On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-01-0050.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2012
Before Judges A. A. Rodriguez and Sabatino.
Defendant Massiah Merritt appeals the trial court's order upholding his denial of admission to the pretrial intervention program ("PTI"), following his rejection by the PTI program director and prosecutor in Somerset County. He argues that the rejection was a "patent and gross abuse of discretion." In particular, he contends that his PTI application was not given sufficient individualized attention, that the State improperly applied a presumption against his admission under Guideline 3 of Rule 3:28, and that his rejection defeats the purposes of the program. We reject these contentions and affirm.
The underlying charges against defendant stem from his fraudulent use of a credit card on two occasions on December 7, 2008. Specifically, defendant bought a Sony Playstation at a mall, and then later that same day he attempted to buy merchandise from an Apple computer store. At the time of these offenses, defendant had just turned eighteen years old.
The main reason that defendant was rejected from PTI was that he had two serious charges pending against him in the State of New York for attempted robbery and possession of a weapon. Both of these New York charges were ultimately downgraded -- one to a misdemeanor and the other to a disorderly persons offense.
After the PTI program director and the prosecutor's office initially rejected defendant from the program, defendant filed a motion with the trial court seeking to overturn that determination. The trial court remanded the matter so that defendant could be interviewed by the criminal case manager.
Following that interview, the program director and the prosecutor reiterated their mutual decision to reject defendant's application. Among other things, the PTI director and the prosecutor underscored defendant's continuing pattern of antisocial behavior, including his recent offenses in New York, and their assessment that supervision under the PTI program was not likely to sufficiently address defendant's criminal proclivities.
Upon considering the record and applying the deferential judicial standard of review applicable to PTI denials, Judge Paul W. Armstrong sustained defendant's rejection from the program. Thereafter, defendant pled guilty to the four third-degree offenses charged in the indictment. He received a sentence of two years of probation, plus fifty hours of community service and customary fines. Defendant now appeals the trial court's order denying his admission into PTI.
As established in N.J.S.A. 2C:43-12e and as implemented in our criminal courts under Rule 3:28, PTI is a discretionary program. A defendant's admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor's assessment is to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12e(1)-(17).
Because of "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). That deference to the prosecutor has been described as "'enhanced' or 'extra'" in nature. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)).
The scope of judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). As the Court noted in Negran, judicial review of PTI denials "serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); see also State v. DeMarco, 107 N.J. 562, 566 (1987). Therefore, "[a] defendant attempting to overcome a prosecutorial veto [of PTI admission] 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 discretion before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent.'" Negran, supra, 178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246).
These stringent standards for overturning the denial of PTI admission are not met in this case. Although defendant is a young man, his multiple offenses in New York and New Jersey within a very short period of time provided the program director and the prosecutor with ample grounds for rejecting him from PTI. We discern no misapplication of Guideline 3, nor any failure to accord defendant individualized attention, particularly after the trial court's remand that provided a second opportunity to give defendant's application careful consideration. Even though the ...