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State v. Lowe

December 23, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
SIR FREDERICK LOWE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3474.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2008

Before Judges Stern and Lyons.

This is an appeal by the State, pursuant to Rule 3:28(f), from an order admitting defendant Sir Frederick Lowe into the Essex County Pretrial Intervention (PTI) Program over the objection of the Essex County Prosecutor's Office. On appeal, the State contends that the trial court improperly "engaged in de novo review of the defendant's application" and discounted the prosecutor's stated reasons for denying entry into the program. Based on our review of the record and the applicable law, we conclude the prosecutor's decision to reject defendant's application was not a patent and gross abuse of discretion, and we reverse the order admitting defendant into PTI. The following procedural and factual history is relevant to our consideration of the issues advanced on appeal.

On January 29, 2007, police arrested defendant, then a juvenile, in Woodbridge, where he resided, for unlawful taking of means of conveyance, specifically, entering or riding in a motor vehicle, knowing that the motor vehicle had been taken without the consent of its owner. N.J.S.A. 2C:20-10. On April 5, 2007, the trial court adjudicated defendant delinquent on that charge and sentenced him to a one year deferred disposition, with the condition that he attend school with no unexcused absences, tardiness or suspensions and that he listen to his mother.

On April 29, 2007, at approximately 2:45 p.m., twenty-four days after the trial court granted defendant deferred disposition, Police Detectives R.M. Hudson and L. Flanagan were dispatched to South Munn Avenue in East Orange in response to a suspicious persons report concerning three males in a dark blue/black Lexus. Upon arrival, the officers immediately observed the reported vehicle and ran a license plate check, which revealed that the Lexus had been reported stolen. The officers, who were driving an undercover vehicle, parked their car and approached the Lexus on foot.

As they approached, defendant, the driver of the stolen vehicle, backed the car out of his parking spot and began to drive forward. The officers then drew their service weapons and ordered defendant to stop the vehicle. At this point, defendant began to drive toward Detective Flanagan. The detective was standing directly in front of a building and was forced to scale two parked cars in order to avoid the oncoming vehicle. The officers again ordered defendant to stop and remove the key from the ignition. Defendant complied and the officers removed all three suspects and placed defendant under arrest. A search of the car revealed marijuana and $374 in cash. The officers arrested one other suspect, and released the other, who was a juvenile, into the care of his mother.

On October 11, 2007, an Essex County Grand Jury returned Indictment No. 2007-10-3474, charging defendant with fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b (count one); and third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count two). On June 5, 2007, defendant submitted his application for the Essex County PTI Program and on December 20, 2007, Criminal Case Management (CCM) recommended defendant for enrollment.

In a four-page memorandum rejecting defendant's PTI application, the Essex County Prosecutor's Office outlined the reasons for denying defendant's application into the program:

It is appropriate for the State to consider the nature of the offense when evaluating an application for PTI. N.J.S.A. 2C:43-12e(1); Guideline 3(i) of R. 3:28. In the present matter, it is alleged that the defendant attempted to strike East Orange Police Detective Flanagan with a stolen vehicle. The fact that the victim was a police detective makes the offense even more serious and shows that the defendant has no respect for public servants. . . . To abandon criminal prosecution of a defendant who attempts to cause injury to a public servant who is conducting himself appropriately would have the opposite effect of deterring this kind of criminal conduct. [. . .]

Additionally, admission of an applicant into Pre-trial Intervention is measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense. N.J.S.A. 2C:43-12(5)b; State v. Leonardis, 71 N.J. 85 (1976). As mentioned previously, the defendant was arrested for this crime just twenty-four days after being granted the benefit of a deferred disposition in a similar case involving a stolen vehicle. [...] It is evident that his prior experiences with the juvenile justice system, which is based upon a rehabilitative model of punishment, have not deterred him from committing the present offense. [...]

While noting defendant had presented mitigating factors, such as his age and his lack of adult convictions,*fn1 in support of his application, the prosecutor found they were "overwhelmingly" outweighed by the applicable aggravating factors, particularly N.J.S.A. 2C:43-12e(1), the nature of the offense; N.J.S.A. 2C:43-12e(2), the facts of the case; N.J.S.A. 2C:43-12e(7), the needs and interests of the victim and society; N.J.S.A. 2C:43-12e(10), the assaultive or violent nature of the crime; N.J.S.A. 2C:43-12e(14), the public need for prosecution; and N.J.S.A. 2C:43-12e(17), the harm done to society by abandoning criminal prosecution outweighs the benefits to society from channeling an offender into a supervisory treatment program.

Defendant appealed the prosecutor's decision pursuant to Rule 3:28(h). Following oral argument, the trial court admitted defendant to the PTI, "subject to him entering a plea." The court's decision included the following: "[t]he only factor that the State has articulated today for rejecting him in that PTI Program is 24 days before, a deferred disposition for which he didn't receive any type of services, which I think is appalling. Had he received some, maybe we ...


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