On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-09-0375.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2010
Before Judges Wefing and LeWinn.
Defendant appeals from a trial court order denying his motion to be admitted to pretrial intervention ("PTI"). After reviewing the record in light of the contentions advanced on appeal, we have concluded we are constrained to affirm.
Defendant, who was eighteen years old, was driving an automobile in Phillipsburg on July 4, 2007, when he was stopped by Police Officer Larry Marino, Jr. for driving with an obstructed view. Defendant initially looked through the glove compartment for the vehicle's registration but could not locate it. He turned in the driver's seat to reach into the backseat area of the car to continue his search for the registration. While he was doing so, Officer Marino saw a handgun partially protruding from under the front passenger seat. Officer Marino drew his weapon and ordered defendant to step out of the car. He retrieved and secured the weapon, a.9mm, later identified as a Taurus Millennium PT 111. The weapon was loaded with six bullets, one of which was hollow nose. Defendant said the gun did not belong to him but rather to his friend, Donte, who had asked defendant to hold it for him. Later, defendant said that Donte had given him the gun to hold for a short time and had then taken it back. He said Donte had been in the car a few days earlier and, unbeknownst to defendant, must have left the gun in the car. He said he did not know Donte's last name. Defendant was charged with unlawful possession of a weapon, N.J.S.A. 2C:39-5b, a crime of the third degree; possession of a hollow nose bullet, N.J.S.A. 2C:39-3f, a crime of the fourth degree; and possession of a handgun by a person under the age of twenty-one, N.J.S.A. 2C:58-6.1b, a crime of the fourth degree.
Defendant had no prior involvement with the criminal justice system. Although he had not finished high school, he was close to getting his G.E.D. He was also working and, when he needed extra money, sought additional work through an agency placing temporary workers. Defendant applied for admission to PTI, but the director rejected his application. The prosecutor concurred with this decision. Defendant appealed to the Law Division, but it upheld the prosecutor's decision. Defendant then entered a negotiated plea of guilty to possessing a handgun while under the age of twenty-one and possession of a hollow nose bullet. The trial court sentenced defendant to eighteen months on probation. Defendant has appealed to this court from the order refusing his admission into PTI. R. 3:28(g).
We note, as did the trial court, the limited scope of our review in a matter such as this. The Supreme Court recently summarized the principles that must guide our consideration.
Our case law is well settled that the judiciary accords enhanced deference to a prosecutor's decision in respect of a PTI application. To succeed in challenging the denial of such application, a defendant must prove clearly and convincingly that a prosecutor's decision was a patent and gross abuse of his discretion. More specifically, a defendant must show that the prosecutor's 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. In addition to that showing, a successful defendant must also demonstrate that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].
As a practical matter, our standard of review translates into a high burden for defendants. Accordingly, [j]udicial review is available to check only the most egregious examples of injustice and unfairness. Lastly, although a prosecutor's discretion in this area is not unbridled, a prosecutor's decision to reject a PTI applicant will rarely be overturned. [State v. Brooks, 175 N.J. 215, 225 (2002) (alterations in original) (citations and internal quotation marks omitted).]
We recently had occasion as well to address the restricted scope of judicial review of such decisions.
A trial court does not evaluate a PTI application as if it [stands] in the shoes of the prosecutor. And it cannot substitute its own judgment for that of the prosecutor even when the prosecutor's decision is one which the trial court disagrees with or finds to be harsh. [State v. Hoffman, 399 N.J. Super. 207, 216 (App. Div. 2008) (alterations in original) (citations and internal quotation marks omitted).]
N.J.S.A. 2C:43-12(e) lists a variety of factors a prosecutor is to consider when weighing an application for admission to PTI, including the nature of the offense and the facts of the case, a defendant's age and motivation, whether it is likely that the particular crime is related to a condition or situation that would be conducive to change under supervisory treatment, whether a defendant has a record of criminal or penal violations, and whether the charged offense is violent or assaultive, either in itself or in its possibly injurious consequences. The statute lists seventeen factors in all but also provides that this listing is not exclusive or exhaustive.
In denying defendant's PTI application, the prosecutor noted that defendant had supplied apparently inconsistent versions of how the weapon came to be in his car, as well as the potential risk, to himself and to ...