October 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH A. GIORGIO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-10-2358.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 9, 2008
Before Judges Skillman and Graves.
Defendant Joseph Giorgio appeals from an order dated June 15, 2007, denying his motion for admission to a Pretrial Intervention (PTI) program over the objection of the PTI director and the Monmouth County Prosecutor's Office. We affirm.
In a four-count indictment, defendant was charged with second-degree aggravated assault for knowingly causing serious bodily injury to another, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault for knowingly causing bodily injury to another with a deadly weapon (a baseball bat), N.J.S.A. 2C:12-1(b)(2), (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), (count four). On January 29, 2007, defendant entered a guilty plea to count two. In return for defendant's guilty plea, the State agreed to recommend the dismissal of the remaining counts of the indictment and a non- custodial sentence. In addition, the State agreed it would not raise a procedural objection to defendant's PTI application.*fn1
During defendant's plea hearing, the following colloquy took place between the court and defendant:
Q: Knowing all those things, do you still wish to plead guilty?
A: Yes, sir.
Q: And are you guilty?
A: Yes, sir.
Q: What did you do?
A: Struck an individual in the head with a bat.
Q: Where were you?
A: Belmar, New Jersey.
Q: And when did it happen?
A: May 21st of 2006.
Q: I don't know the facts of the case, but you understand that you could always raise a defense of self defense, and by pleading guilty you're waiving your right to present that defense. Are you aware of that?
A: I'm aware of that.
Q: Okay. Do you have any questions you want to ask of the Prosecutor, Mr. Kenney, or of me?
A: No, no, sir.
Defendant's PTI application was initially rejected by the PTI program director. The program director's written report to the court noted defendant was a twenty-seven-year-old college graduate, who was single and employed as a co-owner of "Curves," and a disc-jockey on a part-time basis. The program director recommended that defendant's application be denied:
Mr. Giorgio admitted that he hit the victim in the head with a baseball bat and then left the area. As a result of the defendant's actions, the victim had 55 stitches in his head, suffered a concussion and had 5 split arteries. Due to the nature of the offense, it is felt that the offense goes beyond the scope of PTI. The outcome of this offense could have been even more serious and/or life-threatening. Based on the above information, the defendant is not being recommended for acceptance into the program.
The Monmouth County Prosecutor's Office agreed that defendant's application should be denied. While noting there were positive factors in support of defendant's application, including his college education, work history, and letters of recommendation on his behalf, the prosecutor's office ultimately concluded defendant was not an appropriate candidate for PTI because the negative factors significantly outweighed the positive factors. The State's reasons for rejecting defendant's application were as follows: (1) the facts of the case, N.J.S.A. 2C:43-12(e)(2); (2) defendant's lack of motivation to succeed in PTI, N.J.S.A. 2C:43-12(e)(3); (3) the victim's opposition to defendant's application, N.J.S.A. 2C:43-12(e)(4); (4) the extent to which the crime constituted a part of a continuing pattern of anti-social behavior, N.J.S.A. 2C:43- 12(e)(8); (5) the injurious consequences of defendant's behavior, N.J.S.A. 2C:43-12(e)(10); and (6) the presumption against PTI for crimes of violence, Rule 3:28 Guideline 3(i).
Following defendant's appeal to the Law Division, the trial court ruled there was insufficient evidence to demonstrate that defendant was not motivated to succeed in PTI, and that the crime was part of a continuing pattern of anti-social behavior. The court noted, however, defendant "aggressively pursued the victim and his friends" prior to the assault. Thus, based on the facts of the case and the other factors the prosecutor relied on----the victim's opposition, the violent nature of the assault, and the severe injuries sustained by the victim----the court concluded the evidence was sufficient to support the prosecutor's decision.
On appeal to this court, defendant argues:
POINT I THIS COURT SHOULD ADMIT DEFENDANT INTO THE PTI PROGRAM BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT ADMISSION DESPITE ITS FINDING THAT THE PROSECUTOR EXHIBITED A PATENT AND GROSS ABUSE OF DISCRETION AND A CLEAR ERROR IN JUDGMENT AS TO SEVERAL OF ITS REASONS FOR REJECTION.
A. THE TRIAL COURT ABUSED ITS DISCRETION AND MISINTERPRETED CONTROLLING AUTHORITY IN HOLDING THAT DEFENDANT WAS PROHIBITED FROM ASSERTING A FACTUAL DISPUTE BECAUSE HE HAD ENTERED A GUILTY PLEA PRIOR TO APPLYING FOR ADMISSION INTO PTI.
B. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO FIND THAT THE STATE COMMITTED A PATENT AND GROSS ABUSE OF DISCRETION AND A CLEAR ERROR IN JUDGMENT IN DELIBERATELY CONCEALING FROM DEFENDANT, UNTIL AFTER HE ENTERED A GUILTY PLEA AND SUBMITTED HIS PTI APPLICATION, THAT THE ALLEGED VICTIM WOULD OPPOSE HIS ADMISSION TO THE PTI PROGRAM.
C. THE TRIAL COURT ERRED IN FINDING THAT THE STATE PROVIDED DEFENDANT WITH THE INDIVIDUALIZED EVALUATION OF HIS PTI APPLICATION TO WHICH HE IS ENTITLED AND THAT IT PROPERLY CONSIDERED ALL SEVENTEEN FACTORS.
We have considered these arguments in light of the record and the applicable law, and we are satisfied they are without sufficient merit to warrant extended discussion. R. 2:11- 3(e)(2). We affirm substantially for the reasons stated by Judge Mellaci on June 15, 2007, with only the following comments.
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). Consequently, judicial review of a decision to reject a PTI application is "severely limited," State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). To successfully challenge a prosecutor's rejection, "a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (internal quotation marks omitted). 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).] In the present matter, the trial court found that the prosecutor's rejection of defendant's PTI application was not a patent and gross abuse of discretion based primarily on the facts of the case and Guideline 3(i) to Rule 3:28, which provides that a defendant's PTI application should generally be rejected if the crime was "deliberately committed with violence . . . against another person." Thus, defendant was presumptively ineligible for PTI, and we agree he failed to establish that the prosecutor's rejection of his application was a patent and gross abuse of discretion.