On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-06-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Sapp-Peterson.
A Monmouth County Grand Jury charged defendant with fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b). Defendant applied for admission to the pre-trial intervention (PTI) program. On September 4, 2008, the prosecutor denied the application. On November 18, 2008, the trial court entered an order denying defendant's appeal from the prosecutor's decision. On December 15, 2008, defendant pled guilty to the charged offense. On May 8, 2009, the trial court sentenced defendant pursuant to a negotiated plea agreement to a two-year term of probation, and imposed all appropriate fines and penalties.
On appeal from the November 18, 2008 order, defendant argues that the prosecutor's decision refusing his entry into PTI "was a clear error in judgment." Defendant contends that we should reverse and remand with instructions to admit him into PTI. We disagree and affirm.
The facts are not in dispute. Defendant is a thirty-four year old first offender, and the father of a seven-year child born of a relationship with his ex-girlfriend S.P. In May 2006, the Minnesota Internet Crimes Against Children Task Force advised the New Jersey State Police that an individual under its investigation for distribution of child pornography had sent an image of child pornography to a certain Internet provider's screen name in New Jersey.
On January 23, 2007, after ascertaining that the screen name was that of defendant, the Monmouth County Prosecutor's Office detectives proceeded to defendant's residence and informed him of their investigation. Defendant advised the detectives that, although there was no child pornography on his computer, several of his compact computer discs might contain child pornography. Indeed, one of the computer discs contained a file name associated with child pornography. Following his arrest, defendant admitted that, although he was aware it was illegal to possess child pornography, he collected these images out of curiosity and because of the "thrill" he received from engaging in the illegal activity. A subsequent sampling of his computer discs disclosed "approximately 100 images and videos that had been accumulated between 2002 and 2004 depicting children under the age of sixteen engaging in prohibited sexual acts."
The Monmouth Vicinage Criminal Division Manager recommended against defendant's admission into PTI because of the nature of the offense, the inability to closely monitor defendant's computer activities, and because defendant "had displayed antisocial behavior by not only viewing images and videos depicting child pornography, but also by saving them, presumably for his later enjoyment." On September 4, 2008, the Monmouth County Prosecutor issued a memorandum denying defendant's admission into PTI, expressing as his reasons for the denial: 1) "the nature of the offense"; 2) "the facts of this case"; 3) "the desire of the State to pursue this prosecution"; 4) "the needs and interests of the victims and society"; 5) "the extent to which this defendant's criminal behavior constitutes part of a continuing pattern of anti-social behavior"; and 6) "because the crime of possession of [c]hild [p]ornography is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution." In explaining what he meant by defendant's criminal behavior constituting a continued pattern of anti-social behavior, the prosecutor stated:
. . . It is apparent from review of the CDs seized from the defendant's residence, that [defendant] actively accumulated images and videos depicting teenagers and prepubescent children engaged in prohibited sexual acts. Moreover, it is obvious that he has more than a transitory interest in this material as is evidenced by his repeated and systematic pursuit of child pornography over a several year period. Though he claims he collected this material, in part, out of "curiosity," the evidence indicates otherwise. [Defendant] did more than fleetingly view these files while surfing the Web - he took the time to preserve them for later access. This pattern is typically seen with true child pornography collectors who have a proclivity for this type of material. When asked by PTI to give his version of the events, [defendant] did no more than provide a synopsis of the police reports, offering no explanation for his behavior. Given the evidence in this case and dearth of any explanation on the part of the defendant, it is submitted that he remains at risk to re-offend and that the sanction imposed by PTI is insufficient to deter future criminal conduct on his part.
On September 15, 2008, defendant filed a motion seeking to reverse the prosecutor's objection of his admission into PTI. On November 18, 2008, Judge Ronald Reisner entered an order supported by an oral decision, denying defendant's appeal.
PTI "represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system." State v. Leonardis, 71 N.J. 85, 92 (1976). The program is governed by statute and court rule. N.J.S.A. 2C:43-12; R. 3:28. "Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution" and "[a]ny defendant charged with a crime is eligible for [the program]." State v. Caliguiri, 158 N.J. 28, 35-36 (1999). However, because PTI is discretionary, not every defendant is entitled to enter into the program. See Pressler, Current N.J. Court Rules, Guideline II on R. 3:28 (2010).
"[T]o reverse the denial of an application for PTI[,] a defendant must clearly and convincingly establish that the prosecutor's refusal to consent to admission to the program was based upon a patent and gross abuse of discretion." State v. Maldonado, 314 N.J. Super. 539, 543 (App. Div. 1998). "'[A] patent and gross abuse of discretion' is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "To overturn a prosecutor's decision[,] a party must show that [the] decision either failed to account for all the relevant factors, was based on irrelevant or inappropriate factors, . . . or constituted a 'clear error in judgment.'" State v. Smith, 92 N.J. 143, 145 (1983) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). For ...