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State v. S.B.

October 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
S.B.*FN1, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 07-08-1222.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2009

Before Judges Stern and Sabatino.

Following the trial court's denial of his motion to compel admission into the Pretrial Intervention Program ("PTI"), defendant S.B. pled guilty to an accusation charging him with third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). Pursuant to a plea agreement, the trial court sentenced defendant to one year of non-custodial probation, and also imposed various customary fines and costs. Defendant now appeals the court's rejection of his PTI application and his ensuing conviction. We affirm.

The pertinent facts that led to defendant's prosecution are as follows. At about 5:30 P.M. on February 22, 2007, two officers of the Port Authority of New York and New Jersey responded to a report of a firearm discovered by TSA personnel within the luggage of an airline passenger at Newark Liberty International Airport. When the Port Authority officers arrived at the luggage screening area, they were informed that an X-ray operator had spotted the lower receiver of a .22 caliber semi-automatic handgun in checked luggage belonging to defendant. The handgun was wrapped inside of a sock. Eleven rounds of ammunition, a magazine and other parts to the handgun were discovered in another one of defendant's bags.

Defendant, who had a plane ticket to Amsterdam, was instructed to report to the baggage screening area, where he was given Miranda*fn2 warnings by the Port Authority officers. When questioned about the handgun found in his luggage, defendant initially denied that it was his. However, defendant eventually admitted the gun belonged to him and he was placed under arrest.

The Port Authority officers transported defendant to the airport administration building, where he was searched and his property was inventoried and secured. During their inventory of defendant's possessions, the Port Authority officers found, among other things, a topographical map of Sierra Vista, Arizona; materials from an advocacy organization targeting illegal immigration; and several pictures of political figures.

The Port Authority notified the Federal Air Marshal Service and the United States Secret Service of defendant's arrest. Agents from those federal offices soon arrived and questioned defendant. After the federal agents completed their questioning, Port Authority officers contacted an assistant prosecutor in Essex County. The assistant prosecutor recommended that defendant be charged under state law with unlawful possession of a weapon. The Port Authority then finished processing defendant, specifying the weapons charges against him on a warrant, pending a bail determination. Among other things, the warrant stated that the weapons offense was "within the jurisdiction" of the Superior Court in Essex County.

Subsequently, the Newark Police Department performed an examination of the seized firearm, determining that it was missing its takedown button, firing pin, firing pin spring, and safety. As such, the weapon was deemed "inoperable, but [could] easily be restored to operable condition."

The record reflects that defendant had legally purchased a .22 caliber handgun in his home state of Ohio in 2005. It is undisputed that he did not have a permit to possess the gun lawfully in the State of New Jersey.

As of the time of his arrest, defendant was age twenty-five, unmarried, and residing with a friend in Philadelphia. He was unemployed and enrolled in an on-line college. He identified his permanent address as his grandparents' mobile home in Ohio. Defendant indicated that he was being supported by his mother, a Mississippi resident, until he completed his studies.

After securing representation by counsel, defendant applied for admission into PTI and was interviewed by a criminal case management officer. According to defendant's intake form, he stated to the case manager that he was in good physical and mental health. He disclosed to the case manager, although he later recanted it, that he suffers from bouts of depression caused by anxiety, and had been diagnosed with depression at age ten or eleven. Defendant also indicated he had been prescribed Zoloft and Paxil for his depression, but stopped taking such medication "approximately 4 years ago." During the intake process, defendant divulged that he and his siblings had each been molested by a male babysitter when they were under the age of ten. He thereafter was in counseling through the age of seventeen. He further indicated that his mother had been mentally abusive towards him, noting that she had not permitted him to live with his father following their divorce. The intake form reports that he told the case manager that he "lacks emotional and social immaturity [sic], because he makes inappropriate comments that are considered socially unacceptable."

Defendant admitted to experimental use of "marijuana, ecstacy, acid, and cocaine as a teenager." He had no prior arrests or criminal or juvenile dispositions.

The PTI director was amenable to admitting defendant into the program. However, the Essex County Prosecutor's Office issued a letter rejecting defendant's PTI application. The rejection letter declared that "the State is deeply concerned of the possibility of a threat of violence against yet undetermined persons."

Among other things, the prosecutor's rejection letter emphasized that defendant had concealed and disassembled his gun in two pieces of luggage, and that he had initially lied about its ownership. This conduct signified to the prosecutor that defendant's possession of the gun in his luggage "was in defiance of the law rather than a misunderstanding regarding the transportation of . . . guns in airplanes." In addition, the prosecutor expressed concern that defendant was found with topographical maps of areas along the United States border between Arizona and Mexico, as well as political advocacy materials and photographs of various politicians. The prosecutor also found noteworthy that defendant had a history of treatment for depression but had stopped taking his medication.

The prosecutor maintained that the aggravating factors disfavoring admission under the relevant PTI Guidelines, especially factors (1), (2), (3), (7), (10) and (17) under N.J.S.A. 2C:43-12e, outweighed the mitigating factors, namely factors (3), (6), (12), (13), (15), and (16), and warranted defendant's rejection from PTI. The prosecutor concluded that "defendant is a very serious threat for violence" and that "this case will be better served by traditional prosecution."

Defendant filed a motion with the trial court seeking to compel his admission into the PTI program, in spite of the prosecutor's opposition. In its brief responding to defendant's motion, the prosecution underscored the points set forth in its earlier rejection letter. The prosecutor stated that the present offense, involving an attempt to place an undeclared weapon onto a plane, was one that "causes significant public anxiety," particularly after the September 11, 2001 airplane hijackings and the attacks on the World Trade Center and the Pentagon. The prosecutor also referred to defendant's political materials, and the prospect that defendant might have wanted to use the firearm for politically-motivated violence.

With respect to defendant's mental health, the prosecutor noted:

Finally, the defendant has submitted a psychiatric evaluation to the court*fn3 , in an attempt to undermine the State's position that [defendant] may be mentally unstable. Much of the report is in direct conflict with the information [defendant] provided Criminal Case Management ("CCM"). Due to the defendant's lack of candor with at least one of these parties, the State must stand by its original decision to reject the defendant. The State does not believe that the officer who conducted the defendant's intake interview lied or exaggerated the information in his report, as implied by his subsequent psychiatric evaluation. Furthermore, the defendant's lack of honesty during this process reflects very negatively on his prospects for rehabilitation. Therefore, in light of this newly received information, the State stands firmly by its initial decision.

The trial court entertained oral argument on the PTI issues. Defense counsel asserted that the prosecution's rejection was based in part on incorrect information, maintaining that defendant had never been diagnosed as depressive and that he did not require medication. Defense counsel also argued that the rejection letter's reference to the September 11th attacks was improper and that defendant's situation was not at all analogous. He contested the prosecution's characterization of defendant as a potential dangerous vigilante. Counsel further argued that the prosecutor had misapplied and incorrectly weighed the aggravating and mitigating factors under the PTI statute.

In response, the prosecution asserted that it had properly evaluated the totality of the circumstances. The prosecutor noted that public anxiety could rise if it were perceived that the State was not "vigorously prosecut[ing]" cases such as this involving weapons on planes. The prosecutor also focused upon the apparent inconsistencies between the psychiatric evaluation submitted in support of defendant's motion and what defendant had told the criminal case manager.

In his oral ruling, the trial judge acknowledged that mitigating factors are present here, and that he personally might have been more lenient with defendant if he had been the prosecutor. But the judge further acknowledged that the prosecutor "is entitled to take [the PTI statutory] factors into consideration," and that the law did not permit the judge to substitute his own views in place of the prosecutor's decision. As the judge summarized it:

There's nothing that I have before [me] to indicate that a decision to deny participation into pretrial intervention program to an individual who it is alleged brought a disassembled handgun into an airport, and thereafter, even an inoperable one, thereafter into a commercial airliner, or attempted to do so is not an appropriate [one] for the participation in the pretrial intervention program. As justified or unjustified as the public's concern might be under such circumstances, the fact that the prosecutor is interested in assuring that the public has as much confidence as it possibl[y] could have in the airline industry and in the process of securing the airline industry, and the air traffic - the fact that they have that concern and the desire to do whatever is necessary to alleviate[,] within the bounds of the Constitution[,] the concern of the public, which ...


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