] suspend criminal proceedings under R. 3:28 without prosecutorial consent." [State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)).]

While the trial court recognized this standard in its written statements, we are constrained to conclude that the trial court departed from it. The incident which occurred between defendant and her husband can be interpreted in several ways. The Prosecutor, stressing defendant's resort to physical violence and the use of a weapon, reached the conclusion that PTI would not provide a sufficient supervision and deterrence to defendant. The trial court, on the other hand, appeared to view the matter as an unfortunate argument between intoxicated spouses. We cannot consider the Prosecutor's view that the resort to a weapon transformed this matter from a simple marital spat into something of a far more serious nature as an arbitrary exercise of his discretion.

The Court noted in Nwobu, supra, "[t]he 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. Viewed in that framework, we are satisfied that the trial court erred when it ordered that defendant be admitted to PTI over the objections of the Prosecutor.

The order under review is reversed.


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