February 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RONNIE A. DUMAS, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-11-1291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011
Before Judges Carchman and Messano.
The State appeals from an order of the Law Division rejecting the objections of both the prosecutor and the Passaic County Pretrial Intervention (PTI) Director and admitting defendant Ronnie A. Dumas to PTI. We reverse.
These are the relevant and undisputed facts derived from the police reports attached to the PTI denial notice. Defendant was charged by a grand jury with second-degree robbery, N.J.S.A. 2C:15-1a(1); first-degree using a juvenile to commit a crime, N.J.S.A. 2C:24-9; and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.
Subsequently, defendant and two accomplices were charged with robbing a seventeen-year-old victim of $220.00 in cash. The victim responded to defendant's online advertisement on Craigslist for the sale of an iPhone. Defendant communicated with the victim by cell phone text messages, negotiated a $220.00 cash price, and instructed the victim to meet him at School 16 in Clifton.
On April 7, 2009, at about 8:00 p.m., the victim rode his bicycle to School 16. Defendant arrived in a light-colored vehicle with two juvenile accomplices, D.G., the front seat passenger, and P.M., the rear passenger. D.G. asked the victim if he had the money and suggested that they go to the back of the school to finalize the sale. After the victim declined, defendant and D.G. exited the car and pretended to search for the iPhone in the trunk. In fact, defendant did not have an iPhone to sell, and the transaction was merely a ruse to lure the victim to the school for the robbery. Defendant returned to the car. D.G. knocked the victim to the ground and struck him about the face and upper body. D.G. also ripped a gold chain from the victim's neck and took $220 from him. D.G. entered the car, and defendant drove away. The three perpetrators later divided the proceeds, with one $100 bill given to defendant, one $100 to D.G., and one $20 bill to P.M. The victim sustained a nose bleed and bruises to his face and head.
The victim reported the incident to the police and provided the license plate of defendant's vehicle. He described the defendant driver as a black male wearing a red baseball cap and earrings, and the front passenger as a black male wearing a black t-shirt. Further investigation revealed that the vehicle was a white 1986 Mercury Sable owned by defendant's grandmother. On April 8, 2009, the Clifton Police located defendant at his residence in Morristown. Defendant agreed to speak with the police at headquarters.
Although "[i]nitially evasive," defendant indicated that he had located two potential buyers for an iPhone that he advertised on Craigslist. On April 7, defendant picked up P.M. and D.G. and drove to the Willowbrook Mall to sell the phone to a woman for $400. After the sale, according to defendant, D.G. told him that "he needed money." Defendant responded that he knew another buyer who wanted to buy an iPhone. Defendant admitted that they met the buyer at School 16, and pretended to search for the iPhone in the trunk. Defendant stated that the robbery netted $220, and his share of the proceeds was $100.00.
The police recovered a $100 bill from defendant, the red baseball cap worn at the time of the robbery and the cell phone that he used to communicate with the victim. After additional investigation, juveniles D.G. and P.M. were also charged with robbery.
Defendant applied to PTI and was interviewed by the PTI Director designee on January 4, 2010. The PTI Director issued a PTI Program Denial Notice which set forth his review of the matter and his recommendation to deny enrollment.
The Denial Notice documented defendant's version of the incident:
He stated he had placed his cell phone for sale on Craig's List and went to meet with the kid who was going to buy it in Clifton, NJ. . . . They stopped in a school lot where they were to meet the kid. When he showed up [defendant] got out of the vehicle and went to the trunk to search for the cell phone. [D.G.] got out of the vehicle and snatched the kid's chain. The kid fought back and [D.G.] started to beat the kid up. [D.G.] just got back in the car and watched and started talking to [P.M.], who was in the back seat. Then they went home.
The PTI Director noted that when defendant was invited to give reasons to justify enrollment, he responded that "he is not fit for jail, wants to get his life in order and knows that he will complete the program."
The Denial Notice included a summary of defendant's prior record, which included three prior arrests. In two separate cases, defendant was charged as a juvenile with receiving stolen property and theft; those matters were diverted. After reaching majority, defendant was arrested a third time, on March 14, 2009, and convicted of a disorderly conduct offense.
The PTI Denial Notice identified the following factors as weighing against enrollment:
1. Participation in PTI is unlikely to deter future criminal and disorderly conduct.
2. Offense(s) committed with violence or threat of violence against another person.
3. Admission to PTI would deprecate the serious nature of the offense(s).
4. The applicant is charged with a first or second degree offense.
5. The nature of the offense(s) ([N.J.S.A.] 2C:43-12e1).
6. The needs and interests of the victim and or society would not be met by PTI enrollment of the defendant ([N.J.S.A.] 2C:43-12e7).
In addition, the PTI Director concluded that:
1. Due to the fact that the defendant is charged with a first and second degree offense, it is necessary that he offer compelling reasons to justify enrollment into the PTI program. However, it is the opinion of this officer that the defendant failed to offer such reasons.
2. The defendant has a prior record which reflects that he has had prior encounters with the judicial system and although his adjudication of guilt are minimal [sic], it nevertheless did not deter the defendant from becoming involved with the instant offense.
3. The defendant has failed to express any remorse for his actions which leads this office to seriously question his amenability to rehabilitation.
4. Due to the nature of the offense, it is the opinion of the PTI Program that the defendant be prosecuted through traditional criminal procedure.
5. The defendant has minimized the extent of his role in the instant offense and instead shifted blame to his co-defendant. He therefore failed to recognize the full extent of his role and responsibility. While such an attitude continues, it is unlikely that behavioral change would occur as a result of short term rehabilitation.
6. 3(i)3, deliberately committed with violence or threat of violence against another person.
Defendant appealed the PTI denial. Defendant did not claim that the prosecutor considered inappropriate factors or failed to consider appropriate factors. Rather, he argues that he was unaware that a robbery and assault would occur; that his conduct was influenced by one of his 17 year-old co-defendants, who was a "gang member;" that the co-defendant later assaulted him because he cooperated with the police; and that he "lives in a hard working, church-going, supportive household" and "respects his role as the model for his younger siblings." These contentions were not supported by any evidence in the record.
In his written opinion overturning the PTI denial, the motion judge noted that after his apprehension, defendant cooperated with the police and "immediately paid restitution." In fact, when confronted, defendant turned over the $100 bill that represented his share of the proceeds of the robbery. The judge also concluded that defendant "acknowledge[d] [his] wrongdoing" and was amenable to correction and responsive to rehabilitation. According to the judge, defendant was not aware of the juvenile's intent to commit a robbery or assault. He offered that defendant was "likely mislead and manipulated, [and] PTI appears to be a just resolution." He concluded that the State's objection to defendant's participation in PTI was "arbitrary and capricious and did amount to a gross abuse of discretion."
We first restate basic principles applying to our review of the State's denial of admission to PTI. We afford prosecutors "wide latitude" in determining those to divert through PTI and our review of such rejection is "severely limited." State v. Mosner, 407 N.J. Super. 40, 56 (App. Div. 2009). To set aside a prosecutorial denial of admission to PTI, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion."
Id. at 55 (citations and quotations omitted.) The Supreme Court has defined a patent and gross abuse of discretion as a decision that "'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" State v. Watkins, 193 N.J. 507, 520 (2008)(quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "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." State v. Bender, 80 N.J. 84, 93 (1979).
The judge here made no finding that the State failed to consider the factors enunciated in Bender but concluded that there was a gross abuse of discretion. We disagree.
Critically important, the judge did not address the impact of PTI Guideline 3(i). That Guideline provides that an application should "generally be rejected" when the crime is: (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust . . . [or] a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . . [Rule 3:28, Guidelines for the Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:38, (2011) (emphasis added).]
These offenses incorporate a presumption against admission. State v. Watkins, 193 N.J. 507, 520 (2008).
Defendant, here, was charged with first and second-degree offenses. His role was not that of a passive bystander. He orchestrated the scheme resulting in the robbery, authored the emails to sell a non-existent iPhone, drove his co-defendants to the scene and participated fully in accepting the monies derived from the robbery.
While we can accept that defendant demonstrated remorse and was ultimately cooperative with law enforcement, he played a critical role in furthering a serious offense that resulted in injury to the victim. The fact that he, too, was later assaulted provides little basis for suggesting that he was some how victimized in the initial criminal endeavor.
In sum, we conclude that the prosecutor's rejection of defendant as a PTI candidate was supported by the facts known to him, and we conclude that there was neither an abuse of discretion nor a gross abuse of discretion.
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