On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1754.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Maven.
Defendant Ezekiel Daniels appeals from the Law Division order upholding the denial of his admission to the pretrial intervention program (PTI). We reject defendant's arguments and affirm.
In November 2007, defendant was playing loud music from his parked vehicle near a residential apartment complex at 3:00 a.m. According to the police report, there were approximately twenty unknown men and women wearing red and black clothing and waving black flags, while doing "the crip walk" and dancing in the street. East Orange Police Officers, conducting a quality-of-life patrol, arrived in marked police cars, with overhead lights and sirens activated and ordered the crowd to disperse. The crowd disregarded the officers' commands. The officers called for the owner of the vehicle to identify himself; and a male, later identified as defendant, responded in a loud tone, "I am, what." The officers instructed him to lower the music and asked for his driver's license and credentials. Defendant failed to comply and was again instructed to lower his music and have a seat in his vehicle. Defendant refused, stating, "Why, for what?" At that point, he was arrested and charged with disorderly conduct.
During their pat down of defendant, the officers learned that he was an off-duty Essex County Sheriff's Officer carrying a fully loaded handgun that was not departmentally-issued, which he was not authorized to carry. Defendant was charged with unlawful possession of a weapon.
Defendant applied for admission to PTI. The program director recommended defendant for admission based on his "lack of a criminal record" and "cooperative attitude." However, the prosecutor rejected the application stating, among other reasons, that "defendant illegally possessed [ ] a fully loaded handgun in his car, while a group of individuals surrounding him were [sic] engaged in gang-related behavior."*fn1 The prosecutor also stated, "[t]here was a clear threat of violence present in this case . . . . Moreover, this type of behavior needs to be deterred, as gun violence plagues Essex County neighborhoods." Defendant appealed to the Law Division seeking admission to PTI.
The judge concluded that the prosecutor's rejection of defendant's application was based, in part, on inappropriate factors and remanded defendant's application for reconsideration by the prosecutor's office. After the prosecutor rejected defendant's PTI application a second time, the judge considered defendant's motion to compel admission anew. The prosecutor argued that, notwithstanding the inappropriate factor, the reasons for denying defendant admission into PTI were nonetheless sufficient. Upon considering the record and applying the deferential judicial standard of review applicable to PTI denials, Judge Fullilove upheld the prosecutor's decision to deny defendant's application to the PTI program. Thereafter, pursuant to a plea agreement, defendant pleaded guilty to third-degree unlawful possession of a weapon. The judge sentenced defendant to a one-year probationary term. The requisite fines and monetary penalties were also imposed.
Defendant appeals the order denying his admission into PTI and contends:
POINT I. AFTER BEING ORDERED BY THE TRIAL JUDGE TO RECONSIDER DANIELS' PTI APPLICATION, THE PROSECUTOR STOOD BY HER INITIAL DECISION TO REJECT DANIELS DESPITE THE PROGRAM DIRECTOR'S RECOMMENDATION FOR ADMISSION AND DANIELS' CLEAR SUITABILITY FOR PARTICIPATION IN A SUPERVISORY PROGRAM AS EVIDENCED BY HIS HIGHLY DECORATED MILITARY SERVICE. THE PROSECUTOR'S DECISION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION AND MUST BE REVERSED.
A. THE SIGNIFICANT RELIANCE PLACED ON DANIELS' STATUS AS A SHERIFF'S OFFICER WAS INAPPROPRIATE.
B. THE SERIOUSNESS OF HIS OFFENSE DID NOT OUTWEIGH DANIELS' AMENABILITY TO A REHABILITATIVE PROCESS AS EVIDENCED BY FOUR YEARS OF HIGHLY DECORATED MILITARY SERVICE.
C. THE PROSECUTOR'S ERROR IN REFUSING TO ADMIT DANIELS TO PTI ROSE TO THE LEVEL OF "PATENT AND GROSS" BECAUSE IT ...