On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-04-0200.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Graves and Messano.
The State of New Jersey (the State) appeals from the July 13, 2010 order of the Law Division that granted defendant Zachary Gehl's appeal of his rejection from the PreTrial Intervention Program (PTI) by the Somerset County Prosecutor. We reverse.
On February 4, 2010, defendant, who was eighteen-years old, and three juvenile co-defendants entered a home in Bernards Township. Their purpose was to retrieve an iPod owned by one of the juveniles, and taken by the homeowner's son as collateral on an alleged debt. Defendant and his cohorts entered the house through an unlocked sliding glass door. Once inside, defendant and one of the juveniles used a knife to pry open a locked metal cabinet that contained Adderall, a drug prescribed for the homeowner's son. After taking the Adderall, defendant and the juveniles fled. Defendant subsequently admitted his involvement to the police.
The Somerset County grand jury charged defendant with third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft, N.J.S.A. 2C:20-3. Defendant applied for admission to PTI and the program director recommended admission. In a letter dated May 5, 2010, however, the prosecutor objected. Recounting the facts of the case, and citing Rule 3:28, guideline 3, and N.J.S.A. 2C:43-12(e)(1), (2), (7) and (10), the prosecutor concluded that rejection was appropriate "based on the nature of the offense . . . the threat of violence involved in the commission of defendant's crime and the needs and interests of the victim and society." Defendant appealed the rejection.
After considering oral argument, the Law Division judge granted defendant's motion. In a short written opinion that accompanied the order, the judge first noted that defendant was rejected by the prosecutor "before he was even interviewed by the [PTI] staff." The judge found this "alarming . . . as this preemptive rejection was made without all the information available and it would be impossible to comprehensively evaluate all [the statutory factors] prior to an interview." The judge also found there was "no proof" that the prosecutor had reviewed "all [the] statutory factors." The judge concluded:
As a result of the patent failure to review all [statutory] factors and rest [its] decision on the nature of the offense only, this Court finds that defendant's denial was a patent and gross abuse of [the prosecutor's] discretion.
The judge granted the motion and this appeal ensued.
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 ...