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State of New Jersey v. E.P

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 13, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E.P., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-07-1225.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2010 - Decided Before Judges R. B. Coleman and Lihotz.

Defendant E.P. appeals from the final judgment of conviction entered by the Law Division, Hudson County, on October 29, 2007, pursuant to a plea agreement. The judgment was entered following the denial of defendant's application for admission into the Hudson County Pre-Trial Intervention Program (PTI). Defendant contends the rejection of his PTI application rested on a patent and gross abuse of discretion by the prosecutor, which should have been corrected by the Law Division ordering his admission into PTI over the prosecutor's objection. We have considered defendant's arguments in light of the record and applicable law, and we affirm.

Defendant was indicted on June 21, 2006, and charged with six counts of fourth-degree criminal contempt in violation of N.J.S.A. 2C:29-9; two counts of witness tampering in violation of N.J.S.A. 2C:28-5; three counts of criminal trespass in violation of N.J.S.A. 2C:18-3(b); and one count of third-degree stalking in violation of N.J.S.A. 2C:12-10. All of these offenses related to alleged violations of a domestic violence restraining order granted to defendant's estranged wife.

Defendant applied for entry into PTI, and that application was denied by the Criminal Division Manager, with the concurrence of the Hudson County Prosecutor. In light of that denial, defendant agreed, on October 2, 2006, to enter a plea of guilty to two counts of criminal contempt in exchange for the dismissal of the remaining charges of the indictment and the recommendation of a non-custodial probationary sentence. However, on March 9, 2007, defendant requested an opportunity to have his PTI application reconsidered since he had failed, due to a mistake, to appear for his originally scheduled interview. The court granted defendant's request and remanded defendant's PTI application for reconsideration. The prosecutor's office again denied defendant's PTI application. On April 12, 2007, the court rejected defendant's application to overturn the prosecutor's decision to deny defendant's application for PTI, but it deferred sentencing to give defendant time to file motions for an order allowing him to withdraw his guilty plea and for an order dismissing the indictment. On August 28, 2007, the trial court denied defendant's motion to dismiss the indictment but granted the motion to withdraw his plea of guilty.

The matter was scheduled for trial on October 18, 2007, on which date defendant entered into a new plea agreement with the State. Under this new agreement, defendant entered a plea of guilty to one count of contempt, amended to a disorderly persons offense. In exchange for the plea, the State agreed to recommend non-custodial probation and the dismissal of the remaining counts of the indictment, as well as the dismissal of a complaint on the Family Part docket. On October 26, 2007, defendant was sentenced to time served and appropriate fines and penalties were imposed. The judge expressly acknowledged on the record that defendant reserved the right to appeal the denial of the PTI application. This appeal followed.

Defendant argues the prosecutor's statement of reasons for denying him entry into the PTI program ignored relevant facts, misstated other facts and conflicted with the program director's rejection letter. Defendant claims this was a patent and gross abuse of discretion and subverts the goals of PTI. These errors, according to defendant, warrant his immediate admission into the PTI program. We disagree.

Judicial review of prosecutorial decisions denying admission into PTI is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). "Great deference is given to the prosecutor's determination not to consent to diversion" from the normal criminal process. Ibid. To overturn the prosecutor's decision, a defendant must show that the decision was based on a patent and gross abuse of his discretion. Id. at 90.

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. [Id. at 93 (internal citation omitted).]

Although a detailed report outlining every step taken in the decision to deny an applicant is not required, the prosecutor should at least note the factors present in defendant's background or the offense purportedly committed which led to the decision to deny admission into PTI. State v. Sutton, 80 N.J. 110, 117 (1979). Here, defendant claims he was not evaluated as required by the statute and guidelines. Defendant argues the program director failed to evaluate him as an individual and that most of the criteria were not considered for or against enrollment.

In a memorandum forwarded to the Hudson County Prosecutor's Office, the Criminal Division Manager did not recommend defendant for enrollment in PTI based on several factors. When considering the nature of the offense, the manager noted defendant violated six times a restraining order issued for the protection of his estranged wife. When considering defendant's motivation, the manager noted that defendant missed his initial interview and was hours late for his second interview. The manager also considered the extent that defendant's crime constituted a continuing pattern of anti-social behavior and whether defendant's criminal record, as well as the extent, may present a substantial danger to others.

Defendant contends the facts used to deny him admission to PTI are stated brusquely and without analysis, in contravention of the requirement that "[a] rejected applicant must be provided with a clear statement of reasons for the denial." State v. Negran, 178 N.J. 73, 82 (2003). "A statement of reasons both facilitates judicial review of the prosecutorial determination and allows a defendant a meaningful opportunity to rebut the premise upon which that determination is based." Sutton, supra, 80 N.J. at 117-18.

Even if the criminal division manager's memorandum is perfunctorily and brief, the memorandum, nevertheless, informed defendant of the facts and factors affecting the success of his application. The memorandum disclosed that defendant's criminal case history reflected multiple arrests, mostly for contempt of the restraining order and harassment charges against the same victim, his ex-wife. Defendant maintains that any contacts with his ex-wife were initiated by her, that she pursued him.

Defendant contends further that the prosecutor mischaracterized the nonviolent nature of his multiple violations of the restraining order. Defendant argues the threatening nature of the messages was ambiguous and that "[t]his case involved no more than a series of attempts by him to speak to his estranged wife when domestic violence restraining orders forbade him from having contact with her." Defendant argues such factors as (1) whether the crime was assaultive or violent in nature and (2) whether the defendant had a history of violence towards others, although highly relevant, were ignored, because the memorandum stated these factors were "not considered either for or against enrollment." As we read the memorandum, those factors were not ignored. They were neither affirmative nor negative factors.

"[U]nless and until a defendant demonstrates [to] the contrary, our judges must presume that all relevant factors were considered and weighed prior to a prosecutorial veto." Bender, supra, 80 N.J. at 94. Contrary to defendant's assertion, the failure of the criminal case manager or the prosecutor to consider the lack of violence in favor of enrollment does not mean the factor was ignored. Nor does this prove the prosecutor's denial of defendant's application was a patent and gross abuse of discretion. It is apparent from reviewing the manager's evaluation that the number of restraining order violations and defendant's inability to punctually attend his first two scheduled interviews played a significant role in his denial. Nevertheless, the manager's recommendation to deny defendant's application, even if regarded as perfunctory, does not reflect such a subversion of the goals of PTI as to warrant another remand for further reconsideration or a ruling compelling admission into PTI.

Defendant argues the prosecutor virtually discarded every opportunity to achieve the goals of the PTI program by denying defendant admission. While sympathetic to defendant's interest in maintaining a clean record and in avoiding the risks implicated by his immigration status, we have consistently allowed prosecutors wide latitude in deciding whom to admit into PTI. Negran, supra, 178 N.J. at 82. The judge of the Law Division properly recognized the limited scope of judicial review during his consideration of defendant's motion to withdraw his plea, when he stated "given the wide discretion the prosecutor has to deny PTI, again I cannot say that it's a gross abuse of the prosecutor's discretion not to allow this defendant into PTI." We concur with that assessment.

"[A] primary purpose of PTI is to augment, not to diminish, a prosecutor's options." State v. Dalglish, 86 N.J. 503, 509 (1981). Since we do not find the prosecutor's office abused its broad discretion, it is unnecessary to address specifically any remaining arguments raised by defendant. Such arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20110113

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