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November 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-09-1239.

Per curiam.



Submitted October 19, 2010

Before Judges Graves and Messano.

Defendant Elias Benitez appeals from the September 1, 2009 order affirming the Passaic County prosecutor's rejection of his application for admission to the Pretrial Intervention Program (PTI), and the order of October 14, 2009, denying his motion for reconsideration.*fn1 We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Defendant was indicted by the Passaic County grand jury and charged with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In Count One, defendant was alleged to have acted while he "had supervisory or disciplinary power . . . over J.R.," the alleged victim. See N.J.S.A. 2C:14-2c(3)(b). In Count Two, defendant was alleged to have used "physical force or coercion." See N.J.S.A. 2C:14-2(c)(1). At the time of the incident, defendant was not quite 42 years of age; J.R. was 17.

The State alleged that on the night of May 9, 2008, J.R. attended an event at her church. Defendant was the husband of the Church's pastor. After the event ended, defendant offered to drive J.R. and the other children in attendance to their homes. After dropping off everyone else, defendant and J.R. were alone in the car. Instead of taking J.R. immediately home, defendant drove in a direction away from J.R.'s house and eventually stopped on a dead-end street. He began to rub the inside of J.R.'s thighs, kissed and bit her neck, put his hands under her shirt and rubbed her breasts. At first, J.R. was so frightened that she could not speak, however, she eventually told defendant to stop and drive her home. He did, but warned J.R. not to tell anyone about what had happened.

In her home, J.R. told her brother, who in turn informed their father. The next day, J.R.'s father contacted the pastor and asked to see her and defendant at his home. They arrived, and, in front of J.R. and others assembled, defendant admitted that he had touched the girl in an inappropriate manner. Two days later, J.R. told the police of the incident and defendant was arrested.

Defendant applied for admission to PTI. As part of that process, the probation department interviewed J.R., who recounted the details of the crime and told the officer that she was "very scared" while the offense was being committed, but that she "was more hurt by the fact that she considered [defendant] to be like a second father." J.R. was undergoing counseling and having difficulty "feeling comfortable" in the new church she was attending. She expressed her opposition to defendant's admission into PTI.

Defendant initially refused to be interviewed by the probation officer, citing his attorney's directive not to speak to anyone about the crime. Although defense counsel called probation and, citing a misunderstanding, asked that defendant be re-interviewed, probation chose not to do so. Defendant had no prior juvenile or adult arrests, was employed as a maintenance worker, and resided with his wife, his son by a prior relationship and his stepdaughter. After consideration of these factors, and the likelihood that "through clinical counseling . . . defendant w[ould] come to recognize his role and responsibility in the commission of the . . . offense," the program director recommended defendant's enrollment in PTI.

The prosecutor, however, objected. On April 2, 2009, he forwarded a statement of his reasons, which were threefold. First, the prosecutor concluded the offense was "not a 'victimless' crime," citing Rule 3:28, Guideline 1(c). Citing N.J.S.A. 2C:43-12(e)(3), he noted the "disparity in age[] and power" between defendant and J.R., that defendant had "forcibly groped and actually bit the victim," and that, as a result, J.R. and her family were "emotionally traumatized." He further noted that the victim did not wish "'to forego prosecution,'" quoting N.J.S.A. 2C:43-12(e)(4).

Quoting Guideline 3(i)(3), the prosecutor further noted that the crime was "deliberately committed with violence or threat of violence." He alleged that defendant had bitten the victim's neck and warned her not to tell anyone about the incident. Lastly, quoting N.J.S.A. 2C:43-12(e)(7), the prosecutor claimed "the needs and interests of the victim and society" required defendant's rejection from PTI, noting that if convicted, defendant would be required to register pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21.

During oral argument on May 7, the judge concluded that defendant should be psychologically evaluated to determine if he had "some type of psychosexual issue . . . going on." As a result, defendant was evaluated by Anthony V. D'Urso, Psy.D., on May 30 and June 4, 2009.

Notably, the version of the events defendant conveyed to D'Urso differed remarkably from J.R.'s. Defendant claimed that while driving J.R. home from church that evening, the girl "wanted to drive" and "grabbed the wheel." In pushing her away, he "hit her bosom." Contrary to any admissions he made the day after the incident to J.R. and her family, defendant denied "biting, kissing, or fondling" the girl, telling D'Urso that he was pleading guilty anyway. When asked "what his factual basis would be," defendant "was evasive and stated, 'I guess that's why I have lawyers.'" Defendant further claimed that J.R.'s mother was behind the allegations, and that he did not need any counseling because J.R.'s claims were "not consistent with his actions." D'Urso concluded that defendant "presented himself in an unrealistically virtuous way," and that "his profile reflected behaviors which suggest impulsive, immature and self-serving conduct." D'Urso opined that defendant was "evasive," "ha[d] little ownership over his conduct, [and] tend[ed] to project blame on others . . . ."

However, D'Urso also opined that defendant's conduct was "opportunistic and situational" and did not "result from a deviant arousal pattern." Defendant demonstrated no "pattern or disposition toward young children or adolescents." D'Urso recommended "therapy for [defendant's] impulsive conduct," but believed there was a "poor prognosis as [defendant] has not admitted to any conduct which approximates the victim's statements."

After further oral argument, the judge issued a written opinion rejecting defendant's appeal of the prosecutor's decision. Citing relevant case precedent, he concluded that defendant had "failed to clearly and convincingly establish that the prosecution's refusal was arbitrary and capricious and amounted to a patent and gross abuse of discretion . . . ." Defendant's motion for reconsideration was denied, and this appeal followed.*fn2

We begin by recognizing the standards that inform our review. Prosecutors are permitted "wide [discretion] in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State v. DeMarco, 107 N.J. 562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). As a result, the scope of our review "is severely limited . . . [and] serves to check only 'the most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)) (citations omitted). "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). A defendant can demonstrate an abuse of prosecutorial discretion "if [he] can show that a . . . 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 (1979). But, in order to succeed, a defendant must show more.

To overturn the prosecutor's denial of his admission, a defendant must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion . . . ." Kraft, supra, 265 N.J. Super. at 112. (citations and quotations omitted) (emphasis omitted). "[A]n abuse of discretion . . . rise[s] to the level of 'patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Bender, supra, 80 N.J. at 93. We apply these principles in the context of this case.

Defendant claims that the prosecutor's reasons for rejection "failed to address the statutory factors" defining the "goals of PTI," and, instead, focused only on "the victim's perspective" in "disregard[] [of] defendant's amenability to correction, his potential responsiveness to rehabilitation, and the true nature of the offense . . . ." We cannot conclude, however, that the prosecutor's decision to deny defendant's admission into the program was a patent and gross abuse of discretion.

While we might agree that the prosecutor's written statement of reasons for rejection was terse, we have noted that "[g]enerally, 'it is presumed that the prosecutor considered all relevant factors before rendering a [PTI] decision.'" State v. Hoffman, 399 N.J. Super. 207, 215 (App. Div. 2008) (quoting Dalglish, supra, 86 N.J. at 509). The omission of explicit reference to all factors does not establish they were not considered. Hoffman, supra, 399 N.J. Super. at 215. Moreover, at oral argument, the prosecutor further explained his reasons for the denial. See ibid. (noting "the prosecutor's comments during oral argument" demonstrated consideration of relevant factors in denying admission).

Indeed, considering the whole record advanced before the judge, it is clear that the prosecutor considered a multitude of factors contained in N.J.S.A. 2C:43-12(e). For example, he considered the nature of the offense, the specific facts of the case, the motive and age of defendant, the victim's desire not to forego prosecution, traits of defendant's character that might be addressed through diversion from traditional prosecution, the needs and interest of the victim and society, and whether the crime was assaultive or violent in nature. See N.J.S.A. 2C:43-12(e)(1), (2), (3), (4), (5), (7), and (10).*fn3

Additionally, it is clear that the prosecutor recognized a number of factors that weighed in defendant's favor, specifically that there was no continuing pattern of anti-social behavior, the lack of any prior criminal or juvenile record, a lack of violent conduct in the past, and a lack of involvement in organized crime. See N.J.S.A. 2C:43-12(e)(8), (9), (12), and (13).

Defendant contends that the prosecutor failed to consider the factors in light of the statutory goals of PTI contained in N.J.S.A. 2C:43-12(a). However, as one of its stated goals, PTI was intended to provide "a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses." N.J.S.A. 2C:43-12(a)(3); R. 3:28, Guideline 1(c). Stated in the converse, PTI was not intended to divert the prosecution of those charged with assaultive conduct, including crimes of a sexual nature. See R. 3:28, Guideline 3(i)(3) (a "defendant's application should generally be rejected" when the offense is "deliberately committed with violence or threat of violence against another person"). Indeed, "it is . . . appropriate for prosecutors to base their rejections solely on the nature of an offense for which the Guidelines express a presumption against admission." State v. Baynes, 148 N.J. 434, 447 (1997).

Defendant argues that the State could not prove that the sexual contact in this case occurred through force or coercion, thus, eliminating the underpinning for some of the conclusions the prosecutor reached in weighing the factors governing admission. However, in reviewing the prosecutor's rejection, the judge may not resolve factual disputes raised by a defendant, particularly when the facts defendant asserts assail one of the essential elements of the crime for which he was indicted. See State v. Wallace, 146 N.J. 576, 584 (1996) (stating that "a reviewing court's scrutiny is generally limited to the justification contained in the [prosecutor's] statement of refusal"). In our view, permitting the judge to do so would fly in the face of longstanding precedent that was developed "with careful attention to the preservation of the traditional role of the prosecutor." Id. at 584-85. As the Court has noted, "the PTI process is not designed to assess the weight of the State's case. '[T]he appropriate administration of the program militates against basing enrollment upon the weight of the evidence of guilt.'" Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J. 143, 147 (1983)).

In this case, the State contended that defendant committed criminal sexual contact not only through the use of his supervisory relationship with J.R., but also through the use of force or coercion. See State in Interest of M.T.S., 129 N.J. 422, 444 (1992). J.R.'s description of the incident amply demonstrated that it involved "force or coercion" as used in the statutes defining the offense. Ibid.; see also State v. Litton, 155 N.J. Super. 207, 216 (App. Div. 1977) (discussing the prosecutor's rejection of an applicant charged with lewdness, formerly N.J.S.A. 2A:115-1, and noting that "even though no physical contact occurred between [the] defendant and the complaining witness, we are unable to say that this offense did not arise from distinctly assaultive motivations").

Lastly, we note that although the judge did not specifically cite D'Urso's report, it is clear that defendant's amenability to supervisory services in the rehabilitative or deterrent sense is questionable. D'Urso noted his prognosis regarding counseling was poor in light of defendant's failure to admit to any conduct that mirrored the victim's account. See Litton, supra, 155 N.J. Super. at 217 (noting that the defendant's psychological evaluation concluded his "behavior [wa]s volitional [and] the product of a normal psyche free of compulsive influences," and that the prosecutor did not commit an abuse of discretion by reasoning "that [defendant] should be dealt with by the more punitive measures which are a part of the ordinary correctional processes and as such compatible with the aim of rehabilitation").

In short, we conclude that defendant failed to clearly and convincingly demonstrate that the prosecutor's decision rejecting his admission to PTI was a patent and gross abuse of discretion.


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