On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FJ-10-249-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Graves and Newman.
On September 29, 2007, when V.D. was fifteen years old, he was charged with juvenile delinquency for committing an act which, if committed by an adult, would have constituted the disorderly persons offense of possession of less than fifty grams of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4). Following a bench trial, the court entered an adjudication of delinquency on July 9, 2008. When V.D. was sentenced on August 4, 2008, the court revoked a deferred disposition on a prior juvenile complaint and V.D. was sentenced to a concurrent one-year term of probation for both offenses with random drug testing, a six-month deferment of driving privileges, and community service. In addition, V.D. was ordered to serve thirty days of detention with twenty-five days suspended, attend an adolescent outpatient program three times a week, and pay all mandatory fines and penalties. On appeal, V.D. contends that his adjudication must be vacated because he "was the subject of selective prosecution." After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.
On September 29, 2007, V.D. was a passenger in a motor vehicle operated by A.G. that was stopped by police at approximately 1:20 p.m. for running a stop sign. M.P. was seated in the front seat next to A.G., and V.D. was seated in the center of the backseat between two other juveniles, M.L. and G.R. The arresting officer, Patrolman Josh Beers, testified that V.D., M.L., and A.G. appeared nervous, had "bloodshot, watery eyes," and emitted "the odor of burnt marijuana." After questioning and removing all five juveniles, Beers conducted a search of the car. He located a partially burnt marijuana cigarette on the floor behind the right passenger's seat and a bag of suspected marijuana underneath the driver's seat in the rear passenger area. In addition, the officer's canine partner, "a trained narcotics police dog," detected another bag of marijuana that had been placed in the "overhead console area" of the vehicle near the light fixture.
Based on Patrolman Beers' observations and conclusions as to who appeared to have been smoking marijuana, he charged V.D., A.G., and M.L. According to Beers, the two remaining occupants, G.R. and M.P., were not charged because they did not exhibit signs of being under the influence of marijuana during questioning.
At trial, the juvenile driver of the vehicle, A.G., testified that "people were smoking" in the back seat, but he was unable to identify the specific individuals. When he testified, A.G. acknowledged he was on probation but he stated no promises were made to him in return for his testimony. Defense counsel chose not to cross-examine A.G.
Similarly, G.R., who was seated next to V.D. in the back seat, testified he was on probation and no promises were made to him in exchange for his testimony. G.R. positively identified V.D. as one of the individuals smoking marijuana. G.R.'s statements were corroborated by the two remaining juveniles, M.L. and M.P., who both independently testified that V.D. participated in smoking a marijuana cigarette in the car. The court noted there was no reason for the State's witnesses to implicate V.D. "unless he was actually smoking the marijuana" and concluded V.D. was in possession of the marijuana when he "took the roach that was passed to him and smoked it."
A prosecutor is vested with broad discretion in selecting matters for prosecution. "A decision to prosecute or not to prosecute is to be accorded judicial deference in the absence of a showing of arbitrariness, gross abuse of discretion or bad faith." State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978). Further, "[t]he conscious exercise of some selectivity in enforcement is not a constitutional violation unless the decision to prosecute is based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Twp. of Pennsauken v. Schad, 160 N.J. 156, 183 (1999); see also Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed. 2d 446, 453 (1962).
In this matter, V.D. does not allege he was arrested or prosecuted based on a suspect classification such as race, religion, or gender. He alleges his constitutional right to due process was violated because G.R. and M.L., who provided incriminating information to the police, were not charged. This claim is without merit.
"To prevail on a claim of selective prosecution, the defendant must provide 'clear evidence' to overcome the presumption that the prosecutor has not acted unconstitutionally, given the general deference to which prosecutorial decisions are entitled." State v. Ballard, 331 N.J. Super. 529, 539 (App. Div. 2000) (citing United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 1486, 134 L.Ed. 2d 687, 698-99 (1996)).
Patrolman Beers testified his decision to arrest V.D., M.L., and A.G. was based on his observations at the scene and his ...