On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-06-0454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and C.L. Miniman.
Defendant was indicted for possession of cocaine contrary to N.J.S.A. 2C:35-10a(1) and applied for admission into the pre-trial intervention program (PTI). The prosecutor rejected his application and, after a hearing on November 8, 2007, the judge denied defendant's application to compel admission into PTI. Defendant thereafter entered a guilty plea to the indictment and was sentenced to probation for three years with 120 days in the county jail as a condition of probation. This appeal followed.
Defendant raises a single issue on appeal:
THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT.
PTI is governed by N.J.S.A. 2C:43-12 and Rule 3:28, with its accompanying PTI guidelines, which set forth the "purposes, goals, and considerations relevant to PTI." State v. Brooks, 175 N.J. 215, 223 (2002). Admission is contingent on a positive recommendation from the criminal division manager serving as the PTI director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). Decisions on PTI applications are based on a defendant's amenability to rehabilitation and are highly individualistic. Ibid. The evaluation for PTI must be based on the criteria of the statute and the PTI guidelines. State v. Negran, 178 N.J. 73, 80-81 (2003).
Prosecutors are given wide latitude in deciding who to divert and who to prosecute. State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993) (quoted with approval in Nwobu, supra, 139 N.J. at 246). This deference is "enhanced" or "extra" in nature. State v. Baynes, 148 N.J. 434, 443-44 (1997) (citations omitted). We review the exercise of this discretion for only the "most egregious examples of injustice and unfairness." State v. Leonardis, 73 N.J. 360, 384 (1997); accord State v. DeMarco, 107 N.J. 562, 566 (1987); Kraft, supra, 265 N.J. Super. at 111.
A prosecutor's discretion is not limitless. Brooks, supra, 175 N.J. at 225. The prosecutor must provide a clear statement of reasons for the denial, N.J.S.A. 2C:43-12f; Current N.J. Court Rules, PTI Guideline 8 to R. 3:28 (2009), in order to "facilitate judicial review, assist in evaluating the success of the PTI program, afford to defendants an opportunity to respond, and dispel suspicions of arbitrariness." Negran, supra, 178 N.J. at 82 (citations omitted). A defendant seeking judicial review must "'clearly and convincingly establish that the prose-cutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion' before a court [can] suspend criminal proceedings under Rule 3:28 without prosecutorial consent." State v. Dalglish, 86 N.J. 503, 509 (1981) (quoting Leonardis, supra, 73 N.J. at 382).
The phrase "abuse of discretion" is frequently used in judicial discourse, but nevertheless defies precise definition. Ordinarily, an abuse of discretion will be manifest if defendant can show that a prose-cutorial 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) (citations omitted).]
Enrollment in PTI was rejected by the PTI director on August 1, 2007, because defendant's record indicated that he had been "sentenced to two periods of probation supervision which would preclude admission to the PTI Program." Those two periods of probation were on December 3, 2001, for shoplifting and on January 26, 2005, for failing to give a controlled dangerous substance (CDS) to police. The prosecutor concurred in the rejection.
When defendant moved to compel his admission into PTI, the prosecutor argued that his admission would circumvent Guideline 1 to Rule 3:28 because of his criminal history, which included an arrest in 1988 for simple assault and six separate convictions for disorderly persons offenses: 1992 in West Caldwell for shoplifting; 1996 in Plainsboro twice for shoplifting; 1997 in Woodbridge for shoplifting; 2001 in Middlesex County Superior Court for shoplifting, having initially been charged with robbery; and 2005 in Piscataway for failure to give CDS to police. Defendant also had a 2002 violation of probation, resulting in an extension of probation. The prosecutor argued that PTI would not deter defendant from future offenses and that his history demonstrated a continuous pattern of antisocial behavior, a relevant consideration for denying PTI under N.J.S.A. 2C:43-12e(8). The prosecutor further argued that N.J.S.A. 2C:32-12e(14) and -12e(17) supported rejection from PTI because the value of treatment was outweighed by the need for prosecution and the harm from abandoning prosecution outweighed the benefits to society from PTI.
In ruling upon defendant's motion to compel admission into PTI, Judge Julie M. Marino placed a thorough and well-reasoned decision on the ...