On appeal from the State of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2010
Before Judges Fisher and Sapp-Peterson.
Defendant, James C. Mason, appeals from the January 14, 2008 order denying his motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Probation Department and the County Prosecutor. We affirm.
The facts relevant to the issue on appeal are as follows. Defendant was indicted, along with co-defendant Quinton Shivers, with one count of burglary, N.J.S.A. 2C:18-2, arising out of police observations made during routine patrol in the area known as Somerset Mews Apartment Complex on February 22, 2007 at approximately 2:27 p.m. Police observed three men at the front of one of the complex's buildings. It appeared to the officers that two of the men were attempting to hide the other individual. All three individuals eventually entered the building but one later exited and remained standing outside. A short time later, the other two men exited the building and the three men ran around the building. When officers approached the entrance way, they observed that the front door had been pried open and the door to one of the apartments had also been pried open. A description of the three individuals the officers observed earlier was broadcast over the police radio. Three men meeting the description were apprehended, one of whom was defendant. Once at the police station, defendant provided a statement in which he admitted to committing another burglary the preceding day.
Following his arrest and indictment, defendant applied for admission into the PTI program. In rejecting defendant's application, the Program Director cited two reasons: (1) the offense with which defendant had been charged "constitutes part of a continuing pattern of antisocial behavior" and (2) the victim's opposition to defendant's admission into the program. The State concurred that the rejection was appropriate for the reasons expressed by the Program Director.
Defendant appealed the rejection and the trial court conducted a hearing on the matter. Defense counsel argued that defendant did not take anything at the time he committed the burglary -- surmising that defendant "got cold feet," had one prior offense that he had committed as a juvenile and that he had not been cited for a probation violation. In response, the State noted that when defendant waived his Miranda*fn1 rights and provided a statement to police following his arrest, in addition to admitting his culpability for the underlying offense, he admitted to having committed another burglary the preceding day. The State noted further that defendant committed this offense while on probation for a juvenile delinquency adjudication arising out of the commission of a robbery. The State urged that these factors supported the Program Director's conclusion that defendant's conduct represented a continuing pattern of antisocial behavior and that it was unlikely that defendant was amenable to supervision.
The trial court found that defendant failed "to carry a very heavy burden of clearly and convincingly establishing that the Prosecutor's refusal to sanction admission into the [PTI] program was based on a patent and gross abuse of his discretion." The court therefore denied the motion. The present appeal followed.
On appeal, defendant advances one point, namely, the Program Director's evaluation of defendant's application failed to contain an individualized assessment of defendant and, as such, his rejection "was a patent and gross abuse of discretion."
We have considered defendant's argument in light of the record and applicable legal principles. We conclude that the argument is without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments.
PTI has been described as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admission into PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12, and by court rule, Rule 3:28. See Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, comment on R. 3:28 (Guideline 3(e)) (2010). 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)), and interference in that decision by the courts 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)).
The standard to be applied by the courts in reviewing 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, as the trial court observed, 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).
In applying this test, the Supreme Court has noted that 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). However, in order to raise that presumption to the level of "a patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Supreme Court has held that it is appropriate to reverse a decision respecting PTI that is "'contrary to the predominant views of others responsible for the administration of criminal justice'" such that ...