March 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ARTHUR ELLIOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Wefing and LeWinn.
On March 28, 2007, defendant Arthur Elliott, who had just turned the age of eighteen, was indicted by the Somerset County Grand Jury for fourth-degree credit card theft. Defendant applied to the Office of the Somerset County Prosecutor for admission to the Pretrial Intervention Program (PTI), which was denied. Defendant appealed that decision to the Law Division. Following a hearing, Judge Paul W. Armstrong entered an order denying defendant's appeal.
Defendant thereafter pled guilty to the indictment; he was sentenced to a three-year term of probation, with the condition that he perform fifty hours of community service. Statutory fines and penalties were also assessed. A pending disorderly persons charge of possession of marijuana was dismissed at sentencing.*fn1
Defendant appeals from the denial of his PTI application; he also contends that the imposition of a $500 fine and fifty hours of community service was "manifestly excessive." We affirm.
In denying defendant's PTI application, the Prosecutor stated:
On 12/02/04 you were placed on juvenile probation for a period of one year for Unlawful Possession of a Weapon. On 4/08/05 your probation was terminated and you were sentenced to one year at Jamesburg. . . .
[R]ecords indicate you were paroled on 8/07/06 and discharged from parole on 4/07/07. The present offense occurred while you were still on parole. Therefore, the interest of society would best be served through prosecution in the traditional manner rather than by diversion into the Pretrial Intervention program.
On appeal to the Law Division, defendant "note[d his] difficult background[,]" that he "grew up without a mother. He was raised by an elderly grandmother."
In his decision, Judge Armstrong found that on the date of the offense, defendant was a passenger in a motor vehicle that was stopped by the police for an expired inspection sticker. The police officer noticed "a heavy smoke condition in the passenger compartment[,]" and when the driver opened the door "the officer smelled a strong odor of burnt marijuana emanating from within the vehicle." Defendant admitted to the officer that he had "smoked a blunt and thrown it out the window after seeing the police." A partially burnt marijuana cigarette was, in fact, discovered on the ground below the passenger window of the vehicle.
When the officer asked defendant to exit the vehicle, he observed two American Express credit cards and a digital New Jersey driver's license on the seat, as well as additional marijuana on the floor. It was ascertained that the credit cards and license belonged to a Delores Lacona who, when contacted by the police, "indicated that she last observed her credit cards and license at the Stop & Shop on Easton Avenue in Somerset a day earlier while shopping at that store." Defendant admitted that he worked at that Stop & Shop but stated that he had "no idea how the credit cards and license ended up under his seat in the automobile."
Later, at police headquarters, defendant admitted that he found the credit cards while at work and that he "did not immediately turn the cards in at the front desk . . . ." Defendant further admitted that he attempted to use the credit cards to purchase sneakers at Footlocker for approximately $344.
In rejecting defendant's appeal, Judge Armstrong first noted the limited scope of review by which he was bound, and concluded:
Here, even if this [c]court found the State's conclusion erroneous, it does not rise to a patent and gross abuse of discretion.
Defense counsel has made a strong argument for admission. Indeed, defendant is a young man with a difficult childhood. However, this [c]court must view the prosecutor's decision through the filter of the highly deferential standard of review . . . .
This [c]court must be careful not to evaluate the case as if it stands in the shoes of the prosecutor. The question is not whether this [c]court agrees or disagrees with the prosecutor's decision; instead, the [c]court must insure that there are discernible, rational grounds for [the] prosecutor's decision. This defendant's juvenile record and failure to abide by the terms of probationary supervision provide such rational grounds for the prosecutor's decision to deny defendant's admission into . . . PTI, and this decision does not amount to a gross abuse of discretion.
Accordingly, this [c]court finds that the State's decision to deny . . . defendant's admission into the PTI program was reached on the facts and in consideration of all relevant circumstances.
The State's decision was not irrational or arbitrary. It also did not constitute a patent and gross abuse of discretion . . . .
At sentencing, the judge noted that defendant was eighteen years old and had been "kicked out" of Somerset Alternative High School in the twelfth grade "for poor attendance." The judge further noted that, as a juvenile, defendant had been arrested on six occasions. The judge found three aggravating factors: number three, the risk that defendant will commit another offense; number six, the extent of defendant's prior record and seriousness of the offenses of which he has been convicted; and number nine, the need for deterring the defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found no mitigating factors. Nonetheless, the judge sentenced defendant, in accordance with his plea agreement, to three years of probation, fifty hours of community service and a $500 fine, in addition to the statutory assessments.
On appeal, defendant raises the following contentions for our consideration:
THE MOTION JUDGE ERRED BY RUBBER-STAMPING THE PROSECUTOR'S DECISION TO REJECT DEFENDANT'S REQUEST FOR PTI EVEN THOUGH THE PROSECUTOR COMMITTED [A] GROSS ABUSE OF DISCRETION IN FAILING TO CONSIDER IMPORTANT RELEVANT FACTORS THAT SUPPORTED DEFENDANT'S ADMISSION INTO PTI
THE SENTENCES [SIC] IMPOSED PURSUANT TO DEFENDANT'S CONVICTION FOR POSSESSION OF A STOLEN CREDIT CARD WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION
Having reviewed these contentions in light of the record and the controlling legal principles, we are convinced they are without merit. We add only the following comments.
Defendant "has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008).
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." [Ibid. (citations omitted).]
A prosecutor's decision on a PTI application "is to be afforded great deference. In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)). In short, "[j]udicial review of the prosecutor's PTI decision is strictly limited . . . ." State v. Baynes, 148 N.J. 434, 443 (1997).
Defendant acknowledges this strictly limited and highly deferential scope of review. He contends, however, that "the prosecutor failed to consider the crucial relevant factors that support [d]efendant's admission into PTI[,]" including his "childhood difficulties . . . [and] the fact that [he] was abandoned by his mother early on in life and raised by his elderly grandmother. The prosecutor also failed to consider [d]efendant's relative youth. At the time of the offenses [d]efendant had just turned eighteen."
Defendant also argues that he was "no longer on parole when he committed the present offense. In fact, he had been discharged from parole as of April 7, 2007." However, the indictment states that the date of offense was January 18, 2007. Defendant's pre-sentence investigation report confirms that he was on parole from August 7, 2006 to April 7, 2007. Therefore, he was clearly on parole on the date of this offense.
Defendant's "childhood difficulties" and "relative youth" do not militate in favor of acceptance into PTI. Childhood difficulties do not excuse a course of juvenile delinquency adjudications. Moreover, defendant committed the instant offense on the threshold of adulthood, directly on the heels of his juvenile record.
We are satisfied that, under these circumstances, the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion and was properly upheld by Judge Armstrong.
We briefly address defendant's sentencing argument which we find to be entirely without merit. As noted, the sentencing judge found three aggravating factors applied to defendant and no mitigating factors were present. Nonetheless, the judge gave defendant the benefit of the doubt as well as the benefit of his plea bargain and sentenced him to a probationary term. The imposition of a $500 fine and the condition of fifty hours of community service does not constitute an excessive sentence. A probationary sentence that includes the two conditions of which defendant complains is not "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).