June 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARC R. GONTARSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1894.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2008
Before Judges Graves and Alvarez.
Defendant Marc Gontarski appeals from an order dated February 16, 2007, denying his motion to be admitted into the pretrial intervention (PTI) program over the objection of the Monmouth County Prosecutor. We affirm.
A Monmouth County Grand Jury charged defendant with two counts of third-degree aggravated assault. The "offense circumstances" as set forth in the PTI investigator's report, were as follows:
On 6/11/2006, while on routine patrol, Det[.] Pringle observed a white male, later identified as Marc Gontarski, running down the road to flag a taxi. The report states that Mr. Gontarski was creating a hazard and as he was being written a summons he started creating a scene and was subsequently arrested for disorderly conduct.
At that time, Mr. Gontarski resisted arrest but Det. Pringle was assisted by Special Officer Belloni and Mr. Gontarski was handcuffed and transported to Belmar Police Headquarters. At headquarters Officer Lee explained to Mr. Gontarski that they would have to remove his necklace before putting him in a cell but as they approached, Mr. Gontarski put up his hand, causing Officer Lee to grab him and in return Mr. Gontarski grabbed onto Det. Pringle, causing Mr. Gontarski to fall onto Det. Pringle and take him to the ground. The report continues that the assisting Officers were unable to get Mr. Gontarski up off of Det. Pringle and therefore Officer Lee used pepper spray to separate the parties and subsequently Mr. Gontarski was placed in a cell.
The PTI investigator recommended defendant's application be granted on "condition that Mr. Gontarski submit to psychological and substance abuse evaluations," because defendant admitted "to smoking marijuana approximately three times per week." However, the Monmouth County Prosecutor's Office rejected defendant's PTI application, and it explained its reasons for the rejection in a three-page memorandum dated November 29, 2006.
Defendant's appeal from the prosecutor's decision, pursuant to Rule 3:28(h), was heard by the court on February 16, 2007. Defense counsel informed the court that defendant was scheduled to graduate from college in June "with a degree in psychology," and he argued defendant was "a perfect candidate" for the PTI program:
Quite frankly, when I looked at the police reports, there was no hospitalization, no mention of any physical injuries, nobody appeared to have any problems with equipment being torn or broken. It was merely a scuffle when the police officers wanted him to remove a religious article that he had around his neck. And quite frankly, if we look at that we can easily, I think, put this down to he was under the influence. And at that point in time I think this is a perfect candidate to go through PTI.
If you take this incident out, there's no other incident in there. He's motivated, he wants to be self[-]employed, he wants to better himself. And quite frankly, to derail him at this time I don't think is good for the system and is good for him. I think it's really a gross abuse when the Prosecutor's answer is well, we're rejecting him because he used marijuana. Well, the problem is he has a substance abuse problem. That's the problem.
In an oral decision on February 16, 2007, Judge Mellaci made detailed findings, and his reasons for denying defendant's motion included the following:
This [c]court will now review the Prosecutor's decision rejecting the defendant from PTI based on the new information regarding the New York dismissed charges as well as the statements originally noted in their original memo. The Prosecutor cited two factors in rejecting the defendant. These were the facts of the case and whether the crime was of an assaultive or violent nature. In assessing these factors the Prosecutor stated[:]
"The defendant in this case assaulted two police officers. He became unruly with both officers and wrestled with the officers in an attempt to resist their efforts. The defendant created a hazardous tumultuous situation for both officers involved. In this particular case the defendant assaulted Ptlm. Lee and Det. Pringle. He even took Det. Pringle to the ground as he resisted the officers. As a result of the defendant's behavior, Ptlm. Lee was forced to use his department issued pepper spray in order to subdue the defendant, who was uncontrollable."
Guideline 3(i) states that a defendant should generally be rejected if the crime was deliberately committed with violence or threat of violence against another person. PTI rejection memorandum page 3 of the original memorandum.
This [c]court finds that the Prosecutor's assessment of these factors was appropriate and does not constitute an abuse of discretion. Defendant was unruly during the arrest and had to be sprayed with pepper spray by the officers. He certainly presented a danger to the officers, and this [c]court cannot say that the Prosecutor inappropriately considered these factors. Additionally, in this [c]court's view defendant is not an appropriate candidate for PTI in light of his statements made during his PTI interview.
During the interview defendant stated that he continues to smoke marijuana three times a week. Accordingly, defendant breaks the law three times a week. The fact of defendant's continued drug use combined with the violent nature of this crime lead this [c]court to believe that the defendant is not only a poor candidate for PTI but would actually be unable to complete it. Accordingly, the defendant's motion appealing his rejection from PTI is hereby denied.
On March 12, 2007, defendant pled guilty to both counts of the indictment. In exchange for defendant's guilty pleas, the State agreed to recommend a non-custodial sentence, and, on June 8, 2007, defendant was sentenced to probation for two years conditioned upon a substance abuse evaluation and compliance with all treatment recommendations. Mandatory fees and penalties were also imposed.
The history, purpose, and application of the legislation and court rules that provide for PTI for certain first-time offenders have been described in State v. Baynes, 148 N.J. 434, 441-44 (1997). See also State v. Wallace, 146 N.J. 576, 581-85 (1996); State v. Nwobu, 139 N.J. 236, 245-49 (1995). An application for admission into PTI is considered first by the criminal division manager as director of the PTI program. Baynes, supra, 148 N.J. at 441. The director's recommendation requires the consent of the county prosecutor. R. 3:28(c)(1).
The prosecutor's discretionary decision is accorded "'enhanced deference'" by the courts. Baynes, supra, 148 N.J. at 443 (quoting Nwobu, supra, 139 N.J. at 246).
On appeal by a rejected applicant, a court will order the applicant's admission only upon clear and convincing evidence that the prosecutor's rejection was the result of a "'patent and gross abuse of . . . discretion.'" Wallace, supra, 146 N.J. at 582 (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)) (alteration in original). The Court has defined the test for a patent and gross abuse of discretion as follows:
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.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
Defendant contends that the prosecutor erred in rejecting his PTI application, and he argues that the State's decision to recommend a probationary sentence "is totally inconsistent" with its decision to reject his PTI application. In our view, these arguments are unpersuasive. Generally, "it is presumed that the prosecutor considered all relevant factors before rendering a [PTI] decision." State v. Dalglish, 86 N.J. 503, 509 (1981). Moreover, it is apparent from the prosecutor's PTI memorandum dated November 29, 2006, that all of the relevant circumstances ----including defendant's substance abuse problem----were considered and evaluated by the prosecutor's office.
Defendant's argument that the prosecutor's PTI decision was an abuse of discretion because it was inconsistent with the State's recommendation for a probationary sentence is equally without merit. See Wallace, supra, 146 N.J. at 588-89 ("[A] subsequently negotiated non-custodial sentence does not retrospectively impugn the soundness of a previous prosecutorial decision that criminal prosecution rather than pretrial diversion is the appropriate disposition of the charges against the defendant.").
In this case, the record fully supports the trial court's determination that defendant failed to present compelling reasons to justify his admission into the PTI program. We therefore affirm substantially for the reasons stated by Judge Mellaci in his comprehensive oral decision on February 16, 2007.
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