On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-05-0852.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges R. B. Coleman and J. N. Harris.
Defendant Andrew T. Henderson, who was indicted for possession of a handgun without a permit in violation of N.J.S.A. 2C:39-5(b), appeals from the December 18, 2008 denial of his application for admission into the Hudson County Pretrial Intervention Program (PTI). We affirm.
On January 10, 2008, defendant was stopped for speeding. He only possessed a driver's permit. Based on recent information concerning weapons trafficking between East Orange and Jersey City, police were suspicious and asked to search the vehicle. Defendant called the owner of the vehicle who then traveled to the location of the police stop and gave consent to search the vehicle. While searching, the police found a loaded .32 caliber Beretta inside a laundry bag in the trunk of the vehicle. Defendant was arrested and eventually indicted for third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b).*fn1
Defendant applied for admission to PTI. The Criminal Division Manager for Hudson County recommended enrollment, however, the Hudson County Prosecutor's Office refused to consent to his admission. In a letter to defendant's attorney, dated September 4, 2008, the First Assistant Prosecutor cited the following reasons for the refusal: (1) second-degree offense with presumption against admission, (2) the potential for violence, (3) the need to prosecute cases involving the illegal possession of handguns outweighs the benefits of diversion to this defendant. Defendant's counsel responded by letter dated September 10, 2008, and pointed out that at the relevant time, the offense with which defendant was charged was only a third-degree offense. On September 26, 2008, defendant appealed to the Law Division for an order overturning the prosecutor's denial.
The court heard arguments at a November 7, 2008 hearing, and based on the apparent mistake regarding the degree of defendant's offense, the court asked the prosecutor to reconsider the application. The prosecutor objected and argued the mistake in degree of the offense was not an integral part of the denial of the application. He maintained the remaining reasons were sufficient to support the decision to refuse defendant admission into PTI. On December 5, 2008, a second hearing was held. The prosecutor stated that upon review of the September 4, 2008 letter, and despite the reference in that letter to the incorrect degree of the offense, the letter was sufficient to express the prosecutor's reasons for denying the defendant admission into PTI. The court agreed the remaining reasons were adequate and that defendant's denial was not a patent and gross abuse of discretion. This appeal followed.
Defendant asserts the prosecutor treated possession of a handgun as a "per se" ineligible offense. Defendant argues this was clear error in judgment and subverts the goals of PTI. Defendant also argues the prosecutor did not rely on appropriate factors. These errors, according to defendant, warrant his admission into PTI. We disagree.
The Supreme Court has described PTI as follows:
PTI is an alternative procedure to the traditional process of prosecuting criminal defendants. It is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior. PTI is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive, or unnecessary. [State v. Nwobu, 139 N.J. 236, 240-41 (1995).]
Judicial review of prosecutorial decisions denying admission into PTI is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). 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 (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 in accordance with N.J.S.A. 2C:43-12 and the PTI guidelines. ...