August 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE A. ADAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 22, 2009
Before Judges Reisner and Sapp-Peterson.
A Monmouth County grand jury indicted defendant, George A. Adams, on seven counts of drug-related offenses. On April 2, 2007, defendant appeared before Judge Kreizman and entered into a plea agreement under which he agreed to plead guilty to the charge of possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. In exchange, the State agreed to recommend a three-year custodial sentence with no parole disqualifier, noting that defendant fit the "criteria and qualifies for a flat or what will be... called an open offer" pursuant to State v. Brimage, 153 N.J. 1, 14 (1998). Judge Kreizman indicated that he would sentence defendant to a non-custodial term.
The plea agreement also indicated that "defendant [is] to apply to PTI*fn1 today." When the judge learned of this provision, however, he voiced his objection and advised that "if [defendant] makes an application, my deal's off. As simple as that." In light of this development, the court took a recess to afford defense counsel an opportunity to discuss the matter with defendant. When the matter reconvened defense counsel advised the court that "in light of Your Honor's comments, my client's obviously not going to apply for PTI today." Defendant proceeded to enter a formal plea in accordance with the plea agreement. Thereafter, Judge Kreizman explained why he objected to defendant applying for admission into PTI:
The Prosecutor made an offer of three years flat, and I said that because Mr. Adams had no prior record that I would place him on probation; however, there was a request that they applied [sic] for pretrial intervention. I didn't think that was at all appropriate. He faced a significant jail sentence in this case. If not for my interceding and agreeing to probation, and I think he belongs on probation, not pretrial intervention. He sold drugs. He should have a criminal history because of that, whether it be a small amount, a big amount.
The Asbury Park area is... just inundated with buyers and sellers of drugs, violence, all kinds of things and somebody who gets himself into the position where he's selling drugs within a thousand feet of a school should have a criminal history and should be placed on some pretty intensive supervision.
So that's my reason for saying that I would - - not go along with my recommendation or my promise if he did apply for presentence - - pretrial intervention rather.
On May 18, 2007, defendant applied for admission into PTI. The probation officer who processed defendant's application opined that defendant "[did] not appear to be truthful about his prior criminal history" but nonetheless "cautiously" recommended that he be admitted to the program "as [defendant] has minimal involvement with the law, appeared motivated, and is a full[-] time college student who has taken responsibility for the present offense and is trying to further his education and move forward with his life."
The Monmouth County Prosecutor's Office (Prosecutor) rejected the application, citing: (1) the facts of the case; (2) the fact that defendant dispensed a Schedule I and II drug and was not himself drug dependant; and (3) defendant's absence of motivation to succeed in the program evidenced by defendant's failure to provide proof of educational pursuits to the PTI investigator despite being asked to do so and his denial of any prior criminal involvement, although his criminal history revealed two prior arrests in New York, one of which occurred following his application for admission into PTI.
Defendant appealed the rejection of his PTI application to the Law Division, arguing that the Prosecutor considered inappropriate factors. The matter was heard before a different judge. Judge DeStefano reviewed the statement of defendant's co-defendant that defense counsel had secured following the Prosecutor's rejection of defendant's application. In a written opinion issued November 9, 2007, Judge DeStefano found that the Prosecutor "was wrong to consider the co-defendant's statement as evidence that the defendant's drug sale was a series of ongoing transactions." The judge then found:
The prosecutor was correct however in assessing the next two factors. The fact that the defendant lied about having two prior arrests does raise doubts about his motivation to follow through in the PTI program. Under Guideline 3(i), it states that a person who is charged with the sale of Schedule I or II narcotic drugs who are not drug-dependent, such as this defendant, should not ordinarily be entered into PTI.
That adds to an already high threshold that a defendant must establish in proving that "fundamental fairness and justice require judicial intervention." [State v.] Wallace, 146 N.J. [576,] 582-83 [(1996)]. There may be adequate justification to reject the defendant from PTI based on the second and third factors alone. But because one-third of the prosecutor's reasoning was based on an incorrect and unproven factual basis to justify rejection, the case must be remanded for reconsideration. State v. Caliguiri, 15 N.J. 28, 37 (1999) (where prosecutor considers inappropriate factors, a court may remand for reconsideration).
This Court finds that the defendant's rejection from PTI did not represent a patent and gross abuse of discretion by the prosecutor, but finds that the prosecutor was mistaken in her understanding of the facts of the case. Therefore, the defendant's motion appealing [his] PTI rejection is REMANDED for further consideration.
Upon reconsideration, the Prosecutor continued to reject defendant's application, advising the court that the investigative report prepared on behalf of defendant dated January 28, 2008 was "not reliable." Specifically, the Prosecutor urged the report lacked "even the simplest foundation as to its veracity."
The court conducted a second hearing on the application on February 7, 2008,*fn2 at which time the court adopted its earlier written opinion of November 9, 2007 and concluded that the Prosecutor relied upon: relevant factors in rejecting defendant's PTI application along with three pertinent statutory criteria. This Court finds that because the defendant's rejection from PTI did not represent a patent and gross abuse of discretion by the prosecutor, the defendant's motion appealing the rejection is denied for the reasons stated in the opinion, which is adopted by reference and made a part of the record.
The present appeal followed.
Defendant's sole argument on appeal is that the trial court's affirmance of the Prosecutor's rejection of defendant's PTI application is a gross abuse of discretion. We disagree and affirm substantially for the reasons expressed by Judge DeStefano in his cogent and well-reasoned written opinion of November 9, 2007, which he incorporated by reference in his oral opinion of February 7, 2008.
In State v. Caliguiri, supra, our Supreme Court described PTI as "a discretionary program diverting criminal defendants from formal prosecution." 158 N.J. at 35. Admission into PTI is governed by both statute, N.J.S.A. 2C:43-12, and Rule 3:28. The scope of judicial review of a decision to reject a PTI application is "'severely limited,'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Our interference in a court's decision upholding the denial of an application is reserved for those cases in which it is needed "to check... the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Thus, the standard we employ in our review of PTI decisions has been referred to as "'enhanced'" or "'extra'" deference. State v. Baynes, 148 N.J. 434, 443 (1997) (quoting Kraft, supra, 265 N.J. Super. at 111). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty.
A defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "patent and gross abuse of... discretion." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002). Applying this test, if a rejected defendant can prove that the decision "(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," then an abuse of discretion would "[o]rdinarily... be manifest." State v. Bender, 80 N.J. 84, 93 (1979).
Based upon this record, we discern no such abuse. At the outset, the plea agreement called for defendant to serve a flat three-year custodial sentence but the court indicated that it would impose a non-custodial probationary sentence provided defendant did not apply for admission into PTI, a condition defendant accepted. Despite his acceptance of this condition, defendant applied for admission into PTI one month later. A prosecutor other than the prosecutor who participated in the plea negotiations handled the PTI application and rejection. When defendant appeared for sentencing one-year later, defense counsel pointed out to Judge Kreizman that "under Paragraph 20 of the... plea agreement, this Court promised that he would... place... my client on straight probation." The court agreed and sentenced defendant to probation despite defendant's apparent breach of the representation that he would not apply for PTI admission.
In our view, defendant's agreement not to apply for admission into PTI as a condition for receiving a non-custodial probationary sentence was an express waiver of his right to apply to PTI. See State v. Owens, 381 N.J. Super. 503, 508-09 (App. Div. 2005) (upholding the trial court's refusal to entertain defendant's post-plea challenge to indictment where defendant's guilty plea operated as a waiver of defendant's right to challenge the indictment). Moreover, the facts here are distinguishable from an appeal of a PTI rejection pursuant to Rule 3:28(g) where, typically, a defendant has pled guilty after a PTI application has been rejected, thus preserving the defendant's right to seek further review. State v. Frangione, 369 N.J. Super. 258, 260 n.1 (App. Div. 2004).
Turning to the merits of the defendant's argument, however, there were sufficient facts in the record supporting the decision to deny his admission into PTI. The Prosecutor appropriately balanced the fact that defendant had no other indictable convictions and had accepted responsibility for his conduct against the nature of the offense, the fact that defendant was a non-drug dependent offender who distributed drugs, his lack of candor in disclosing his criminal history, and his apparent initial lack of diligence in providing appropriate documentation requested by the probation investigator relating to his educational pursuits. Consideration of these factors alone provided a basis for rejection of defendant from PTI, without regard to whether defendant had engaged in prior drug sales, a factor Judge DeStefano properly concluded the Prosecutor should not have considered. However, the otherwise appropriate reasons expressed by the Prosecutor were not "so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require[ed] judicial intervention." Wallace, supra, 146 N.J. at 582-83. We are therefore not persuaded that Judge DeStefano erred when he concluded "defendant's rejection from PTI did not represent a patent and gross abuse of discretion by the prosecutor[.]"