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State v. Celian


February 5, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0565.

Per curiam.


Submitted November 4, 2009

Before Judges Grall and LeWinn.

Defendant was indicted for third-degree possession of controlled dangerous substances (CDS) (marijuana and eleven tablets of Ecstasy), in violation of N.J.S.A. 2C:35-10(a)(1).

He applied for admission into the Pretrial Intervention program (PTI) pursuant to N.J.S.A. 2C:43-12. The Prosecutor's Office recommended against his admission into PTI, and defendant appealed that decision. The trial judge affirmed the Prosecutor's rejection of defendant from the program. Defendant thereupon entered a plea of guilty to the indictment and was subsequently sentenced to a term of probation for one year.

Defendant now appeals from the trial judge's decision. For the reasons that follow, we affirm.

N.J.S.A. 2C:43-12(e) sets forth the standards governing admission to PTI as follows:

At any time prior to trial but after the filing of a criminal complaint, . . . or the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of co-defendants; and

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

In weighing these statutory criteria, the Prosecutor's Office determined that defendant lacked "motivation[,]" N.J.S.A. 2C:43-12(e)(3), and that he has demonstrated a "continuing pattern of anti-social behavior[.]" N.J.S.A. 2C:43-12(e)(8).

In support of the first determination, the Prosecutor's Office noted that [a]lthough he is only 23 years old, he has been charged numerous times in the past. His prior contacts with the court, which have included convictions and sentences of fines, have failed to deter him or motivate him to lead a law-abiding life. He continues to offend. After the present case for which he applies to PTI, he was charged again on July 23, 2007[,] in Asbury Park with Possession of CDS with Intent to Distribute. This case is still pending in the complaint stage. On the present case for which the defendat [sic] applies for PTI, a bench warrant was issued for his failure to appear for his pre-arraignment interview on March 27, 2007. The defendant remained a fugitive until July 24, 2007.

Respecting the second factor, the rejection decision noted that "defendant's prior contacts with the court have failed to deter him. He exhibits a continuing pattern of anti-social behavior making him an inappropriate candidate for PTI[,] . . . [and] has a pending charge in the Superior Court, which may adversely affect his admission into PTI."

Judge Francis P. DeStefano issued a written decision affirming the Prosecutor's decision to reject defendant's PTI application. We affirm substantially for the reasons stated in that decision. We add only the following brief comments.

A prosecutor has wide discretion in deciding PTI applications, and a decision denying such an application will be accorded great deference. State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). In fact, "the level of deference . . . is so high that it has been categorized as 'enhanced deference' or 'extra deference[,]'" and a "trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor[,]" even if the court may disagree with the prosecutor's decision. Id. at 111-12.

A court will override a prosecutor's rejection of a PTI application only upon a finding that defendant has "clearly and convincingly establish[ed] that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse . . . of discretion." State v. Seyler, 323 N.J. Super. 360, 367 (App. Div. 1999), aff'd, 163 N.J. 69 (2000). "A 'patent and gross abuse of discretion' is more than just an abuse of discretion as traditionally conceived[.]" State v. Wallace, 146 N.J. 576, 582-83 (1996). In State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted), the Supreme Court defined "patent and gross abuse of discretion" as follows:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

The Court has further defined a "clear error of judgment" as "'one that is based on appropriate factors and rationally explained, but . . . contrary to the predominant views of others responsible for the administration of criminal justice.'" State v. Baynes, 148 N.J. 434, 444 (1997) (quoting State v. Nwobu, 139 N.J. 236, 253 (1995)).

We are satisfied that the record adequately supports the trial judge's affirmance of the Prosecutor's decision, considering: (1) defendant's prior record of municipal court convictions; (2) his arrest for a new charge in July 2007, for possession of CDS with intent to distribute, which arose after the offense on which he applied to PTI; (3) defendant's failure to appear for his pre-arraigment interview on March 27, 2007, resulting in the issuance of a bench warrant and his status as a fugitive until July 24, 2007; and (4) defendant's "failure of a drug test at his PTI interview, as stated by the PTI investigator . . . ." We concur with the trial judge's conclusion that these facts effectively refute "defendant's argument that he is independently motivated to succeed in PTI . . . ."

We note that defendant has pointed out no factual errors in the judge's findings. Rather, he merely argues that the trial judge "should have reversed the prosecutor's rejection of [his] application for . . . enrollment into the PTI program." As noted, however, a trial judge has no discretion to reverse such a decision absent a patent abuse of prosecutorial discretion, which we are satisfied does not exist here.



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