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State of New Jersey v. andrew T. Henderson


March 31, 2011


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-05-0852.

Per curiam.


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. Defendant argues the prosecutor failed to evaluate him as an individual and his offense made him "per se" ineligible.

"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." Id. at 116-17. "A rejected applicant must be provided with a clear statement of reasons for the denial." State v. Negran, 178 N.J. 73, 82 (2003); N.J.S.A. 2C:43-12(f). Here, the letter of denial brusquely lists -- in the form of bullet points -- the reasons used to deny defendant. Although perfunctory, the letter in this case informed defendant of the facts affecting the success of his application. Moreover, the prosecutor's reasons are consistent with criteria set forth in N.J.S.A. 2C:43-12(e). Specifically, N.J.S.A. 2C:43-12(e)(1) - the nature of the offense, N.J.S.A. 2C:43-12(e)(10) - the possible injurious consequences of such behavior, and N.J.S.A. 2C:43-12(e)(14) - the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution. As noted by the Law Division on defendant's motion,

[I]t's not a patent and gross abuse of discretion for the prosecutor to now or even before the change in law which rendered this offense a second degree offense, to take a position that gun charges, no matter what form they take, mere possession but not obtaining the necessary permit, possessing it in this state and this city and this county . . . are not subject to pretrial diversion. . . . The need to prosecute such cases outweighs the benefits of diversion and the potential for violence . . . . is self evident. So the court finds that those grounds are adequate.

We concur with the motion court's assessment that the prosecutor's hard-line stance does not clearly exhibit a patent and gross abuse of the prosecutor's broad discretion nor does it necessarily mean defendant was not individually evaluated.

"[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 discretion, it is unnecessary to address whether such abuse would clearly subvert the goals of PTI.


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