April 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHELLE M. SONNICK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-07-1480.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 30, 2011
Before Judges Axelrad and Lihotz.
Defendant Michelle Sonnick appeals from an order of January 22, 2009, denying her motion for admission into the Pretrial Intervention (PTI) program. Defendant was charged with the third-degree offenses of possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(l); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5b(3); and distribution of heroin, N.J.S.A. 2C:35-5b(3).
Following denial of PTI, she pled guilty to distribution of heroin and was sentenced to two years of non-custodial probation, fifty hours of community service, and mandatory fines and penalties were imposed.
On appeal, defendant argues:
THE PROSECUTOR'S REJECTION OF MS. SONNICK'S PTI APPLICATION CONSTITUTED A GROSS AND PATENT ABUSE OF DISCRETION. THEREFORE, THE TRIAL JUDGE ERRED IN AFFIRMING THE PROSECUTOR'S DECISION TO REJECT MS. SONNICK.
A. In Rejecting Ms. Sonnick's Application, the State Failed to Consider All Relevant Factors.
B. The Rejection of Ms. Sonnick's Application Was Based on Irrelevant and Inappropriate Speculation and Mischaracterization of the Facts.
C. The Rejection Was a Clear Error of Judgment As Ms. Sonnick Demonstrated Compelling Reasons Justifying Admission Into PTI.
The indictment alleged that on or about April 28, 2009, defendant possessed heroin, with the intent to distribute and did actually distribute heroin to her boyfriend who was an inmate in the Monmouth County Correctional Center. According to the investigation report, defendant secreted .0l grams of heroin, in two packets,*fn1 inside a greeting card and mailed it to her boyfriend. The packets were discovered during a routine mail search by a corrections officer who ascertained that the card had been disassembled, the drugs had been placed inside, and the card had been glued back together. The card had a fake return address, but the investigators determined defendant had sent the card based on recorded conversations she had with her boyfriend while he was in jail. During these conversations, defendant advised her boyfriend she obtained the heroin he requested and was mailing it to the jail by the method he suggested, using a fake address. Defendant was arrested the day after the drugs were found when she went to the jail to visit.
Defendant applied for admission into the PTI program on August 4, 2009. The PTI investigator rejected defendant's application for PTI, concluding she was not a suitable candidate, and noting defendant's offenses were serious because of the ramifications of introducing heroin into a jail setting, defendant was not drug-addicted, and she acted with a "clear mind." The prosecutor concurred in the rejection, relying on N.J.S.A. 2C:43-12e(2) (the facts of the case), (3) (the motivation of defendant), and (l4) ("[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution"). Specifically, the prosecutor found the "facts of this case go beyond the mere distribution of CDS because the drugs were distributed to an inmate[,]" noting the "great extent" defendant went to in hiding the drugs in the card, using a false address, and mailing it to the inmate with other correspondence, as well as the potential adverse consequences of having drugs sent to a correctional facility. The prosecutor also observed that defendant continued to offend, as she had pending charges for conspiracy and possession of CDS in a school zone stemming from an incident about five months prior to the present charges, which were pending in municipal court. As to the third factor, the prosecutor concluded that defendant's actions "undermined the security of the correctional setting and the people housed at the setting for the purpose of correction . . . [and] jeopardized the protection of the guards and the health and well being of the other inmates." After considering the positive and negative factors in defendant's application, the prosecutor determined the "negative factors significantly outweigh the positive[,] making the defendant an inappropriate candidate for PTI."
Defendant filed a motion appealing her rejection from the PTI program, which was denied by Judge Ronald Reisner following oral argument on January 22, 2010. Though characterizing as an "exaggeration" the prosecutor's statement that a "black market" among gang members was created by the introduction of the small amount of drugs into the prison, the court was satisfied the prosecutor appropriately concluded the integrity of the jail system was undermined by the introduction of any amount of drugs because, in part, of the problem of the inmates potentially resorting to violence to obtain the drugs. Based on its review of the record in light of the applicable law, the court was satisfied the prosecutor had adequately detailed appropriate, statutory criteria for its PTI rejection, and its action was neither "arbitrary" nor "a patent or gross abuse of discretion."
On appeal, defendant argues otherwise, contending the prosecutor failed to consider: (1) she suffers from psychiatric issues related to relationships with men and low-esteem that directly contributed to her commission of the instant offense;
(2) at age twenty-nine she had no prior criminal convictions;
(3) she was successfully treated for alcohol abuse, demonstrating she was amenable to rehabilitation; and (4) she might be unable to meet her child support obligation because of the adverse impact of a criminal conviction on her employment as a teacher's assistant.
"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI is an alternative to criminal prosecution and provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Id. at 517; N.J.S.A. 2C:43-12a(1). PTI is controlled by N.J.S.A. 2C:43-12 and Rule 3:28. "Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change . . . ." Watkins, supra, 193 N.J. at 513. However, the statute and rule also recognize that not all defendants are worthy candidates. Ibid.
In general, the appropriateness of a defendant's admission into PTI is measured by the defendant's amenability to correction and responsiveness to rehabilitation, as well as by the nature of the offense. State v. Leonardis, 71 N.J. 85, 122 (l976) (Leonardis I); Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-12 (2010). The PTI director and prosecutor must evaluate the merits of a PTI application according to the Guidelines and statutory factors enumerated under N.J.S.A. 2C:43-12(e). The PTI analysis must emphasize the character of the offender over the offense committed. Leonardis I, supra, 71 N.J. at 102. The statement of reasons for denying PTI admission must also reflect a proper consideration of all relevant factors. State v. Wallace, 146 N.J. 576, 584 (1996). However, there is a presumption a prosecutor has considered all the factors absent a demonstration by the defendant to the contrary. Ibid. Moreover, nowhere does the statute attempt to instruct the prosecutor on the relative weight to be assigned these several criteria. Although the Legislature has highlighted several factors for the prosecutor or program director to consider, it clearly intended to leave the weighing process to the prosecutor or program director. [Id. at 585-86.]
The PTI guidelines involve the judiciary in the administration of the program. State v. Nwobu, 139 N.J. 236, 245 (l995). This involvement includes "the power to review the operation of court initiated procedures and to review the legal determinations made pursuant to those procedures." Leonardis I, supra, 71 N.J. at 109. Nonetheless, the scope of judicial review is severely limited. State v. Negran, 178 N.J. 73, 82 (2003); State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis
II). Diversion of candidates into PTI is a prosecutorial function, and thus, the prosecutor is endowed with wide latitude in deciding whether to prosecute or divert defendants. Negran, supra, 178 N.J. at 82; Nwobu, supra, 139 N.J. at 245-46. "[I]t has clearly been acknowledged that . . . once [the prosecutor] has determined that he [or she] will not consent to the diversion of a particular defendant, his [or her] decision is to be afforded great deference." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. l993) (citing Leonardis II, supra, 73 N.J. at 381).
That deference to the prosecutor has been described as "'enhanced' or 'extra' in nature." Negran, supra, 178 N.J. at 82 (quoting State v. Baynes, 148 N.J. 434, 443 (l997)). There is an expectation that a prosecutor's PTI decisions "'rarely will be overturned.'" Kraft, supra, 265 N.J. Super. at lll (quoting Leonardis II, supra, 73 N.J. at 380). Therefore, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" State v. DeMarco, 107 N.J. 562, 566 (l987) (quoting Leonardis II, supra,
73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI program] was based on a patent and gross abuse of his [or her] discretion." Leonardis II, supra, 73 N.J. at 382.
In State v. Bender, 80 N.J. 84 (1979), the Court elaborated on the patent and gross abuse of discretion standard:
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).]
With these principles in mind, we review the court's decision. The court employed the correct standard in evaluating the director's decision to reject defendant from the PTI program. Because we find factual support in the record for the rejection of defendant from PTI, we are unable to agree with defendant that there was "a patent and gross abuse of discretion."
Contrary to defendant's assertion, defendant did not present compelling evidence which clearly demonstrated her amenability to the rehabilitative process. Defendant presented no psychiatric records or reports of a treating physician or counselor, past or present, or any other evidence to substantiate her claims of deep-rooted "psychiatric issues relating to relationships with men and low self-esteem" or a causal relationship with the attempt to smuggle heroin into the jail. Based on our review of the record, we are unconvinced the prosecutor failed to consider and weigh the relevant statutory factors. There is no doubt defendant went to great lengths to smuggle the heroin into the jail. That the prosecutor may have exaggerated the effect of defendant's action on the prison system does not undermine the fact it had significant, adverse consequences.