On appeal from Superior Court of New Jersey, Law Division, Essex County, 07-01-0128-A and 07-01-0131-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern and Waugh.
The State appeals from the defendants' admissions into the pretrial intervention program (PTI).
Defendants were both charged with third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), third- and fourth-degree possession of weapons offenses, N.J.S.A. 2C:39-4d, -5d, and third-degree criminal mischief, N.J.S.A. 2C:17-3. After waiving indictment and trial by jury, both defendants pled guilty to simple assault, a disorderly persons offense, N.J.S.A. 2C:12-1a, and third-degree criminal mischief in exchange for recommendations incident to the disposition and sentence. The State "consent[ed]" to both defendants' "application[s]" to PTI and recommended a sentence of "non-custodial probation" if not admitted.*fn1 The PTI program found defendants eligible and recommended admission. However, the prosecutor declined to consent.
As to defendant Mercedes, the prosecutor wrote:
Specifically, it has been shown that on November 22, 2006, at approximately 11:35 p.m., victim Raymond Grier was attacked with baseball bats by the defendant and three other men. He reported that while attempting to start his vehicle, the four men approached him and smashed his driver's side rear window and front windshield with aluminum baseball bats. As he attempted to exit the vehicle, the men beat him on the head with the baseball bats and attempted to flee to their vehicle. A hospital security guard saw the four men running with bats and called for assistance. The defendant, along with three other co-defendants, were arrested without incident. The victim, who obtained independent medical assistance, suffered from lacerations to his head and face and glass in his eyes. Mr. Grier still suffers from severe headaches and sensitivity to bright light.
I have evaluated the guidelines relevant to P.T.I. as enunciated in statutory and decisional law. Upon due consideration of all factors, I have determined that Octavio Mercedes is not a suitable candidate for diversion.
There is a presumption against admission into P.T.I. where the crime was deliberately committed with violence or threat of violence against another person. Guideline 3(i) of R. 3:28. In this case, the defendant and three other men deliberately, and without provocation, beat the victim and his property with aluminum baseball bats. Where the Guidelines create a presumption against admittance, this Office may reject an applicant solely due to the nature of the offense, unless he shows "compelling reasons" justifying his admission. Although the defendant is young, has completed high school, and is enrolled at Passaic County Community College, he has not demonstrated anything or idiosyncratic in his background suggesting that he would be responsive to rehabilitation. Therefore, the defendant has not overcome the presumption against his admission and is an inappropriate candidate for P.T.I.
This office has also considered the needs and interests of the victim and society in making its decision, and the possible injurious consequences of the defendant's actions. N.J.S.A. 2C:43-12(e)(7) and (10). The victim suffered significant injuries during the attack, including lacerations on his head and face, glass in his eyes, severe headaches, and sensitivity to bright light. In addition, he suffered from extensive property damage to his car. The act of hitting someone with a bat is very dangerous, and could have resulted in the victim's death of more serious injuries. This type of behavior is socially unacceptable and needs to be deterred. Therefore, the defendant is not a suitable candidate for a diversionary program.
Finally, I have determined that the defendant has failed to establish that the values of supervisory treatment would outweigh the public need for prosecution. N.J.S.A. 2C:43-12e(14). The aggravating factors, particularly N.J.S.A. 2C:43-12e(1), (2), (7), (9) (substantial danger), (10), (14), (15), and (17), which overwhelmingly outweigh the mitigating factors, namely N.J.S.A. 2C:43-12e-(3) (age), (8), (9) (no criminal convictions), (12), and (13), militate against the defendant's admission into the program.
The prosecutor wrote the same objection with respect to defendant Simmons.
Both defendants appealed the denial, and the designated judge overruled the prosecutor's objection. Although recognizing the proper scope of review and appropriate ...