On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Indictment No. 07-02-0059.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Graves.
Following his plea to conspiracy to possess cocaine with intent to distribute cocaine and possession of cocaine,*fn1 and sentence to two years probation conditioned upon the service of 15 days service in the County Jail, defendant appeals the prosecutor's denial of defendant's enrollment into the pretrial intervention program (PTI). He contends that the prosecutor's basis for rejecting enrollment and the judge's reliance upon the prosecutor's report of "no cooperation" were inappropriate and that, in any event, the prosecutor's denial of consent for enrollment into PTI constituted "a patent and gross abuse of discretion."
PTI was not designed to be a prosecutor's tool to gain cooperation, and in fact acknowledgment of guilt is not required under the guidelines. What we recently said in State v. Monser, 407 N.J. Super. 40, 55-56 (App. Div. 2009), applies in this case:
A "[d]efendant generally 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)] (citing State v. Nwobu, 139 N.J. 236, 246-47, 652 A.2d 1209 (1995)). 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.'" State v. Hoffman, 399 N.J. Super. 207, 213, 943 A.2d 910 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305, 915 A.2d 561 (App. Div. 2007), aff'd, 193 N.J. 507, 940 A.2d 1173 (2008)). See also Negran, supra, 178 N.J. at 82, 835 A.2d 301; Brooks, supra, 175 N.J. at 225, 814 A.2d 1051; Nwobu, supra, 139 N.J. at 246, 652 A.2d 1209; Motley, supra, 369 N.J. Super. at 321, 848 A.2d 875. "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.'" Watkins, supra, 193 N.J. 576, 582-83, 684 A.2d 1355 (1996)). "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." State v. Bender, 80 N.J. 84, 93, 402 A.2d 217 (1979).
Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82, 835 A.2d 301. We afford the prosecutor's decision great deference. Wallace, supra, 146 N.J. at 589, 684 A.2d 1355; State v. Leonardis, 73 N.J. 360, 381, 378 A.2d 607 (1977)); State v. Kraft, 265 N.J. Super. 106, 111, 625 A.2d 579 (App. Div. 1993). For that reason, "[t]he scope of judicial review of a decision to reject a PTI application is 'severely limited.'" Hoffman, supra, 399 N.J. Super. at 213, 943 A.2d 910 (App. Div. 2008). See also Leonardis, supra, 73 N.J. at 381, 375 A.2d 607. A trial court can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. Kraft, supra, 265 N.J. Super. at 112-13, 625 A.2d 579.
The fundamental question before us is whether, under the circumstances of this case, the prosecutor could condition defendant's PTI admission on a guilty plea to a motor vehicle charge carrying a mandatory term of imprisonment. "Enrollment in PTI programs should be conditioned upon their neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective." R. 3:28, Guideline 4. See also N.J.S.A. 2C:43-12g. Rejection of PTI admission should only occur where "it is unlikely that behavioral change can occur as a result of short-term rehabilitative work." Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 4. [(Id.)]
Defendant asserts he was enrolled in PTI before the prosecutor "decided that defendant had not complied with the cooperation agreement" they executed, and thereafter "withdrew his consent for defendant's admission." If so, defendant would be entitled to a hearing on the claim that he did not honor the agreement to cooperate. Rule 3:28(b)(3).
While the judge's opinion on the PTI appeal reveals that defendant "was informed by Criminal Case Management that he [was] approved for the program" and "[d]efendant executed the Standard Conditions of PTI Supervision and the Criminal Division Program Director executed an Order of Postponement," no such order appears to have been executed by the prosecutor or judge, and none is in the record before us.*fn2 Thus, defendant was not actually enrolled in PTI when the program director decided, based on the prosecutor's report that defendant breached the condition of his consent by not honoring the cooperation agreement, to re-evaluate his decision to admit defendant into the program. The Criminal Division Manager then decided to reject defendant's application, stating that defendant's "willingness to cooperate . . . was a significant factor in our initial decision."*fn3 Criminal Case Management then listed reasons for rejection, including the adverse impact on the "prosecution of co-defendants."
The PTI judge expressly found that "[t]he prosecutor has not consented to defendant's admission to PTI and, indeed, the defendant has not been admitted into the PTI program."
Moreover, the agreement defendant signed with the prosecutor emphasizes the need for, and terms of, cooperation as a condition.
As defendant was never enrolled in PTI, and the record sustains a basis by the program director for rejecting defendant at the time of rejection, independent of his lack of cooperation, we conclude that defendant is not entitled to a termination hearing to evaluate the claim of lack of cooperation,*fn4 that there was no "patent and gross abuse" of ...