July 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY W. HOBOR, III, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-11-776.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2009
Before Judges Skillman and Grall.
Following the trial judge's rejection of the defendant's challenge to the prosecutor's denial of admission to the Pretrial Intervention Program (PTI), defendant Anthony W. Hobor, III, pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). In accordance with a plea agreement, a separate complaint charging defendant with possession of marijuana and drug paraphernalia, N.J.S.A. 2C:35-10a(4) and N.J.S.A. 2C:36-2, was dismissed and defendant was sentenced to a three-year term of probation, fifty hours of community service and a suspended ninety-day term of imprisonment in county jail. Appropriate fines, assessments, fees and penalties were also imposed. As authorized by Rule 3:28(g), defendant now challenges the trial judge's denial of his appeal from the prosecutor's decision on PTI.
On September 10, 2007, Officer Frederick Fittin of the South Bound Brook Police Department investigated a complaint about conduct on a street corner. As Fittin approached a group gathered there, he detected the odor of burnt marijuana. In response to Fittin's inquiry about marijuana, defendant handed the officer a cigarette pack that contained that drug and a smaller bag of cocaine. When questioned about the cocaine, defendant told Fittin he forgot he had it. Defendant was arrested and released on his own recognizance.
On September 15, Officer Fittin stopped a speeding car. Defendant was driving. As Fittin approached the vehicle, he smelled marijuana. Defendant explained that he had not yet had a chance to remove the drugs from his car after his arrest. He consented to a search of his vehicle, and Fittin found three burnt marijuana cigarettes, three plastic bags of cocaine and two that held marijuana and rolling papers.
On November 8, 2007, defendant was indicted and charged with third-degree possession of a controlled dangerous substance. On November 19, he applied for admission to PTI.
Defendant had no prior criminal convictions. In December 1999, when he was sixteen years of age, defendant was adjudicated delinquent. He was subsequently convicted of violating a local ordinance prohibiting presence in a public park after hours. Defendant had attended college and for eight months had been employed in his father's construction business. Letters submitted on defendant's behalf included references to his good character, acts of kindness and his ability to pass drug tests administered by his employer.
On November 30, 2007, the PTI Director denied defendant's application. The notice of rejection prepared by the Director indicated the following reasons for denial:
Your prior record indicates you had been sentenced to a period of probation supervision which would preclude admission to the PTI Program and illustrates rehabilitation was not achieved. Criminal records indicate on 9/01/1999 you were arrested in North Brunswick, NJ . . . . On 12/13/1999 you were adjudicated delinquent . . . and placed on probation for one year and assessed $45.00.
We have taken into consideration your background and the circumstances provided by you pursuant to [N.J.S.A.] 2C:43-12 et seq. in reaching this decision.
For the reasons stated by the PTI Director and without further elaboration, the prosecutor agreed that the Director's rejection was appropriate.
As authorized by N.J.S.A. 2C:43-12f and Rule 3:28(h), defendant filed a challenge to the denial of his application for PTI in the Law Division. Relying on State v. Wallace, 146 N.J. 576, 584 (1996) and State v. Nwobu, 139 N.J. 236, 249 (1995), defendant contended that the prosecutor's statement of reasons was inadequate and demonstrated the prosecutor's failure to consider the nature and circumstances of his non-violent crime and the positive aspects of his character evidenced by his interactions with Officer Fittin and his employment. He also argued that the prosecutor improperly considered his supervision on juvenile probation nine years earlier.
The trial judge remanded and asked the prosecutor to explain his reliance on defendant's juvenile adjudication and probation and address circumstances favoring PTI such as defendant's cooperation with the police at the time of his recent arrests.
In a supplemental statement of reasons incorporated in a letter brief, the prosecutor explained:
Defendant was properly rejected admission into the PTI program after a careful and thorough consideration of all of the facts related to this matter. The State determined that based upon an evaluation of the individual characteristics of the defendant, the facts alleged in his complaints, and recommendation of the PTI Director, the defendant is not an appropriate candidate for the PTI program.
The fact that defendant was again found to be in possession of cocaine, five days after he was first arrested for possession of cocaine, is significant. It indicates defendant lacks the necessary attitude, character and motivation to be effectively rehabilitated through the PTI program. Further, during both arrests, defendant was in possession of marijuana. Indeed, during his second arrest, the odor of marijuana was present and defendant was driving a car. As a result, defendant requires more strict supervision than PTI can offer and is an inappropriate candidate for the program.
With regard to the [c]court's determination that defendant's prior juvenile adjudication . . . was too remote in time to be considered as a basis for rejection of defendant's PTI application, the State respectfully disagrees. In conjunction with defendant's two separate drug arrests, it is clear that the period of probation supervision that defendant received as a juvenile was not sufficient to effectively rehabilitate him.
Recognizing the deference a court must give to the prosecutor's decision, Wallace, supra, 146 N.J. at 582-83, 589, the judge rejected defendant's challenge.
Admission to PTI is authorized by statute and court rule. N.J.S.A. 2C:43-12 to -22; R. 3:28; see Wallace, supra, 146 N.J. at 582 (noting that the standards are generally similar). Because "diversion is a quintessentially prosecutorial function," courts intervene only when "a defendant can 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)). "A 'patent and gross abuse of discretion' is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Id. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). The prosecutor's denial meets that standard when the 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. [Id. at 583 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]
The prosecutor must explain the denial. The requisite statement of reasons serves four primary purposes: (a) it facilitates effective judicial review, (b) it assists in evaluating the success of the PTI program, (c) it affords the defendant an opportunity to prepare a response, and (d) it dispels suspicions of arbitrariness. In addition, [that] requirement . . . tends to protect against the consideration of inappropriate factors and promotes reasoned decision-making. [Id. at 584 (citations omitted).]
Taken together, the prosecutor's explanations are sufficient. They identify "the factors present in defendant's background or the offense purportedly committed which led [the prosecutor] to conclude that admission should be denied." Nwobu, supra, 139 N.J. at 249 (internal quotations omitted). Although the prosecutor did not discuss every factor, courts "must assume, absent evidence to the contrary," that the prosecutor considered them before reaching a decision. Ibid.
As we understand the prosecutor's reasons, he concluded that the sequence of these crimes and defendant's prior contact with the juvenile justice system demonstrated a nonchalant attitude about compliance with the law which was best addressed by prosecution rather than diversion. Thus, the denial is based upon the facts and circumstances of the two criminal episodes at issue and those relevant to defendant's character and motivation. See N.J.S.A. 2C:43-12b, e.
Defendant asserts that the denial of his application is the product of an erroneous categorical disqualification based on his term of juvenile probation nine years earlier. See State v. Caliguiri, 158 N.J. 28, 32 (1999) (disapproving categorical denial based on the crime at issue); State v. Halm, 319 N.J. Super. 569, 571 (App. Div.) (same), certif. denied, 162 N.J. 131 (1999). There is no support for that claim. While denial of admission based on Guideline 3(e) of Rule 3:28, pursuant to which applications filed by defendants who have completed probation within five years are ordinarily rejected unless supported by the prosecutor, would have been improper in this case, that Guideline does not require admission of defendants who have not been on probation within the past five years. More important to these argument based on Caliguiri and Halm, defendant's juvenile probation was not the sole reason for, but simply one factor relevant to, the prosecutor's decision. This was not a categorical denial.
Defendant claims the trial judge erred in upholding the prosecutor's decision because thirteen of the eighteen factors enumerated in N.J.S.A. 2C:43-12e, some of which the prosecutor did not expressly address, weigh heavily in favor of his admission to PTI. He notes that his crimes involving possession of drugs are less serious than crimes involving distribution and did not involve co-defendants, organized criminality or violence, and he emphasizes that his prior record includes no criminal convictions. See N.J.S.A. 2C:43-12e. He further contends that the prosecutor did not consider favorable evidence such as his cooperation with the arresting officer, his regular employment, the acts of kindness described by his friends and family members, his possible addiction and the law-abiding life he led during the nine years between his juvenile adjudications and these crimes.
Defendant's arguments overlook the standards for judicial review that were developed "with careful attention to the preservation of the traditional role of the prosecutor." Wallace, supra, 146 N.J. at 584-85. As noted above, we must "presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary." Id. at 584. Defendant has not made that showing. Neither his surrender of drugs to an officer who already had detected the odor of marijuana nor his employment and good deeds were so plainly indicative of positive attitude and motivation as to compel admission to PTI despite defendant's possession of illegal drugs on two occasions, one during his release on pending charges. Further, his claim of mitigating addiction was contradicted by his employer's report about negative drug tests.
In the end, this case raises no concern other than the weight the prosecutor gave to the relevant factors. But N.J.S.A. 2C:43-12 and Rule 3:28 leave the responsibility for valuing the factors to the prosecutor, and a court's disagreement with the prosecutor's assessment is not a justification for disturbing a decision to prosecute rather than divert. Wallace, supra, 146 N.J. at 585-86. Judicial intervention based on balancing is permitted when the prosecutor "has so inappropriately weighted the various considerations so as to constitute a clear error in judgment." Id. at 586 (internal quotations omitted).
Like the trial judge, we find no clear error in this prosecutor's decision.
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