April 12, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RICHARD W. BROWNBRIDGE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-04-00391.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2012
Before Judges Parrillo and Hoffman.
The State appeals from a June 24, 2011 order admitting defendant Richard W. Brownbridge, into the Pretrial Intervention Program (PTI) over the objection of the Union County Prosecutor's Office. For the following reasons, we reverse and remand.
Defendant was indicted for second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). The indictment stemmed from an incident that occurred on October 16, 2010, outside defendant's residence in Union.
The facts, which are somewhat disputed, are as follows. During the summer of 2010, defendant, who is a sixty-one-year-old retired police officer, had employed Ruben Acosta, a local handyman, to help with yard work at defendant's home. Around the time of Acosta's employment with defendant, certain items including clothing and jewelry disappeared from defendant's home. Although defendant suspected that Acosta had stolen the items, he did not file a complaint. Defendant questioned Acosta, who denied taking the items. Nevertheless, defendant told Acosta not to return to his property.
On October 16, 2010, Acosta was working at a house next door to defendant's home. Upon seeing Acosta walking in the area between his home and his neighbor's home, defendant went into his house and emerged with a black revolver tucked in his waistband. The revolver was loaded with hollow-nose bullets. According to the State, defendant then warned Acosta to get away from his house, and at one point drew his weapon, pointed it at Acosta, and threatened to kill him. Acosta fled the area and flagged down a nearby police officer, who arrested defendant. Defendant admits drawing his gun and telling Acosta to get off his property, but maintains that he pointed it at the ground rather than at Acosta.
Prior to his indictment, defendant applied for admission into the PTI program. His application was rejected on February 15, 2011 by the Union County Prosecutor, who cited the factors in N.J.S.A. 2C:43-12(e) and Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) of R. 3:28 (2012) (hereinafter "Guideline 3(i)"). Specifically, the prosecutor cited the nature of the offense, N.J.S.A. 2C:43-12(e)(1); and that the charged offense involved a threat of violence to another person, Guideline 3(i)(3). The prosecutor noted the directive in Guideline 3(i) that "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."
As defendant was charged with an offense involving a threat of violence against another person, the prosecutor noted the rebuttable presumption that defendant is ineligible for PTI. See Pressler, Current N.J. Court Rules, comment on Guideline 3, R. 3:28 (2012). Although the prosecutor took into account defendant's age, prior career as a police officer and lack of prior convictions, he found that "based on the nature of the offenses and the presumption of his ineligibility for admission to PTI, the need to deter others from committing similar crimes and important public policy concerns implicated by his conduct, the defendant's application to participate in [PTI] must be rejected."
Pursuant to Rule 3:28(h), defendant appealed the rejection of his application to the Law Division, arguing that the prosecutor failed to consider defendant's account of the incident and defendant's personal background and circumstances. On June 24, 2011, following argument, the court ordered defendant's admission into the PTI program over the prosecutor's objection. The court, finding that the prosecutor had committed a "clear error in judgment," opined that the State had unfairly construed the facts of the incident giving rise to defendant's arrest:
You're saying that the nature and circumstances of this case are such that he should be precluded from PTI. And what I'm saying is that if you have not looked at all these facts correctly, then you're not looking at the nature and extent of the case correctly, that there is a reasonable version of events here that an individual whose home and property had previously been invaded, saw that individual on a neighbor's property, perceived that he was a threat again to his property, went and armed himself and did nothing more than to say, do not come on my property, leave this area, and that that was reasonable under the circumstances, that there was not an unlawful purpose in arming himself, that there was a perfectly lawful purpose to preserve his own property, and that that is - that's an unreasonable position in itself without considering all of the facts and circumstances.
To tell you the truth, I think it's outrageous that the police made an arrest at this time without further documentation. I think it's outrageous that the prosecutor's office allowed a complaint to be filed and approved the issuance of a complaint without further investigation in this case. I think it's a clear error in judgment on the prosecutor's part. I think that they failed to consider properly the issues of defense of property, and I'm overruling the denial. I'm ordering him to be placed into PTI.
Defendant's entry into the program was stayed until July 15, 2011, pending the State's appeal of the Law Division's order. This appeal by the State follows.
Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). "Admission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). A determination whether to admit a defendant is "'primarily individualistic in nature,' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility, prosecutors must consider the factors in N.J.S.A. 2C:43-12 and Rule 3:28, and the accompanying Guidelines, which "elucidate the purposes, goals, and considerations relevant to PTI." Negran, supra, 178 N.J. at 80 (internal quotation marks and citation omitted).
A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect 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." Negran, supra, 178 N.J. at 82.
Accordingly, a court's scope of review of such a decision is "severely limited," and has been characterized as one of "'enhanced' or 'extra'" deference. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)); see 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). Therefore, "[i]n order to overturn a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (internal quotation marks and citation omitted). "The question is not whether [the court] disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.
Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. The trial court, in its decision overruling the prosecutor's rejection of the application, effectively considered the merits of the State's case by weighing defendant's claim of self-defense, and finding that defense to be meritorious. The court also questioned the prosecutor's decision to credit Acosta's version of the incident over defendant's. Despite the State's objections at argument that defenses and matters of credibility are properly addressed in a motion to dismiss the indictment, or may be relevant to plea negotiations, the trial judge relied substantially on his own determinations on these matters in overruling the prosecutor's rejection.
Although the nature of the offense is a factor for determining eligibility for PTI, see Guideline 3(i), nothing in the statute's criteria for admission, N.J.S.A. 2C:43-12(e), or the accompanying Guidelines, requires a prosecutor to credit a defendant's account of the events. Nor is it appropriate at this stage of the proceedings to consider defendant's guilt or innocence. Nwobu, supra, 139 N.J. at 252 (noting that "the PTI process is not designed to assess the weight of the State's case"); State v. Smith, 92 N.J. 143, 147 (1983) (reversing a trial court's order admitting defendant into PTI and holding that "although the nature of the offense is one of the multiple factors that a program director or prosecutor may consider, a court may not reverse an otherwise well-founded PTI decision because of the insufficiency of evidence of guilt."). The court thus erred in considering the merits of defendant's claim of self-defense in overruling the prosecutor's decision.
We note also that the court made no finding that defendant had rebutted the presumption against PTI eligibility. See Guideline 3(i). Rather, the judge, expressing his dissatisfaction that the case had proceeded through the grand jury and indictment phases, based his decision on a disagreement with the prosecutor's discretionary decision to charge defendant despite his claims of self-defense, which the trial court viewed as meritorious. In light of the trial court's extremely limited review of a prosecutor's determination on a PTI application, the judge erred by effectively substituting his own judgment for that of the prosecutor.
Here, the record fully supports the prosecutor's denial of defendant's application, based on a finding that defendant had failed to rebut the presumption of ineligibility due to the threatening nature of the offense. There was no abuse of discretion in the prosecutor's finding that defendant's long and distinguished career as a West Orange police officer did not sufficiently tip the scale in favor of admission. "[I]t is . . . well settled that a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged." Kraft, supra, 265 N.J. Super. at 115. We find no reason to disturb the prosecutor's decision that defendant's past career did not rebut the presumption of ineligibility.
We perceive no patent or gross abuse of discretion in the prosecutor's denial of defendant's PTI application. Accordingly, we reverse the order under appeal and remand the matter to the Law Division for further proceedings.
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