March 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SOLOMON N. PETERS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-00038-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Fisher and King.
In this appeal, we reverse the trial judge's order that set aside the prosecutor's rejection of defendant for enrollment in the pretrial intervention program (PTI).
The record reveals that Officer Thomas Valente of the Bedminster Police Department responded to a call for assistance at Rattlesnake Bridge Road near Interstate 78. Upon his arrival, Officer Valente observed a 1995 BMW with New York plates stuck in mud and snow. Defendant was standing next to the vehicle while his female passenger, Jazmyn Yearwood, remained in the front passenger seat.
After calling for a tow truck, Officer Valente asked for driving credentials. Defendant stated that Yearwood, who only had a learner's permit, was driving; he also advised the officer that his license was suspended. Yearwood told the officer she had no driving credentials. Upon further investigation, Officer Valente confirmed that defendant's New York license was suspended and, also, learned that defendant was wanted as a fugitive from Maryland.
Defendant and Yearwood were taken to police headquarters, as was defendant's vehicle, which had to be towed. Yearwood consented to a search of the vehicle; inside the trunk was a shopping bag and inside the shopping bag was a sealed plastic bag, which contained five and three-quarter ounces of marijuana. Yearwood was placed under arrest.
After being advised of his Miranda*fn1 rights, defendant gave a statement in which he admitted he was driving the vehicle and that the marijuana belonged to him. Defendant was later indicted and charged with third-degree possession of over one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(11), and fourth-degree possession of over 50 grams of marijuana, N.J.S.A. 2C:35-10a(3). Defendant was also issued three motor vehicle summonses.
Defendant's application for enrollment in the pretrial intervention program (PTI) was rejected by the prosecutor, who explained that the offenses charged were part of a continuing pattern of antisocial behavior, which included assault and reckless endangerment charges pending against him in Maryland. When defendant appealed his rejection, the prosecutor provided a more detailed explanation, including the following analysis:
An analysis of the Guidelines in R. 3:28 and of the factors listed in N.J.S.A. 2C:43-12e demonstrates that defendant is not an appropriate candidate for [PTI].
To allow defendant into [PTI] would circumvent Guideline 1 to R. 3:28. Guidelines 1(a), (b) and (e) all speak to deterring future criminal behavior. As the PTI rejection indicates, defendant has a pending assault and reckless endangerment case from the State of Maryland. Defendant was wanted as a fugitive on that case. He was driving the car while his license was suspended. Thus, his prior arrest has not deterred him from engaging in crime. The fact that his license has been suspended has not deterred him from not only driving, but also transporting narcotics.
The considerations in N.J.S.A. 2C:43-12e and Guideline 3 also demonstrate that this defendant is not an appropriate candidate for PTI.
Among  those considerations are N.J.S.A. 2C:43-12e(1) and (2), the nature of the offense and the facts of the case. Here defendant was in possession of almost six ounces of marijuana for its intended distribution. The distribution of drugs is quite serious. That also implicates N.J.S.A. 2C:43-12e(7), the need of society to prevent the scourge of drugs, especially from those who desire to sell them.
The criminal division manager correctly cited defendant's engaging in a continuous pattern of anti-social behavior. N.J.S.A. 2C:43-12e(8). Defendant's pending case in Maryland demonstrates this factor, along with his insistence on driving an automobile while his license was suspended . . . .
Also applicable is N.J.S.A. 2C:43-12e(12). His pending case in Maryland exhibits a history of the use of physical violence toward others.
Also to be considered are N.J.S.A. 2C:43-12e(14) and (17). Subdivision 14 states, "whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution." Subdivision 17 states, "whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program." There is quite a need to prosecute those who choose to sell drugs. Abandoning the prosecution of a drug distribut[o]r would surely harm society. Allowing this defendant into PTI is just not appropriate.
The trial judge concluded that the prosecutor did not consider all the relevant factors in rejecting defendant's PTI application. The judge found that the prosecutor should not have relied upon the pending Maryland charge, that multiple criminal acts are not a per se bar from PTI eligibility, and that the charges here "seem closely intertwined with [defendant's] admitted drug dependency," which should also have been considered by the prosecutor. Accordingly, the judge referred the matter to the prosecutor "for reconsideration in light of those factors."
After reconsidering, the prosecutor reached the same conclusion, describing the weight and relevance given to all the factors set forth in N.J.S.A. 2C:43-12e. In reviewing the prosecutor's amplified decision to reject defendant's PTI application, the trial judge concluded that "it's a patent and gross abuse of discretion to rely solely on a charge of which he has not been convicted to exclude him from PTI."
The State appeals from the July 10, 2008 order that overruled the prosecutor's decision to reject defendant from PTI.
A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). As a result, we review de novo such a decision. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (holding that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference").
In reviewing the trial court's decision, we are mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant that decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). Accordingly, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited, State v. Bender, 80 N.J. 84, 89 (1979), and "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness,'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). In light of this standard, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:
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. [Bender, supra, 80 N.J. at 93 (citation omitted).]
With these principles in mind, we conclude that the judge impermissibly substituted her opinion of defendant's suitability for PTI for that of the prosecutor, who by statute and court rule is entrusted with the responsibility of deciding whom to prosecute and whom to divert. Where, as here, the prosecutor's decision is "based on appropriate factors and rationally explained," this court "does not have the authority . . . to substitute [its own] discretion for that of the Prosecutor." Nwobu, supra, 139 N.J. at 253 (citation omitted).
In her oral decision, the judge referred to the unadjudicated Maryland charge as the sole basis for the prosecutor's decision and as a factor that should have been given no weight. The judge's view of that charge and its significance was mistaken for two chief reasons.
First, our review of the prosecutor's determination reveals that this was not the sole basis for denying the application. The prosecutor not only incorporated the nature of the Maryland charge in his decision, but also referred, among other things, to: the nature of the crime charged here; the fact that defendant was a fugitive from Maryland; that, when confronted by Officer Valente, defendant lied and attempted to inculpate Yearwood; and the fact that defendant was driving with a suspended license.*fn2 We also observe that the judge mistakenly viewed the offenses charged here as "victimless" crimes. This overlooks the fact that defendant was charged with possession of marijuana with the intent to distribute. The prosecutor was correct to view this charge as more than a victimless crime.
Second, the trial judge was mistaken in concluding that the prosecutor was not entitled to consider the nature of the charges pending in Maryland because defendant had not yet been tried on those charges. In State v. Brooks, 175 N.J. 215, 228 (2002), the Court explained that the prosecutor is entitled to take into account a defendant's arrest record and "adult histories that contain dismissed offenses." In quoting from State v. Pickett, 186 N.J. Super. 599, 608 (Law Div. 1982) (Long, J.), the Court explained that "'the difficult judgmental function which is required of the director in attempting to assess human nature in order to evaluate the potential for rehabilitation can only be aided by the free flow of information.'" Brooks, supra, 175 N.J. at 229. In short, the prosecutor is "not required to wear blinders" in assessing the matter, State v. Marzolf, 79 N.J. 167, 185 (1979), and may consider "'many factors, including an arrest record," because that information "contribute[s] toward the composite picture of the 'whole man,'" which lies at the heart of the prosecutor's determination, Brooks, supra, 175 N.J. at 228 (quoting State v. Green, 62 N.J. 547, 566 (1973)).*fn3
For these reasons, we conclude that the trial judge mistakenly viewed far too narrowly the factors the prosecutor was entitled to consider. Moreover, the judge's conclusion that defendant was entitled to admission into PTI was not hers to make. DeMarco, supra, 107 N.J. at 566. Once the prosecutor has made that decision, judicial review, as we have observed, is "available to check only the most egregious examples of injustice and unfairness." Ibid. (citation omitted). Here, the judge acknowledged the deferential standard that applies to judicial review of a prosecutor's rejection of a PTI application. It is readily apparent, however, that the judge did not afford the prosecutor that deference. The judge mistakenly eliminated some of the factors the prosecutor was entitled to consider, reweighed the proofs and reanalyzed the statutory factors as if she, rather than the prosecutor, was the person entrusted with this sensitive decision.
"Striking the proper balance between the retributive and rehabilitative functions of criminal law is very difficult." Nwobu, supra, 139 N.J. at 260. That decision "lies, in the first instance, with the prosecutor." Ibid. Because the trial judge engaged in her own interpretation of the circumstances and did not examine the prosecutor's determination through application of the highly deferential standard required, we are compelled to reverse.