On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-11-2055.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012 -
Before Judges Parrillo and Hoffman.
This is an appeal by the State from a February 7, 2011 order of the Law Division overturning the prosecutor's rejection and granting defendant Sean Bell admission into the pretrial intervention program (PTI). For the following reasons, we reverse.
Indicted along with co-defendant Thomas S. for second-degree and
third-degree aggravated assault, N.J.S.A. 2C:12-1b(1); N.J.S.A.
2C:12-1b(7), defendant was tried by a jury and convicted of
third-degree attempted aggravated assault after the second-degree
charge was dismissed at the close of the State's case.*fn1
The proofs at trial indicated that at around 11:40 p.m. on
June 25, 2006, a fight broke out in front of the house where a high
school graduation party was being held, hosted by the Shan and Bell
families for their children. When confronted by Scott Shan, defendant
became "irate and combative[,]" cursing and yelling "[y]ou kicked my
friends out of here." In an attempt to physically restrain him, Shan
wrestled defendant to the ground and then climbed on top of him to
calm him down. When Shan eventually released him, defendant
"immediately began provoking Michael Higgins by yelling at him[,]"
even though Higgins told defendant that he was a corrections officer
and was trying to diffuse the situation. As Higgins was walking with
defendant attempting to calm him down, Higgins tripped on
decorative rocks around a koi pond and fell to the ground. Shan then
observed defendant and Thomas S. and Matthew S. strike Higgins in the
head and face with closed fists "multiple
times[,]" even after
Higgins was knocked unconscious. Higgins sustained head trauma, facial
lacerations requiring sutures, and dental partial avulsions.
After his conviction but prior to sentencing, defendant applied for PTI. His application was rejected on April 22, 2010 by the program director, who cited the nature of the offense, N.J.S.A. 2C:43-12e(1) and Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) of R. 3:28 (2012); the facts of the case, N.J.S.A. 2C:43-12e(2); and that the crime was assaultive or violent in nature, or had possible injurious consequences, N.J.S.A. 2C:43-12e(10). Specifically, the PTI director found:
According to PTI guideline 3(1)(3), if the crime was deliberately committed with violence or a threat of violence against another person, the defendant's application should generally be rejected. The victim sustained [l]acerations to his upper lip, left eyebrow, and inside of his bottom lip. The victim had to see a dentist due to several teeth being loosened. The victim's top two front teeth had to be wired in place. The police reports reveal that you assaulted Michael Higgins. There is no justification for assaulting another individual.
The PTI director also cited the needs and interests of the victim and society, N.J.S.A. 2C:43-12e(7); that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12e(14); and that the harm done to society by abandoning criminal prosecution would outweigh the benefit to society, N.J.S.A. 2C:43-12e(17), reasoning that "[a]ggravated assault . . . is not a victimless offense."
Lastly, the PTI director found the application untimely under Rule 3:28(h), which requires application be made at the earliest possible opportunity but no later than twenty-eight days after indictment. Here, defendant did not apply for PTI until March 26, 2010, well after his superseding indictment was filed on November 12, 2009, and following his conviction.
On June 2, 2010, the Prosecutor denied defendant's PTI application for the reasons stated by the PTI director as well as "the victim's unwillingness to forego prosecution[,]" N.J.S.A. 2C:43-12e(4). As to the latter, in his letter of rejection, the prosecutor stated that "Higgins ha[d] been opposed to PTI from the beginning of this case, and continues to be opposed to [defendant's] entry into PTI now. There was a jury trial conducted in which the [v]ictim testified, and he has been in agreement with the full prosecution of this case from its inception."
Defendant appealed the denial to the Law Division, arguing disparate treatment compared to his co-defendant and seeking to excuse the delay by claiming counsel advised he was ineligible because he was charged with a second-degree offense. After entertaining oral argument, the judge requested the Prosecutor's Office reconsider its decision in light of its approval of Thomas S.'s PTI application:
The Court is aware that all testimony in the jury trial has not been provided to the Court. However, upon review of Mr. Shan's testimony at trial, it appears that both [defendant] and Mr. [S.] were seen hitting the victim with ...