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State v. Urban


December 11, 2008


On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 07-08-0708.

Per curiam.


Submitted November 13, 2008

Before Judges Lyons and Waugh.

This is an appeal by the State, pursuant to Rule 3:28(f), from an order admitting defendant Lanielle Urban into the Gloucester County Pretrial Intervention (PTI) Program over the objection of the Gloucester County Prosecutor's Office. On appeal, the State contends that its decision to reject defendant from the PTI program was not a patent and gross abuse of its discretion and it was therefore error for the court to admit defendant into the PTI program over the State's objection. Based on our review of this woefully inadequate record and the applicable law, we conclude the prosecutor's decision to reject defendant's application, while deficient, was not a "patent and gross abuse of discretion," and we reverse the order admitting defendant into PTI and remand the matter to the trial court with instructions to further remand it to the prosecutor so that he can consider all of the relevant factors involved in defendant's application and then set forth his decision and reasons in writing as required by N.J.S.A. 2C:43-12(c).

We note at the outset that the record before us is meager. It does not contain defendant's PTI application, the Criminal Division's decision regarding defendant's entry into the PTI program, and, most importantly, does not contain a written decision together with the reasons therefore made by the prosecutor or the court as required by N.J.S.A. 2C:43-12(c). Moreover, while the State's brief sets forth a statement of facts, the facts are not "supported by references to the appendix and transcript" as required by Rule 2:6-2(a)(4). There is nothing in the appendix which supports the statement of facts. Likewise, there are no competent proofs*fn1 to support defendant's factual assertions in her brief.

The "facts" and procedural history relevant to our inquiry are as follows. On May 24, 2007, Officer Christopher Herner of the Glassboro Police Department was on routine patrol at approximately 12:24 a.m. when he was waved down by a group of people standing in the parking lot of a local bar.

Officer Herner approached the group and saw an intoxicated female, later identified as defendant, on the ground being detained by three or four of the bar employees. One of the employees related that she was out of control and that she had assaulted him. The employee did not want to press charges but just wanted her removed from the property.

The officer attempted to speak with defendant who immediately starting screaming at him. She said things such as, "You f****** pig, get way from me," and "Go f*** yourself, you f****** pig." After several attempts to calm her down, Officer Herner told her that if she did not calm down, she would be arrested. At that point, defendant kicked the officer right above his groin. As a result, Officer Herner attempted to place her under arrest. Defendant resisted by pulling her arms away and attempting to get away from the officer. After several minutes of struggling, Officer Herner was finally able to place her in handcuffs. While leading her back to his patrol vehicle, defendant yelled, "You f****** pig, I f****** hate you, I hope you f****** die you c*** s*****." She then spit in the officer's ear.

Once back at the station, defendant continued to yell at other officers and, once placed into a holding cell, she began slamming her head on the walls of the cell. After being charged, she posted bail and was released.

Defendant claims at the time of the alleged incident she was inordinately intoxicated. She believes that a toxic substance was surreptitiously placed in her drink by one of the bar's patrons. Defendant asserts that she has no recollection of the events of the evening in question.

Following the incident, defendant was indicted in a three-count indictment charging one count of fourth-degree aggravated assault on a police officer, contrary to N.J.S.A. 2C:12-1(b)(5)(a), one count of fourth-degree throwing bodily fluids, contrary to N.J.S.A. 2C:12-13, and one count of third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(3)(a).

On September 17, 2007, defendant applied for the PTI program and the Criminal Case Management Office made a referral for defendant's admission into PTI.

Upon review of the matter, the Prosecutor's Office rejected defendant's application for PTI. As stated earlier, there is no documentation in this record regarding this. Defendant's counsel claims he was informed by the Prosecutor's Office of the rejection and that the reason communicated to him was that the alleged victim, Police Officer Christopher Herner, objected.

Following defendant's rejection, she filed a motion to compel admission into the PTI program. The motion was heard on January 18, 2008. At that time, in response to the court's inquiry, the prosecutor stated that the State considered the nature of the offense and the victim's unwillingness to forego prosecution in concluding not to admit defendant into the PTI program. See N.J.S.A. 2C:43-12(e)(1) and (4). The prosecution made it clear that "there is no hard line rule [to deny admission to a defendant] just because [the victim] is a police officer."

Defense counsel argued that the seventeen criteria set forth in N.J.S.A. 2C:43-12(a) were not apparently considered by the prosecutor in coming to his conclusion to deny defendant admission into the PTI program and an examination of those factors would argue for admission.

The trial court, after hearing argument, stated:

I do find that because of the circumstances of this particular case that the State has failed to consider all of the factors that are involved here, including [defendant's] full history, including the fact that she was intoxicated and although that does not rise to a defense of this particular matter and it is indeed at her discretion that perhaps contributed to her behavior on that matter, I don't find that the State has fully considered all of the factors that would be under 2C:43-12 in making their determination to deny her application.

So I find that this denial is a patent and gross abuse of discretion on the part of the State and I am going to grant the appeal and allow the Pretrial Intervention participation.

The trial court then signed an order admitting defendant into the PTI program and the State's appeal followed.

On appeal, the State argues that the prosecutor's decision to reject defendant from the PTI program was not a patent and gross abuse of its discretion and, therefore, it was erroneous for the trial court to admit defendant into the program over the prosecutor's rejection. Defendant argues that the trial court's decision was appropriate given the factors set forth in N.J.S.A. 2C:43-12. Defendant also argues the State failed to comply with Rule 3:28(h).

PTI is "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). The scope of judicial review of a decision to reject a PTI applicant is "severely limited." State v.

Negran, 178 N.J. 73, 82 (2003). Great deference is to be given to a prosecutor's determination not to consent to diversion into a PTI program. State v. Lenonardis, 73 N.J. 360, 381 (1977).

It is only where a "defendant clearly and convincingly establish[es] that the prosecutor's refusal for sanction admission into the program was based on a patent and gross abuse of his discretion" that a trial court may admit a defendant into a PTI program over the objection of the prosecutor. Id. at 382.

Our Supreme Court has provided guidance as to what constitutes a patent and gross abuse of a prosecutor's discretion. In State v. Bender, the Court stated:

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.

[80 N.J. 84, 93 (1979) (internal citations omitted).]

The Court went on to note a trial court should ordinarily not order a defendant enrolled in PTI merely because it has concluded that the prosecutorial decision was based upon a consideration of inappropriate factors or not premised upon a consideration of all relevant factors. In such a case, the proper disposition will usually be to remand the matter so that the prosecutor may reassess defendant's eligibility in light of the court's rulings. [Id. at 94.]

In State v. Hoffman, we noted:

Prosecutors are guided by a number of different principles when determining whether a defendant qualifies for PTI. For example, N.J.S.A. 2C:43-12(e) lists seventeen factors that prosecutors "shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program." Included among these factors is the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), the "desire of the complainant or victim to forego prosecution," N.J.S.A. 2C:43-12(e)(4), and "[w]hether or not the crime is of an assaultive or violent nature,"

N.J.S.A. 2C:43-12(e)(10). Moreover, R. 3:28 provides eight "Guidelines," which prosecutors shall consider in determining whether PTI is appropriate. For instance, Guideline 3(i) states individuals who engage in crimes "deliberately committed with violence or threat of violence against another person . . . should generally be rejected."

"Although the Guidelines do represent a somewhat greater attempt to channel prosecutorial discretion than the statute, in the end it remains the responsibility of the prosecutor to weigh the various factors and to reach a determination." Wallace, supra, 146 N.J. at 586. Thus, a prosecutor must use his or her independent judgment to fully and fairly evaluate the weight to be given to each of the relevant factors. See State v. Dalglish, 86 N.J. 503, 510-11 (1981) ("Individual PTI applications turn on an assessment of the defendant's background, the circumstances of his [or her] crime, the likely value of supervisory treatment, and the prosecutor's current enforcement policy."); see also Wallace, supra, 146 N.J. at 589-90 ("A prosecutor has the prerogative to view seriously matters of domestic violence."). [State v. Hoffman, 399 N.J. Super. 207, 214 (App. Div. 2008).]

In this case it appears, contrary to N.J.S.A. 2C:43-12(c), that neither the prosecutor nor the trial court set forth their decisions and the reasons therefore in writing. Beginning with the Court's initial review of the PTI program in State v. Leonardis, 71 N.J. 85, 119 (1976), the Court has held that a statement of reasons for denial by a prosecutor should be in writing and afforded to all applicants for admission into a PTI program. This requirement is embodied in the statute and has been restated by the Court in many cases. See, e.g., State v. Wallace, 146 N.J. 576 (1996); State v. Caliguiri, supra, 158 N.J. 28. It appears that neither we, the trial court, or defendant were afforded the prosecutor's written statement of reasons for denial of defendant into the program. Accordingly, we cannot presume that the prosecutor considered all of the relevant factors, nor do we have the Criminal Case Manager's findings which might have demonstrated defendant's "compelling reasons" for her admission.

We agree with the trial court that, based on the record before it, it did not appear that the prosecutor considered all of the relevant factors. This was by definition an abuse of discretion. We are not prepared, however, to say at this time that the refusal to admit defendant into the PTI program was a patent and gross abuse of discretion. We, therefore, do not agree that the appropriate remedy was to order the prosecutor to accept defendant into the PTI program.

We find that given the posture of this matter it should be remanded by the trial court to the prosecutor for a reconsideration of defendant's application. See State v. Dalglish, supra, 86 N.J. at 509-10 (A court may remand a PTI application to the prosecutor if the remand will serve a useful purpose and the decision to reject the application is arbitrary, irrational, or an abuse of discretion.) On remand, defendant must show compelling reasons to permit her admission into PTI. State v. Caliguiri, supra, 158 N.J. at 44. As we have noted, "even absent a patent and gross abuse of discretion, a decision to reject an applicant from PTI could be so deficient as to justify reconsideration of the application." State v. Kern, 325 N.J. Super. 435, 439 (App. Div. 1999).

Accordingly, we agree with the trial court's determination that the prosecutor failed to consider all the appropriate factors in this case. We agree that the prosecutor's decision was arbitrary, irrational, or an otherwise abuse of discretion. We conclude, however, that based on the meager record before us, the prosecutor's decision was not a patent or gross abuse of discretion. We also anticipate that a remand to the prosecutor will serve a useful purpose.*fn2 Therefore, the order of the trial court is reversed and the matter remanded to the trial court so that it may further remand the matter to the prosecutor for proceedings consistent with this opinion. We do not retain jurisdiction.

Reversed and remanded.

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