August 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALEXANDER PETROSYAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-02-000095.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 21, 2008
Before Judges Graves and Yannotti.
Defendant Alexander Petrosyan appeals from an order entered on May 2, 2007, denying his motion to be admitted into the pretrial intervention (PTI) program over the objection of the Somerset County Prosecutor. On appeal, defendant contends the prosecutor's office clearly abused its discretion "by failing to consider all relevant factors in processing the application as well as by improperly weighing the significance of other relevant factors." Based on our review of the record, the arguments of counsel, and the applicable law, we affirm.
Indictment No. 07-02-00095 charged defendant and co-defendant Jamar L. Harris (Harris) with third-degree possession with intent to distribute cocaine, contrary to N.J.S.A. 2C:35-5(a)(1) (count one), and third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count two). The undisputed facts giving rise to these charges are as follows. On January 8, 2007, defendant drove co-defendant Harris to the Hillsborough Municipal Court to "[get] some parking tickets . . . taken care of." While at the municipal court, Harris was taken into police custody on an outstanding Bridgewater Municipal Court arrest warrant. Thereafter, Harris placed a telephone call to defendant from the police station. During the telephone conversation, which took place on a recorded line, police overheard Harris ask defendant to come to the police station to pick up fifty dollars Harris had on his person. Harris also told defendant to leave the "creatine" inside the glove box of defendant's car until Harris was released from the county jail.
Suspecting that "creatine" was actually a controlled dangerous substance (CDS), police questioned defendant when he arrived at the police station. After admitting the "creatine" was actually cocaine, defendant "voluntarily turned it over" to police.
In a post-Miranda*fn1 statement, defendant admitted helping Harris package the cocaine, and he admitted they were going to sell the cocaine after Harris took care of his parking tickets. Additionally, in a certification to establish probable cause, Patrolman C. Engelhardt stated: "Both defendants gave post[-]Miranda statements admitting they had packaged the cocaine and were going to sell it after Harris'[s] court appearance. Both were going to sell the drugs in exchange for cell phones and then split the proceeds of the sale of the cell phones."
Defendant applied for admission into the PTI program, and in a letter dated March 5, 2007, Criminal Division Manager John N. Condelli advised defendant: "This office has determined that you are an appropriate candidate for Pretrial Intervention and has approved your application to the Somerset County Pretrial Intervention Program." The letter also informed defendant, however, that "the [prosecutor's office] does not consent to your participation in the [PTI] Program." Attached to Condelli's letter dated March 5, 2007, was a letter from the prosecutor's office dated March 2, 2007, which, in its entirety, reads as follows:
Please be advised that [the] Somerset County Prosecutor's Office objects to . . . defendant's entry [into the] PTI program. I will follow-up with a more formal letter of objection,*fn2 setting further the State's reasons. Part of the reason is the fact that the defendant admitted that he was engaged in the sale of [c]ocaine for a profit. Also, allowing the defendant into PTI would have a negative impact on the prosecution of the co-defendant.
Defendant's "Motion To Compel [PTI] Enrollment," was heard on March 29, 2007. Defendant argued the prosecutor's office erred in denying his PTI application because he had no criminal record, he was not addicted to drugs, he was "holding down two jobs," and he was "going to college." On the other hand, the State argued it was well within its discretion to deny defendant's PTI application because (1) defendant possessed CDS with the intention of profiting from its distribution, (2) the PTI program's goal of rehabilitation was "not in play" because defendant was not addicted to CDS, and (3) accepting defendant into PTI "would have a negative impact on the prosecution of the co-defendant."
In denying defendant's motion, the court reasoned as follows:
It's clear to me that the [defendant] doesn't have any prior record, that he's relatively young, that he probably would benefit from the P.T.I. program. However, I can't find that there's been [an] abuse of discretion by the State in this case. I think they're within their discretion, and . . . I've determined that it's not appropriate to resolve this case in this fashion. And frankly, there is a valid reason to deal harshly with those involved in drug distribution because of the many problems that are caused by drug distribution.
You only have to come here any Friday and listen to the sentences for people who get involved in crimes and listen to them tell you I wouldn't have done it but for the fact that I was involved with drugs. I would not have committed that robbery, I would not have committed that burglary, I would not have done what I'd done, except for the fact I'm addicted to drugs.
I don't find that [the State] abused [its] discretion in th[is] case. They may have exercised their discretion, it may not be what I want or what you want, but I think they're within their rights to make that decision in the fashion they determine to be appropriate.
On April 27, 2007, defendant pled guilty to both counts of the indictment, and he was sentenced to 180 days in county jail, with the entirety of the jail sentence suspended on condition he successfully complete three years of probation. As a special condition of probation, defendant was required to complete a substance abuse evaluation and to comply with any treatment recommendations. Appropriate fees, penalties and assessments were also imposed.
It is well established that a prosecutor is afforded "great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI." State v. Wallace, 146 N.J. 576, 582 (1996); State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977) ("[G]reat deference should be given to the prosecutor's determination not to consent to diversion."). Consequently, judicial review of an applicant's rejection from PTI is "severely limited," State v. Negran, 178 N.J. 73, 82 (2003), and "[a] defendant seeking to overcome rejection from PTI must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305, (App. Div. 2007), aff'd, 193 N.J. 507 (2008)). See also Wallace, supra, 146 N.J. at 582-83 ("A patent and gross abuse of discretion is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." (Internal quotations omitted)); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) ("In fact, the level of deference which is required is so high that it has been categorized as enhanced deference or extra deference." (Internal quotations omitted)). To overcome such an elevated burden, a defendant must demonstrate the "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).
In the present appeal, defendant was charged with possessing with the intent to distribute cocaine, a Schedule II CDS. See N.J.S.A. 24:21-6(c)(4). Under Guideline 3(i) to Rule 3:28, "[a] defendant charged with . . . sale or dispensing of Schedule I or II narcotic drugs . . . by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Of course, this presumption of ineligibility is not conclusive in and of itself, however, where such a presumption is not rebutted by defendant, deference to the prosecutor's determination is proper. State v. Caliguiri, 158 N.J. 28, 43-44 (1999).
In addition, Guideline 3(j) to Rule 3:28 authorizes a prosecutor to consider "[t]he impact of diversion on the prosecution of co-defendants," and the court found this was a legitimate concern in this case:
[I]t may be that [Petrosyan] is willing to cooperate in the prosecution of [Harris]. The problem being, and it's a very real problem, as I've seen before, that the jury upset with the idea that the guy who's now in court, namely the [d]efendant, testifying on behalf of the State, is going to be able to walk away from this charge, yet the [d]efendant here on trial is looking at time in prison. And juries are very offended by that.
So, clearly, placing one person into the P.T.I. program and getting their statements against the co-defendant clearly [a]ffects the prosecution of the co-defendant. It basically backfires on the State. So unless there's a real severe evidential issue in the case, [it's] not worth doing.
We are satisfied from our review of the record that the motion judge made detailed findings of fact, which are amply supported by substantial credible evidence, and he correctly applied well-settled legal principles. We therefore affirm substantially for the reasons stated by Judge Edward M. Coleman in his oral decision on March 29, 2007.