January 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TARIQUE ANGELO CAMPBELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and LeWinn.
Defendant Tarique Angelo Campbell was indicted by the Essex County Grand Jurors and charged with a single count of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39- 5b. Following the prosecutor's denial of his application for admission to the pretrial intervention program (PTI) and the trial court's rejection of his challenge to that decision, R. 3:28(h); N.J.S.A. 2C:43-12, defendant pled guilty to the charge. He was sentenced, in accordance with his plea agreement, to a two-year term of probation. Appropriate fines, penalties and assessments were imposed. As authorized by Rule 3:28(g), defendant appeals from the denial of his application for admission to PTI.
Defendant provided a factual basis for his guilty plea. On September 12, 2006, he was in a Jeep with three other people. He was in possession of a .40 caliber handgun but did not have the permit required by law. He admitted that the handgun was his and that the other people in the car did not have anything to do with the gun.
The police report provides additional detail. On the night of September 12, 2006, the Irvington Police Department had several calls reporting gun shots in the area of Columbia Avenue and University Place. Shortly before midnight, Officer Mildon and a state trooper with whom he was patrolling, were alerted that a suspect in a shooting was fleeing from that area in a silver-colored Buick. The officers saw and stopped the Buick. The driver of a Jeep behind the Buick accelerated and backed the car up. In the process, he crashed into another car. The officers approached the Jeep and told its four occupants to get out. As the rear-seat passenger on the driver's side of the vehicle complied, Mildon saw a semi-automatic handgun on the back seat.
Defendant was also seated in a rear seat of the Jeep. He was on the passenger side. According to Mildon's report, defendant was bleeding from the mouth, unable to speak and incoherent. Defendant's companions said he had been assaulted minutes before at the intersection of 18th and Columbia Avenues in Irvington.
Tanishea Bermudez, the sister of the Jeep's front seat passenger, arrived on the scene. She told the officers she had seen the shooting incident and that it "stemmed from the assault on" defendant.
The handgun recovered from the Jeep was loaded and operable. Nine .40 caliber casings, all fired from the same gun, were recovered from Columbia Avenue. No ballistics tests were done to confirm whether the casings were fired from the handgun defendant possessed.
On March 9, 2007, the Essex County Grand Jury charged defendant and the other three occupants of the Jeep with possession of a handgun. In July 2007, defendant filed an application for admission to PTI. On August 7, his admission was recommended by the program administrator, but on August 20, the assistant prosecutor informed defendant's attorney that the Essex County Prosecutor would not consent to defendant's enrollment in the program.
The assistant prosecutor provided a written explanation that had been approved by the executive assistant prosecutor. It describes the facts set forth in the police report and defendant's background. He was then twenty-one years old, unemployed, and single. He had a high school diploma, no dependents and no involvement in the juvenile justice system. His prior record included two prior arrests, in both instances the charges were dismissed. One arrest was on a charge for loitering in public on August 14, 2006, and the other on a charge of obstructing a public passage on January 6, 2007.
The assistant prosecutor provided the following reasons for denying defendant diversion to PTI.
It is appropriate for the Prosecutor to consider the nature of the offense and the facts of the case when evaluating an application for P.T.I. N.J.S.A. 2C:43-12e(1) and (2); Guideline 3(i) of R. 3:28. In this case, the defendant was found to be in possession of a gun immediately after his alleged participation in a shoot-out on Columbia Avenue in Irvington. The defendant's possession of a handgun under these circumstances clearly presents a threat of violence and injury to the community. Applicants who are charged with crimes committed with the deliberate threat of violence are presumptively ineligible for PTI. The defendant has not overcome this presumption, and therefore his application must be denied.
The State has also considered the needs and interests of society and the possible injurious consequences of the defendant's crime. N.J.S.A. 2C:43-12e(7), (10), and (14). The defendant had no permit to purchase or possess the .40 caliber semi-automatic handgun and it was loaded. The possession of a loaded handgun is assaultive in nature, not in the criminal act itself, but in the possible injurious consequences of such behavior. Furthermore, a witness told officers that shortly before the defendant's arrest, there was a shoot-out on Columbia Avenue, which was in response to the assault on the defendant. The possession of a firearm in this context clearly suggests that the defendant and his co-defendants had the propensity, and the intention to use this weapon. This behavior is unacceptable and must be deterred. Therefore, it is the opinion of this Office that diverting the defendant in this case would not be in the best interests of society. The City of Newark is plagued by gun-related violence, which places its law-abiding residents in a constant state of fear and apprehension. Admitting the defendant into PTI would depreciate the serious nature of his offense.
Additionally, it is appropriate for the Prosecutor to consider the impact of diversion on the prosecution of a co-defendant. See R. 3:28 Guideline 3(j); N.J.S.A. 2C:43-12e(16). See also N.J.S.A. 2C:43-12e(15). This Office has considered the possible negative impact that the diversion of this defendant may have on the prosecution of his co-defendants. . . . Therefore, his application is denied.
Finally, I have determined that the defendant has failed to establish that the values of supervisory treatment would outweigh the public need for prosecution.
N.J.S.A. 2C:43-12e(14). The aggravating factors, particularly N.J.S.A. 2C:43-12e(1) [(nature of the offense)], (2) [(facts of the case)], (7) [(needs and interests of the victim and society)], (10) [(possible injurious consequences of the criminal behavior)], (14) [(the balance of the value of treatment and the public need for prosecution)], (15) [(the interest of the State in a criminal prosecution)], (16) [(adverse impact of prosecution of co-defendants)], and (17) [((a) the balance of the harm of abandoning prosecution and (b) the benefits of supervisory treatment)], which overwhelmingly outweigh the mitigating factors, namely N.J.S.A. 2C:43-12e(3) (age), (8) [(absence of a pattern of antisocial behavior)], and (9) (no criminal convictions), (12) [(no history of violence)], militate against the defendant's admission into the program. [(emphasis added).]
Defendant's application for admission to PTI over objection of the Essex County Prosecutor was heard in November 2007. By that time, the State's position with respect to the impact of his admission to PTI on his co-defendants had changed. Acknowledging that the State planned to dismiss the charges against the co-defendants if defendant were admitted to PTI, the State argued that the remaining factors were sufficient to exclude him from the program.
Defense counsel argued that the prosecutor's reliance on the use of the gun in the shooting was not supported by the evidence. In response to questions from the judge about the link between the gun and the casings found on Columbia Avenue, the assistant prosecutor admitted that the State had not done the ballistic testing necessary to connect the two. Noting that the prosecutor had approved applications for PTI filed by offenders with characteristics similar to defendant's who were charged with possession of a firearm not used in a shooting, the assistant prosecutor indicated he believed that the prosecutor's office would reconsider the application if the casings were not discharged from defendant's handgun.
The judge considered whether defendant clearly and convincingly established that the prosecutor's denial of defendant's application was a patent and gross abuse of discretion. He assessed the adequacy of the reasons without relying upon the importance to prosecution of defendant's companions, because the assistant prosecutor had acknowledged its irrelevance. Identifying evidence, other than ballistics evidence, that permitted an inference that defendant's assault and his possession of the handgun were related, the judge concluded that defendant failed to demonstrate grounds to overrule the prosecutor's decision.
After a brief recess, the State offered to amend the plea agreement. The State agreed to obtain ballistics tests prior to sentencing to determine whether the casings were discharged from defendant's handgun and reconsider his application for PTI if the tests proved negative. Otherwise, the State would recommend a sentence of "non-custodial probation." Defendant accepted the agreement.
The post-plea ballistics tests were not discussed at the time of sentencing, but defendant did not move to vacate his guilty plea. The only ballistics tests included in the record provided on appeal were performed on September 26, 2006, before defendant was indicted, challenged the denial of his application for PTI and pled guilty.
"In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.' A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citations omitted); see State v. Dalglish, 86 N.J. 503, 509 (1981) (noting that the distinction between an abuse and a patent and gross abuse of discretion is that the latter involves deviations from the guidelines for admission that will "clearly subvert the goals underlying Pretrial Intervention"). The hallmark of a denial of admission to PTI that amounts to a patent and gross abuse of discretion is inconsistency with "the predominant views of others responsible for the administration of criminal justice." Dalglish, supra, 86 N.J. at 510.
Despite this deferential standard of review, which was adopted to avoid judicial interference with decisions for which prosecutors bear primary responsibility, a remand for reconsideration by the prosecutor is appropriate when the prosecutor has misinterpreted or misapplied the guidelines and may decide to admit the defendant to PTI with additional guidance from the court. Id. at 509-10. Thus, when the prosecutor has relied on a presumption against admission that is not applicable in the case, reviewing courts generally remand to permit the prosecutor to consider the application anew without the presumption. Watkins, supra, 193 N.J. at 527.
While the parties have not highlighted the issue on appeal, it is apparent that the prosecutor relied upon an inapplicable presumption in this case. We refer to the portion of the prosecutor's reasons set forth above with emphasis, in which the prosecutor indicates that "[a]pplicants who are charged with crimes committed with deliberate threat of violence are presumptively ineligible for PTI," and concludes that defendant's application "must be denied" because he has not overcome "this presumption."
The prosecutor's reference is to N.J.S.A. 2C:43-12(e) and PTI Guideline 3(i)(3). "[T]he PTI Guidelines embodied in Rule 3:28 incorporate a presumption against admission for certain classes of offenses." Watkins, supra, 193 N.J. at 513. Guideline 3(i)(3) applies that presumption to a defendant who is charged with a crime "deliberately committed with violence or threat of violence against another person." The grand jury indicted defendant and charged him with one crime - possession of a handgun without having first obtained a permit. The presumption did not apply.
Because it is not clear whether the prosecutor would have denied the application if the prosecutor had not relied upon the inapplicable presumption, a remand to permit the prosecutor to reconsider the decision without reliance upon that presumption is appropriate.
We have reviewed the record and considered the additional arguments presented in defendant's brief. Without exception, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The matter is remanded to the prosecutor for consideration of this application without reliance upon the presumption. We do not retain jurisdiction.
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