August 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASHIM S. WATTS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-0002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Lihotz and Baxter.
Defendant Hashim S. Watts appeals from his January 12, 2009 conviction, following a negotiated plea of guilty, on a charge of third-degree possession of a controlled dangerous substance (CDS). In particular, he challenges the judge's refusal to overturn the prosecutor's denial of his application for participation in the pretrial intervention program (PTI). He frames his arguments on appeal as follows:
I. DENIAL OF DEFENDANT'S PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION AND A CLEAR ERROR OF JUDGMENT, AND THIS COURT SHOULD DIRECT DEFENDANT'S IMMEDIATE ADMISSION INTO PTI.
II. EVEN IF THIS COURT FINDS THAT DENIAL OF DEFENDANT'S PTI APPLICATION DID NOT RISE TO THE LEVEL OF A "PATENT AND GROSS ABUSE OF DISCRETION," THE ERRORS REQUIRE REMAND OF DEFENDANT'S PTI APPLICATION TO THE PROSECUTOR FOR RECONSIDERATION BASED ON FULL CONSIDERATION OF ALL RELEVANT AND APPROPRIATE FACTORS.
We reject these arguments and affirm defendant's conviction.
On December 6, 2008, defendant was a passenger in a vehicle that was stopped by State Police in Somerville for a motor vehicle violation. A background check of defendant revealed an outstanding fugitive warrant from Pennsylvania based upon his failure to appear in court to face a charge of burglary, receiving stolen property, criminal trespass and theft. Although the crimes in question occurred on July 27, 2007, defendant was not arrested at that time. The complaint that was subsequently filed against defendant in Pennsylvania was mailed to an address at which he was no longer residing. For that reason, defendant was apparently not aware of the Pennsylvania charge. Nor did he know that he was due in court and that his failure to appear had resulted in a Pennsylvania warrant for his arrest. Once the State Trooper became aware of the Pennsylvania fugitive warrant, he arrested defendant, conducted a search incident to the arrest and found cocaine on defendant's person. He arrested defendant for possession of CDS. Defendant was ultimately indicted on that charge.
On December 24, 2007, defendant filed an application for admission to the PTI program. His application demonstrated that other than the pending burglary and theft charge in Pennsylvania, defendant had never been arrested. Thus, he had no felony convictions, no municipal court convictions, no juvenile adjudications of delinquency and had never received a conditional discharge or PTI dismissal.
On January 29, 2008, the Criminal Division Manager rejected defendant's application to PTI for two reasons: 1) the charge on which defendant sought admission into PTI was "part of a continuing pattern of anti-social behavior," citing N.J.S.A. 2C:43-12(e)(8) and (9); and 2) "[i]n addition to the instant offense, defendant has been charged with being a Fugitive from the Commonwealth of Pennsylvania [on] two counts of burglary, two counts of criminal trespass, two counts of theft by unlawful taking and two counts of receiving stolen property relating to an offense which took place on 7/27/07." The prosecutor likewise rejected defendant's PTI application, relying on the same factors that the Criminal Division Manager had cited.
Eleven months after the prosecutor rejected his PTI application, defendant appealed that denial to the Law Division, which agreed to hear the appeal even though it was "grossly outof-time." In a written decision issued on January 12, 2009, following oral argument on the PTI appeal, the judge upheld the prosecutor's denial of PTI. The judge began by observing that a "'trial [court] does not have the authority in PTI matters to substitute [its] discretion for that of the prosecutor.'" (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980). The judge concluded that a prosecutor is entitled to rely upon a pending charge as a basis for denying a PTI application and that the prosecutor's refusal to admit defendant to PTI was not an abuse of discretion.
In so concluding, the judge distinguished the published opinions that have curtailed a prosecutor's ability to rely upon dismissed charges as a basis for denying PTI and reasoned that there is a significant difference between a dismissed charge and a pending charge. The judge also rejected defendant's contention that the Criminal Division Manager should not have rejected defendant's PTI application without interviewing him.
Immediately after the judge upheld the prosecutor's denial of defendant's PTI application, defendant entered a negotiated plea of guilty to the charge of possession of CDS, for which he was sentenced to a two-year term of probation. On March 16, 2009, eleven days after filing his appeal with this court, defendant entered a plea of nolo contendere in Pennsylvania to one count of receiving stolen property. He was sentenced to a two-year term of probation and ordered to pay restitution to the victims. All of the other Pennsylvania charges were withdrawn and dismissed.*fn1
We review a trial judge's decision upholding the denial of PTI for an abuse of discretion. State v. Nwobu, 139 N.J. 236, 246-47 (1995). In conducting that review, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "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. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a trial court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).
Thus, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:
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. [Bender, supra, 80 N.J. at 93 (citation omitted).]
With these principles in mind, we review the judge's decision upholding the prosecutor's rejection of defendant's application for PTI. N.J.S.A. 2C:43-12(e) sets forth the standards governing admission to PTI, and specifically authorizes a prosecutor to consider "[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior." N.J.S.A. 2C:43-12(e)(8). Defendant maintains that the State and the judge erred when they relied on this statutory factor as a basis for denying his PTI application because his Pennsylvania charges were pending and had not resulted in conviction.
In support of that argument, defendant relies upon the Court's "warning" in State v. Brooks, 175 N.J. 215, 229 (2002), that "[t]here are limits . . . to the use of a defendant's criminal arrest history." The Court described those limits in the following terms:
[T]he sentencing judge shall not infer guilt as to an underlying charge with respect to which the defendant does not admit his guilt. . . . Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment contained in an applicant's record. Those aspects of defendant's history, if considered at all, may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense. Moreover, a prosecutor's or program director's written rejection of a given application must reflect only a proper consideration of such information. [Ibid. (internal quotation and citation omitted).]
Defendant's reliance upon Brooks is misplaced. There, the Court was concerned only with dismissed charges, not with pending charges, as was the case here. We recognize that in Brooks, the Court required trial judges to limit their consideration of a dismissed charge to whether the prior arrest and dismissal should nonetheless have deterred the defendant from committing the subsequent offense that becomes the subject of a PTI application. We also recognize that here defendant was apparently not aware of the pending charges in Pennsylvania at the time he committed the crime of possession of CDS in New Jersey. Nonetheless, we view defendant's active and pending Pennsylvania charge as entitled to far more consideration than the dismissed charges that the Court discussed in Brooks. This is so because an active charge has the capacity to ultimately lead to conviction, which a dismissed charge cannot.
While it might have been preferable for the trial court to have deferred hearing defendant's PTI appeal until after his Pennsylvania charges were resolved, any such possible error was harmless because, as the record demonstrates, defendant was ultimately convicted in Pennsylvania. Had defendant's PTI appeal been heard in the Law Division after March 16, 2009, the judge would no doubt have affirmed the prosecutor's rejection of defendant's application for PTI because defendant would by then have had a conviction in Pennsylvania and the N.J.S.A. 2C:43-12(e)(8) statutory factor would have unquestionably justified defendant's rejection from PTI.
We are satisfied that defendant's March 16, 2009 conviction in Pennsylvania removed any question about the correctness of the judge's January 12, 2009 decision upholding the prosecutor's rejection of defendant's PTI application.