May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JENNIFER L. HAUPT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-02-0102 and 05-02-0104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2008
Before Judges Cuff and Lisa.
After the court denied defendant's appeal of the prosecutor's rejection of her application for admission into the Pre-Trial Intervention (PTI) program, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10d. Defendant was sentenced to three years probation, conditioned upon obtaining drug treatment and payment of $370 restitution to the owner of the vehicle that was unlawfully taken. Mandatory monetary assessments and loss of driving privileges were also imposed.
Defendant now appeals from the order denying her admission into PTI. In particular, she argues:
THE PROSECUTOR COMMITTED A CLEAR ERROR OF JUDGMENT IN HER APPLICATION OF THE PRETRIAL INTERVENTION GUIDELINES TO THE FACTS OF THE CASE, SO CLEARLY UNREASONABLE AS TO SHOCK THE JUDICIAL CONSCIENCE. THE PROSECUTOR MISAPPLIED GUIDELINE FACTOR (3)(I), FINDING HAUPT'S TWO INDICTMENTS, THREE DAYS APART, TO CONSTITUTE PROOF OF GUIDELINE (3(I), A "CONTINUING PATTERN OF ANTI-SOCIAL BEHAVIOR," I.E. "PART OF A CONTINUING CRIMINAL BUSINESS OR ENTERPRISE." (A GUIDELINE FACTOR FOR REJECTION OF PTI). MISAPPLICATION OF A PRETRIAL INTERVENTION GUIDELINE 'FACTOR' IS A QUESTION OF LAW, A MATTER ON WHICH THE APPELLATE COURT MAY SUPPLANT THE PROSECUTOR[']S DECISION.
Our review of the record leads us to conclude that, in rejecting defendant's PTI application, the prosecutor failed to consider a number of relevant factors, as a result of which we remand to the prosecutor for reconsideration.
On December 31, 2004, the twenty-two-year-old defendant was living with her twenty-year-old sister, Crystal Haupt. The sisters were heroin users, and were found by the police to possess in their apartment on that day hypodermic syringes they used to inject the heroin, and defendant had on her person twenty bags of heroin. There is no dispute that the heroin was intended only for personal use. Defendant was charged with possession of a CDS and released on her own recognizance.
On January 4, 2005, Crystal Haupt took the car of a neighbor with whom the sisters were acquainted without the owner's permission. She took it for the purpose of driving to a location where she could purchase more heroin. At some point during the interlude, defendant entered the car as a passenger. Defendant acknowledged she was aware that her sister did not have permission to use the car. Although the record is unclear, apparently the sisters left the car in a shopping center parking lot. The victim impact statement by the car's owner includes a bill for towing and storage charges and checking some mechanical aspect of the car, without finding any problem. Those charges provided the basis for the restitution order. Defendant was charged with subsection d of N.J.S.A. 2C:20-10 (commonly referred to as "joyriding"), as a passenger, and Crystal was charged with violating subsection b as the driver.
According to the presentence report, defendant had no prior history of juvenile or adult arrests. She was a high school graduate and had attended Rutgers University for three years.
By the time the presentence report was prepared, defendant had participated extensively in drug rehabilitation programs, apparently with success, and she was gainfully employed. Defendant has never been married. She has no children. At the time of sentencing, she was residing in California, where she was born and had lived before moving to New Jersey as a child. Defendant's parents are divorced. The presentence report states that "DEFENDANT SEEMS TO RECEIVE ALOT OF SUPPORT FROM HER FATHER AS SHE GOES THROUGH RECOVERY."
Defendant applied for admission to PTI. The program director approved her application. However, the prosecutor rejected it, expressing the following as the sole basis:
Defendant is indicted for two separate crimes on two separate occasions. Therefore, neither represents an isolated event. Defendant's commission of two crimes relatively close in time represents an emerging pattern of anti-social behavior that is best addressed through prosecution in the normal course.
The prosecutor's sole basis for rejecting defendant's PTI application was based upon the conclusion that her criminal conduct, committed on two separate dates, constituted "part of a continuing pattern of anti-social behavior." See N.J.S.A. 2C:43-12e(8). At oral argument before the trial court, the prosecutor noted that her conclusion was bolstered by the fact that after defendant was arrested and charged with the drug offense, she was not deterred from engaging in another criminal act four days later.
A prosecutor's decision to reject an applicant's PTI application is entitled to enhanced deference and will be judicially overridden only if the defendant demonstrates clearly and convincingly that the prosecutor's rejection was based on a patent and gross abuse of discretion. State v. Baynes, 148 N.J. 434, 443-44 (1997). Although, as part of the deference afforded to prosecutors, courts generally assume that the prosecutor considered all relevant factors, a court is not bound to do so if there is contrary evidence. Id. at 444. And, the prosecutor abuses his or her discretion if the rejection decision "was not premised upon a consideration of all relevant factors." State v. Bender, 80 N.J. 84, 93 (1979).
At its core, a PTI assessment is highly individualized and the prosecutor must take into consideration all relevant circumstances pertaining to the applicant and the offense. State v. Sutton, 80 N.J. 110, 119 (1979). The Legislature has laid out a list of seventeen non-exclusive factors that must be considered. N.J.S.A. 2C:43-12e(1) to (17); see also N.J.S.A. 2C:43-12b (admission to PTI "shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense."). Consideration of the relevant factors should be viewed in light of the purposes underlying PTI, as set forth by the Legislature in N.J.S.A. 2C:43-12a. PTI is deemed appropriate when early rehabilitative services or supervision "can reasonably be expected to deter future criminal behavior by an applicant, and when there is apparent causal connection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred." N.J.S.A. 2C:43-12a(1).
In a context generally similar to this one (involving multiple offenses), but dealing with Guideline 3(i)(2) to Rule 3:28, which is not applicable in the case before us, our Supreme Court recently made clear that multiple criminal acts do not bar a defendant from PTI eligibility. State v. Watkins, 193 N.J. 507, 526-27 (2008). The Court pointed out that multiple criminal acts and the length of time over which they were perpetrated are relevant considerations under factor (8) of N.J.S.A. 2C:43-12e (pattern of antisocial behavior), but that factor must be considered along with other relevant considerations in the ultimate PTI determination. Id. at 527.
In our view, the prosecutor relied solely upon factor (8). In denying defendant's PTI appeal, the trial judge credited the prosecutor with also considering factors (1) and (2), the nature of the offense and the facts of the case. However, other than reciting what defendant's criminal conduct consisted of in each case and that there were indeed two separate offenses, we fail to see how the prosecutor considered the underlying circumstances in light of the purposes of PTI and the relationship between the offense conduct and its apparent causal connection to defendant's rehabilitative or supervisory need. These offenses were obviously closely intertwined with defendant's admitted drug dependency. The offenses would not have occurred except for the dependency, and that dependency is the basis for defendant's rehabilitative and supervisory need.
The judge also credited the prosecutor with considering factor (4), the desire of the victim to forego prosecution. We see nothing in the record to support that finding. The drug offense, of course, had no victim. The victim of the joyriding offense submitted, at the request of the prosecutor, a victim impact statement, in which he sought restitution for his out-of-pocket expenses. Nowhere in that statement or anywhere else in the record is there a suggestion that the victim expressed a view as to whether the appropriate disposition of defendant's charges should be prosecution or diversion. Either way, he would receive his restitution.
It is impermissible for a prosecutor to pick out one factor that weighs against PTI admission and to reject an application solely on that basis. All relevant factors must be considered. For example, in addition to comments we have already made, consideration should be given to the fact that these were nonviolent offenses and there is no suggestion that defendant has any history of violence or involvement with organized crime, see factors (10), (12) and (13), defendant appears to be well motivated to address the underlying cause of her criminal behavior and rehabilitate herself, see factor (3), and her criminal conduct is related to a condition (her drug addiction) that would be conducive to change through participation in supervisory treatment, see factor (6). The required individualized assessment requires an articulation of the applicability or non-applicability of each statutory factor, as well as any others deemed relevant, together with an expression of the weight attributable to each factor, and ultimately a qualitative balancing of factors in reaching a final conclusion.
We remand to the prosecutor for reconsideration of defendant's PTI application in accordance with this opinion.
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