On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-02-0481.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Payne, Baxter and Koblitz.
Defendant Terrence A. Jackson appeals from his January 23, 2009 conviction on a charge of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3), for which the judge sentenced him to a one-year term of non-custodial probation. We reject defendant's contention that the prosecutor's rejection of his request for admission to the Pretrial Intervention Program (PTI) constituted a patent and gross abuse of discretion and that the judge erred by refusing to override the prosecutor's adverse decision. We likewise reject defendant's claim that his probationary sentence was excessive. We affirm.
On September 7, 2007, Officer Daniel Newman of the Asbury Park Police Department was on duty at the Asbury Park train station when an unknown male approached him stating that a man on the train platform, later identified as defendant, was trying to throw a woman onto the tracks in front of an approaching train. As Newman got closer to the platform, he could hear observers yelling at him to hurry up and he was also able to hear a woman screaming. As Newman looked ahead, he was able to observe defendant holding an unknown female by the arms while pulling her to the edge of the platform.
At that point, Newman, who was in plain clothes, grabbed defendant from behind and yelled in a loud voice, "police." Although defendant released his grasp of the female, he ignored Newman's command to lie down on the ground. In fact, defendant attempted to grab Newman and, in doing so, scratched the officer's arm. As Newman continued his attempt to gain control of defendant and handcuff him, defendant continued to struggle, stating, "don't be a hero." When advised by Newman that he was under arrest, defendant again pulled away from the officer's grip. Even when uniformed officers arrived on the scene, defendant continued to disobey the officers' command that he "get on the ground." When the officers were finally able to pull defendant to the ground, defendant put his arms under his stomach in an attempt to prevent them from applying the handcuffs. Defendant was charged with resisting arrest, aggravated assault and possession of a schedule IV controlled dangerous substance, namely modafinil.
Defendant thereafter filed a timely application for diversion into the PTI program. The PTI program director recommended that defendant be admitted; however, on July 16, 2008, the prosecutor rejected defendant from PTI, citing three reasons:
1. [N.J.S.A.] 2C:43-12(e)(2). The facts of the case. The facts . . . show that . . . defendant assaulted a police officer and resisted arrest. Several officers were called to the scene and needed to subdue the defendant who was uncooperative and unruly. At the police station the defendant continued to be uncooperative with the officers. Officer Newman required subsequent medical care as a result of the defendant's act.
Guideline 3(i) states that if the crime was committed with violence or threat of violence then the defendant's application should be rejected.
2. [N.J.S.A.] 2C:43-12(e)(4). The desire of the complainant or victim to forego prosecution. Although the PTI investigator has not considered the victim's comments, Patrolman Newman is opposed to the defendant's entry into PTI [and] states that he was injured as a result of this offense committed by the defendant. [Patrolman Newman, t]he victim in this case, suffered a crushed spine as a result and needed two rods and six screws inserted into his back. His back was fused together after a four hour procedure. . . .
3. [N.J.S.A.] 2C:43-12(e)(10). Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior. The victim in this case suffered physical, emotional and financial injury as a result of the defendant's actions.
In her rejection letter, the assistant prosecutor noted she had considered the positive factors in defendant's PTI application, which she described as his education, military service, employment history, lack of any ...