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State ex rel V.D.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2010

STATE OF NEW JERSEY IN THE INTEREST OF V.D., A MINOR.

On appeal from Superior Court of New Jersey, Family Division, Hunterdon County, Docket No. FJ-10-249-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 conclusion that they were smoking marijuana:

Q: Let's be clear. What were the factors that led you to decide to arrest [A.G.]?

A: [H]e was the operator of the vehicle . . . I had found contraband in the vehicle. That, you know, nobody was claiming ownership of the marijuana cigarette. Constructive possession dictates that I can arrest anybody in the car.

Q: What about with regard to physical demeanor?

A: Physical demeanor-

Q: And physical observation?

A: As soon as I stopped the vehicle, as far as coming up to the vehicle, the bloodshot, watery eyes, the odor of burnt marijuana, the nervousness exhibited by the passengers and the driver.

Q: Okay. And similarly, what were the factors that led you to arrest [M.L.], the rear left seat passenger?

A: The factors to that were exactly the same as the others, plus the fact that it was at his, you know, feet. It was accessible to him.

Q: And similarly, what were the factors that led you to arrest [V.D.]?

A: [V.D.], again, exhibited the signs that I have previously testified to.

Q: And what were those?

A: The red, bloodshot watery eyes, the odor of burnt marijuana, the nervousness.

Q: And why didn't you decide -- why did you decide not to arrest [G.R.]?

A: I didn't decide to arrest [G.R.] because he seemed more believable. He didn't exhibit those same signs that the other . . . three were exhibiting. . . .

Q: And why did you decide not to arrest [M.P.]?

A: For the same reasons I didn't arrest [G.R.] She didn't seem to be culpable in it. She had the odor of burnt marijuana on her, but she didn't . . . exhibit . . . the physical signs of being under the influence of it.

Q: And with regard to arresting [V.D.], whose testimony or statement did you take into account? Of all the occupants in the vehicle, whose statement -- verbal statement did you take into account?

A: [G.R.]'s.

Thus, the record confirms the decision to charge three of the five occupants of the vehicle was a proper exercise of discretion and there has been no showing of arbitrariness, gross abuse of discretion, or bad faith. State v. Mitchell, supra, 164 N.J. Super. at 201. Accordingly, V.D. has failed to provide "clear evidence" of selective prosecution to overcome the presumption of constitutionality afforded to the State. State v. Ballard, supra, 331 N.J. Super. at 539.

Affirmed.

20100122

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