September 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
LAMAR WOODWARD, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-03-0592.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2011
Before Judges Axelrad and R. B. Coleman.
On leave granted, the State appeals from a determination of the Law Division that overturned the rejection of an application by defendant Lamar Woodward for participation in the Hudson County Drug Court program. The Drug Court reasoned that (1) the prosecutor's rejection of defendant was a patent and gross abuse of discretion because it was based on unreliable information relating to whether defendant poses a substantial threat to the community due to his alleged membership in a street gang, and
(2) the prosecutor's consent is not required for defendant's admission to the Drug Court program under track two. State v. Clarke, 203 N.J. 166, 176 (2010). After careful consideration of the record and the applicable law, we affirm.
According to the police department investigative report prepared by Jersey City Police Officer J.D. Theodoroleas, on December 19, 2009, officers were interviewing individuals in a public hallway at a housing complex concerning a homicide which occurred the night before, when defendant entered the hallway with his right hand under the front of his jacket. Officer Theodoroleas ordered defendant to show his hands, but defendant did not comply, prompting other officers to stop defendant and search him for weapons. While he was being searched, defendant stated, "I ain't got no gun, I just got a couple of bottles[,]" which the officers understood to be slang for small glass vials used to hold drugs. At that point, defendant opened his hand, in which he held money and glass vials containing suspected cocaine and suspected heroin.
Subsequently, a grand jury returned Indictment No. 10-03-0592, charging defendant with two counts of possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one and five); two counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and six); two counts of possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); and two counts of possession of CDS with intent to distribute within 500 feet of real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:39-5(d) (counts four and eight).
On March 18, 2010, defendant filed an application to participate in the Hudson County Drug Court program. The Hudson County prosecutor rejected that application.*fn1 The prosecutor's office indicated its denial was predicated upon defendant's two prior convictions of possession of CDS with intent to distribute within 1000 feet of school property and the significant threat he poses to the community as a member of the Sex, Money, Murder sect of the Bloods' gang.
Defendant filed an appeal with the Drug Court judge in the Law Division, and briefs were submitted by both parties. After considering the respective positions advanced, the court found that the prosecutor's rejection of defendant's application for Drug Court constituted a patent and gross abuse of discretion. The judge explained:
The Court is going to find that based on the statements that I've just made before, in addition to the fact that minus the gang part that the Court finds that there is a patent gross abuse of discretion regarding this individual not being admitted into Drug Court where others have been admitted into Drug Court with a similar[,] if not worse record. Other than the gang affiliation proposition.
So therefore, the Court is going to find that in track one that there was a patent gross abuse of discretion. And also because of the danger part is, danger to the community is a part of track two, that's why I'm going to deal with, I'm dealing with both tracks.
However, for track two there is not enough information to show that there is a significant threat to the community.
The court stayed its preliminary decision, however, and a continuation of the hearing was scheduled. In the interim, defendant was evaluated by a substance abuse evaluator and determined to be clinically suitable for the Drug Court program. The substance abuse evaluator recommended long-term inpatient care.
At the start of the resumed hearing, the State offered to present evidence in camera concerning the State's position that defendant is a gang member; however, the State's proffer, which defense counsel characterized as an improper enlargement of the reasons previously given for rejecting defendant from the program, was so vague the court declined to conduct an in-camera inquiry. In that regard, the court inquired of the assistant prosecutor if the proffered information to be produced in camera would be the same as that which was included in the State's brief. The assistant prosecutor responded, "It could be, Your Honor, I don't know. I don't know how much information was given to me from [the] gang intelligence unit or how much information could be given to me. There might be additional questions that could be asked in camera, by Your Honor to our detective."
At another point, the court asked, "But for the gang, alleged gang membership, would the State be, [its] position be that Mr. Woodward would be a[n] eligible candidate?" To that inquiry, the assistant prosecutor replied, "Respectfully, Your Honor, the State chooses not to answer that question based on the fact that it is part of the formula that we use to assess the files."
Under such circumstances, the court did not conduct an in-camera review and, instead, concluded the prosecutor's rejection of defendant from the Drug Court program, based on an alleged gang affiliation that defendant denies, was unsubstantiated. More specifically, the court found there were no records indicating defendant had self-identified as a Blood, and no report of what gang paraphernalia may have been observed or seized from him. The court also noted that a nickname or "street name" does not demonstrate gang membership. Citing further the State's unwillingness to divulge certain factors used to deny defendant's application, the court found "there was a clear abuse of discretion under track one," and accordingly, ordered that defendant be admitted to the Drug Court program. The court determined that defendant's admission to the Drug Court program was also appropriate under track two. We granted the State's motion for leave to appeal from these determinations.
"Drug Courts are specialized courts within the Superior Court that target drug-involved 'offenders who are most likely to benefit from treatment and do not pose a risk to public safety.'" State v. Meyer, 192 N.J. 421, 428 (2007) (quoting Administrative Office of the Courts, Manual for Operation of Adult Drug Courts In New Jersey, Directive # 2-02 (July 22, 2002), available at http://www.judiciary.state.nj.us/ directive/criminal/dir_02_02.pdf) (Manual). "Participants in drug court programs are subject to intensive supervision, frequent drug testing, and regular court appearances, combined with treatment and recovery services." Id. at 429. A defendant may gain admission into the Drug Court program by two "tracks."
"Under the first track, to meet the requirements for 'special probation,' [pursuant to N.J.S.A. 2C:35-14,] the applicant must have committed a crime that is subject to a presumption of incarceration or a mandatory prison term, and the judge must find that the applicant satisfies nine separate factors." Clarke, supra, 203 N.J. at 175. Thus, admission requires the court to find: that defendant is "drug or alcohol dependent," committed the underlying offense while "under the influence" of a controlled dangerous substance, "did not possess a firearm" at the time of offense or any pending charge, and that defendant will "benefit" from the program which "will thereby reduce the likelihood that [he or she] will thereafter commit another offense." N.J.S.A. 2C:35-14(a)(1)-(5). Defendants convicted of certain offenses and charged with certain crimes are per se ineligible, N.J.S.A. 2C:35-14(a)(6), (7), and a licensed facility approved by the Department of Health must agree "to provide appropriate treatment services," N.J.S.A. 2C:35-14(a)(8). Moreover, the court must find that "no danger to the community will result from the person being placed on special probation," N.J.S.A. 2C:35-14(a)(9).
N.J.S.A. 2C:35-14(a) also requires that the court consider "all relevant circumstances" including those developed at "the trial, plea hearing or other court proceedings," as well as the "presentence report and the results of the professional diagnostic assessment to determine whether and to what extent the person is drug or alcohol dependent and would benefit from treatment."
N.J.S.A. 2C:35-14(a). [State v. Hester, 357 N.J. Super. 428, 438-39 (App. Div. 2003) (alterations in original), certif. denied, 177 N.J. 219 (2003).]
Ordinarily, a defendant is not eligible for the Drug Court program, under N.J.S.A. 2C:35-14(a), if the prosecutor objects to the person being placed on special probation. N.J.S.A. 2C:35-14(c)(2). However, a court may still sentence a defendant to special probation under that statutory authorization if it finds a "gross and patent abuse of prosecutorial discretion." Ibid.
"The 'patent and gross abuse of discretion' standard has evolved from our case law regarding PTI [pretrial intervention]." Hester, supra, 357 N.J. Super. at 441. As we have explained in Hester:
To succeed on . . . appeal, therefore, "defendant must show that the prosecutor's decision '(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.'" Moreover, to rise to the level of "patent and gross abuse of discretion," it must be shown "that the prosecutorial error complained of would clearly subvert the goals underlying" the Drug Court program. Thus, "a prosecutor's decision to reject a [Drug Court] applicant 'will be rarely overturned.'" [Id. at 443 (quoting State v. Brooks, 175 N.J. 215, 225 (2002) (alteration in original) (internal citations omitted)).]
In defining a "clear error of judgment," the Supreme Court has stated:
In other contexts we have explained that an error in applying guidelines to the facts of the case must be clearly unreasonable so as to shock the judicial conscience, before it may be branded a clear error of judgment. Such an error is one that could not have reasonably been made upon a weighing of the relevant factors. We seek to avoid the substitution of appellate judgment for the judgment of the agency responsible for the function involved, be it prosecutorial or judicial. [State v. Nwobu, 139 N.J. 236, 253-54 (1995) (internal citations and quotation marks omitted).]
Thus, our review of the trial court's decision inquires whether there was sufficient evidence to support the court's finding that the prosecutor's decision was arbitrary, irrational or otherwise an abuse of discretion, a gross and patent abuse of discretion. See State v. Wallace, 146 N.J. 576, 585 (1996).
Under the second track, applicants may "be admitted into Drug Court 'under the general sentencing provisions of the Code of Criminal Justice.'" Clarke, supra, 203 N.J. at 175 (citing Meyer, supra, 192 N.J. at 432). The applicant must convince the judge that a probationary sentence under the general sentencing provisions of the Criminal Code is appropriate. Id. at 176. "The judge should weigh the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1(a) and (b) and 'determine whether a probationary or custodial sentence is appropriate.'" Ibid. (quoting State v. Baylass, 114 N.J. 169, 173 (1989)). "If the judge concludes that a probationary sentence is appropriate, a probationary term not to exceed five years in accordance with N.J.S.A. 2C:45-2 may be imposed." Clarke, supra, 203 N.J. at 176.
The prosecutor's view should be considered along with the views of other members of the Drug Court team, "[h]owever, the prosecutor's position . . . is not given the special deference afforded in the first track." Ibid. "[T]he decision whether to admit the applicant into Drug Court is essentially a sentencing one." Id. at 177. "[A]s long as the sentence is within the statutory framework, we afford wide discretion to the judge's decision." Ibid. Further, we note the Court's observation in Meyer that "[i]t is inconceivable that the Legislature granted a trial court power to impose a probationary sentence, but not the power to attach the one condition necessary to address the offender's desperate needs-a drug rehabilitation program." 192 N.J. at 436 (citing State v. Lewis, 185 N.J. 363, 369 (2005)).
The State first argues defendant was properly rejected from the Drug Court program pursuant to N.J.S.A. 2C:35-14(a)(9) which requires the court to find "no danger to the community will result from the person being placed on special probation." The
State maintains defendant is a self-admitted gang member and gang members are a significant threat to the community. The State asserts it determined defendant to be a gang member by GangTrak, computer software used by the Prosecutor's Office to form a database of gang affiliation, and it explains the information on gang affiliation is gleaned from the admissions of prisoners during their time of incarceration and physical observations, such as tattoos. The State also relied on an e-mail from Detective Miguel Matos of the Hudson County Police Gang Task Force, which stated defendant "self-admitted that he is a member of the street gang known as the Bloods' set Sex, Money, Murder in February of 2009." The e-mail also stated, without detail, that defendant "possessed gang paraphernalia during his prior incarceration."
The Drug Court judge found this claim of gang affiliation was unsubstantiated and therefore an inappropriate factor for its consideration. The court noted first that defendant expressly denied any gang affiliation. The court also noted that the State's claim was not supported by any evidence, such as a record indicating defendant's self-identification or a report of the paraphernalia observed or seized. Absent independent verification, the court concluded the claimed gang affiliation was unreliable. The court also held that since defendant did not have access to the information contained on GangTrak, the information was not consistent with due process or the listed resources outlined in the Manual for legal screening of Drug Court applicants.
The State sought to justify the nondisclosure of information on GangTrak by asserting it is work-product and not subject to discovery. Notably, "[i]n order for the [work-product] doctrine to apply, the materials must have been prepared in anticipation of litigation and not in the ordinary course of business." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554 (1997). In addition, a party requesting work-product materials must show a "substantial need" of the materials and an inability without an undue hardship to obtain the substantial equivalent of the materials by other means. R. 4:10-2(c); In re Envtl. Ins. Declaratory Judgment Actions, 259 N.J. Super. 308, 319 (App. Div. 1992).
Here, the information is put into the computer by the gang divisions of the Department of Corrections and the Prosecutor's Office. The information included on the software is the individual's name, SBI number, gang affiliation, aliases and distinctive markings. Based on the State's description, this information does not appear to have been prepared in anticipation of litigation. Rather, it appears only to track known or asserted gang members and their affiliation. Without further validation or elaboration on the accuracy of the information, it was within the exercise of sound discretion by the Drug Court to refuse to accept the conclusory information on GangTrak or to find that it falls within the protected work-product exception. See, e.g., Payton, supra, 148 N.J. at 555.
In explaining the level of sufficiency required to be furnished by the
prosecutor in a statement of reasons for denial of PTI, the Supreme
Court anticipated a scenario in which a refusal of admission would be
partly based on allegedly confidential information.*fn2
The Court stated:
Where furnishing reasons to defendant would be unduly prejudicial to law enforcement efforts, for example, by requiring the revelation of confidential or sensitive information from an informant, the prosecutor may apply to the designated judge for an in camera hearing. At this hearing, the prosecutor would be required to present justification for his reluctance or refusal to state reasons. The judge would thereafter determine whether the State's interest sufficiently outweighed the interest of the defendant in obtaining a statement of reasons. [State v. Leonardis, 71 N.J. 85, 119 (1976).]
Though the State has asserted in this case that it has presented sufficient evidence that this defendant is a self-admitted gang member, that assertion is conclusory and disputed by defendant. At the resumption of the hearing on July 14, 2010, the State offered to have Detective Matos and some other member of the gang task force testify in camera, but the assistant prosecutor could make no representation or proffer as to the type of information the detective might have or whether it differed in any way from the assertions contained in the State's brief. Defendant's counsel objected to what counsel perceived as the State's attempt to expand the record regarding its reasons for denial of the defendant's application, and the court determined it would not conduct an in-camera hearing after the assistant prosecutor could not give any insight into the proofs that were available and directly declined to address whether, but for the alleged gang affiliation, defendant was eligible for the Drug Court program. We do not discern a misapplication of the court's direction.
The State now argues the court could not have made a proper determination whether the assistant prosecutor considered all relevant factors without an in-camera hearing. We note, based on our careful review of the record, that the State's proffer of an in-camera review was essentially "too little, too late." Although we are of the view that a meaningful in-camera hearing might have yielded helpful information that would have either bolstered or undercut the position of the assistant prosecutor, the tender or proffer made on behalf of the State was wholly unilluminating and so lacking in any promise that meaningful evidence would be forthcoming, that it was understandably rejected. We are satisfied the Drug Court judge did not abuse her discretion when she declined the belated and seemingly empty proffer from the State and accepted the defendant's unequivocal denial of gang membership. Without support for defendant's gang affiliation, the State had no basis to contend that defendant posed a threat to the community.
The State also argues the Drug Court incorrectly evaluated defendant as a track-two applicant because of his two prior convictions for possession of CDS with intent to distribute within 1000 feet of school property. We disagree.
In Clarke, supra, the Supreme Court explained:
The applicant must either meet the requirements for special probation pursuant to N.J.S.A. 2C:35-14, track one, or otherwise be eligible under other sections of the Code of Criminal Justice[,] track two.
The second track permits applicants to be admitted into Drug Court under the general sentencing provisions of the Code of Criminal Justice. [203 N.J. at 174-76 (alteration in original) (internal citations and quotation marks omitted).]
Here, the Drug Court found, contrary to the State's arguments, that defendant is not necessarily facing a mandatory term of incarceration because the State had not applied for an extended term pursuant to N.J.S.A. 2C:43-6(f). That statute provides, in pertinent part, that upon the State's application, a court must impose an extended term for a defendant convicted under N.J.S.A. 2C:35-5 or N.J.S.A. 2C:35-7 where the defendant has previously been convicted of an offense under chapter 35 of our Criminal Code. N.J.S.A. 2C:43-6(f). However, even if such an application were made, the court could reduce or waive the mandatory prison term, pursuant to a recent amendment to N.J.S.A. 2C:35-7. As amended, N.J.S.A. 2C:35-7 provides, in pertinent part, as follows:
b. (1) Notwithstanding the provisions of N.J.S. 2C:35-12 or subsection a. of this section, the court may waive or reduce the minimum term of parole ineligibility required under subsection a. of this section or place the defendant on probation pursuant to paragraph (2) of subsection b. of N.J.S. 2C:43-2. In making this determination, the court shall consider:
a. the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted;
b. the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location;
c. whether school was in session at the time of the offense; and
d. whether children were present at or in the immediate vicinity of the location when the offense took place.
2. The court shall not waive or reduce the minimum term of parole ineligibility or sentence the defendant to probation if it finds that:
a. the offense took place while on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or while on any school bus; or
b. the defendant in the course of committing the offense used or threatened violence or was in possession of a firearm.
According to the court's reasoning, until defendant pleads guilty or is convicted and the prosecution then applies for an extended term, the defendant does not face a minimum sentence requirement as the court could reduce or waive his minimum prison term pursuant to specific criteria listed under N.J.S.A. 2C:35-7(b)(1).
In State v. Kirk, 145 N.J. 159 (1996), the Court affirmed the constitutionality of N.J.S.A. 2C:43-6(f), in light of the statewide guidelines issued by the Attorney General to govern the State's decision to apply for an extended term. Id. at 173. These guidelines were incorporated into the Attorney General Brimage Guidelines 2, Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (Rev. 2004), http://www.nj.gov/oag/dcj/agguide/directives/brimagerevision.htm (Brimage Guidelines). Brimage Guidelines at 16. The Brimage Guidelines also incorporated the Attorney General Law Enforcement Directive 1998-1, which mandates that prosecutors apply for an extended term against a repeat offender of N.J.S.A. 2C:43-6(f). Brimage Guidelines at ix ("The provisions of Attorney General Directive 1998-1 . . . shall remain in full force and effect."); Attorney General Law Directive 1998-1 Prosecuting Cases under the Comprehensive Drug Reform Act. The Brimage Guidelines specifically note "[t]hese Guidelines and Attorney General Directive 1998-1 make clear that a prosecutor must seek an extended term under N.J.S.A. 2C:43-6(f) in all cases where that statute applies unless there is a basis for waiver in accordance with these Guidelines." Brimage Guidelines at 59.
Here, based on the Brimage Guidelines, "[d]efendant is eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6(f) by virtue of defendant's having previously been convicted twice of distributing or possessing with intent to distribute CDS, regardless of the degree of the prior drug distribution-type offense or the number of criminal history points." Id. at 57. The court's ability to reduce or waive a defendant's minimum term of parole ineligibility and/or mandatory prison term is an expressly-authorized legislative exception to the mandate for uniform sentencing. A court may decline to impose a term of imprisonment or term of parole ineligibility authorized or required to be imposed pursuant to N.J.S.A. 2C:43-6(f). N.J.S.A. 2C:35-7(b).
Moreover, a motion by the State for extended sentencing prior to defendant's plea would be premature, as Rule 3:21-4(e) requires the filing of such motions within fourteen days of defendant's guilty plea or return of verdict. The record does not indicate a negotiated disposition.
Although we recognize that the standard is high to overturn a prosecutor's rejection of an applicant for the Drug Court program, in this case, the Drug Court judge had an ample basis to conclude that the standard had been met and that there was no reliable evidence that defendant was a gang member who posed a substantial threat to the community. See Meyer, supra, 192 N.J. at 434. We are not satisfied that defendant faces a mandatory term of imprisonment and, even if he does, he was appropriately considered by the Drug Court judge as a track-two applicant.