On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-04-0246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 2010
Before Judges Cuff and Sapp-Peterson.
Defendant Michael Andy Lebron appeals from the denial of his application for admission to the PreTrial Intervention (PTI) program. Defendant was charged with third degree burglary, N.J.S.A. 2C:18-2; and third degree theft, N.J.S.A. 2C:20-3. He was eighteen years old at the time of the offenses.
Following denial of PTI on January 29, 2009, defendant pled guilty to the charged offenses and to several disorderly persons offenses arising out of a stop of his automobile. Defendant was sentenced to three years probation conditioned upon serving ninety days in jail, fifty hours of community service, and submission to substance abuse evaluation and treatment. In addition to $1,100 in restitution, the usual fines and penalties were imposed.
On appeal, defendant raises the following argument:
THE DECISION DENYING DEFENDANT'S APPLICATION TO THE SOMERSET COUNTY PTI PROGRAM CONTAINED NO INDIVIDUALIZED EVALUATION; WAS BASED ON AN APPLICATION OF A PER SE RULE EXCLUDING A CLASS OF PTI APPLICANTS, AND DEFEATED THE GOALS OF THE PTI PROGRAM. CONSEQUENTLY, IT WAS A PATENT AND GROSS ABUSE OF DISCRETION THAT MUST BE CORRECTED BY THIS COURT.
Defendant lived in an apartment in Manville. On March 20, 2008, defendant entered the apartment of his upstairs neighbor and removed a computer, cell phones, and a safe. Defendant did not have permission from his neighbor to enter the apartment or to remove anything. Defendant claimed he took the items because he felt the victim owed him.
The PTI program director rejected defendant's application for PTI. He noted the serious nature of the offense of burglary. Judge Armstrong held that defendant did not overcome the presumption that the prosecutor properly exercised his considerable discretion. The judge also noted the serious nature of the offense of burglary and found that the State weighed all relevant factors.
"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI is an alternative to criminal prosecution. It provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Ibid. PTI is controlled by N.J.S.A. 2C:43-12 and Rule 3:28. Under these rules, "[e]ligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change . . .." Watkins, supra, 193 N.J. at 513. However, the statute and rule also recognize that not all defendants are worthy candidates. Ibid.
Diversion of candidates into PTI is a prosecutorial function, and thus, the prosecutor is endowed with great discretion in deciding whether to prosecute or divert defendants. State v. Nwobu, 139 N.J. 236, 245-46 (1995). Still, the PTI guidelines involve the judiciary in the administration of the program. Id. at 245. This involvement includes "the power to review the operation of court initiated procedures and to review the legal determinations made pursuant to those procedures." State v Leonardis, 71 N.J. 85, 109 (1976) (Leonardis I). Nevertheless, the scope of judicial review is limited. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II).
The standard of review is outlined in State v. Kraft, 265 N.J. Super. 106 (App. Div. 1993). "[I]t has clearly been acknowledged that . . . once [the prosecutor] has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference." Id. at 111 (citing Leonardis II, supra, 73 N.J. at 381). The court describes the degree of deference required as enhanced or extra deference. Ibid. (citing State v. DeMarco, 107 N.J. 562, 566 (1987). There is an expectation that prosecutor's PTI decisions "'rarely will be overturned.'" Ibid. (quoting Leonardis II, supra, 73 N.J. at 380). Therefore, judicial review is appropriate "to check only the most egregious examples of injustice and unfairness." Leonardis II, supra, 73 N.J. at 384. Thus, "[a]s a general rule, a trial court may not order admission over a prosecutor's ...