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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...