April 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DONALD K. SERVENTI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 08-09-01330, 08-11-01695.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2012 -
Before Judges Payne and Hayden.
Defendant Donald K. Serventi appeals from the January 4, 2010 decision of the Law Division judge, denying his appeal of the State's rejection of his application for entry into the Pretrial Intervention (PTI) program. R. 3:28. Subsequent to the denial, defendant pled guilty to two separate indictments for fourth-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C: 35-5b(12), and received a sentence of eighteen months probation on each indictment, to run concurrently. On appeal, defendant argues the State's rejection of his PTI application was arbitrary and constituted a gross abuse of discretion. We disagree and affirm.
The facts relevant to this appeal are as follows. During the week of October 28, 2007, a confidential informant told a Barnegat police officer that defendant was selling marijuana from his home. During the next three weeks, the CI made three controlled purchases from defendant of substances that were later determined to be marijuana. During the week of November 11, 2007, the CI reported that defendant told him he would soon be in possession of "a quantity" of marijuana.
As a result of this information, the police obtained a search warrant, went to defendant's home, and found 30.7 grams of marijuana in small plastic bags and a digital scale. After being read his Miranda*fn1 rights and signing a waiver, defendant told the police that he only sold enough marijuana to pay for his own drug supply. He later denied selling marijuana and said he just gave it to friends. The police arrested defendant and charged him with possession of marijuana under fifty grams, possession of less than one ounce of marijuana with intent to distribute, and possession of drug paraphernalia.
In August 2008, while the above charges were still pending, another CI reported to the police that defendant was selling marijuana out of his residence. During the next two weeks the CI made three controlled buys from defendant of substances later determined to be marijuana. As a result of these purchases and a statement defendant made to the CI that he had "a quantity" of marijuana, the police obtained a search warrant for defendant's home. During the search the police found a small amount of marijuana, packaging, and a digital scale. Defendant was arrested and charged with possession of under fifty grams of marijuana, possession of less than one ounce of marijuana with intent to distribute, and possession of drug paraphernalia.
After his second arrest, defendant applied for admission into the PTI program in order to resolve both cases. Upon investigating the application, the PTI Director determined on October 19, 2009, that defendant was not an appropriate candidate for the program. Based upon a very detailed report of the PTI senior probation officer, the Director concluded that the harm done to society by abandoning criminal prosecution of defendant would outweigh the benefit to society and that the value of supervisory treatment to defendant would be outweighed by the public need for prosecution. N.J.S.A. 2C:43-12e(17). In particular, he expressed grave concern about defendant continuing to sell illegal drugs even after his first arrest in 2007. He also found that evidence disclosing that defendant was selling illegal drugs for several weeks in November 2007 and again in August 2008 and his admission that he sold these drugs to get money to buy his own drugs demonstrated that the crimes were part of a continuing criminal business or enterprise for which there was a presumption of non-admittance into PTI. R. 3:28, Guideline 3(i)(2). In addition, the Director noted that defendant did not appear motivated to participate in the program, as during the interview defendant could not decide whether he wanted to join.
On October 19, 2009, the county prosecutor adopted the PTI Director's decision and denied defendant admittance into the PTI program. On January 4, 2010, the Law Division judge denied defendant's appeal, concluding that the prosecutor considered all relevant factors, and "did not commit an abuse of discretion, much less a patent and gross abuse of discretion."
"The primary purpose of [PTI] is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2008). PTI, an alternative to criminal prosecution, provides supervisory treatment in lieu of criminal sentencing for defendants whose criminal activity can be deterred through such supervisory treatment. Id. at 517-18. PTI is regulated by N.J.S.A. 2C:43-12 and Rule 3:28. To effectuate the purpose of PTI, "[e]ligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change . . . ." Watkins, supra, 193 N.J. at 513.
Nonetheless, N.J.S.A. 2C:43-12 and Rule 3:28 recognize that not all defendants are appropriate candidates. Ibid. "[D]efendants who have committed certain crimes are viewed as problematic from a rehabilitation perspective." Id. at 519. For instance, as the PTI Director noted in the case at bar, when a person commits an offense as part of a continuing criminal business or enterprise, his or her application should generally be rejected. R. 3:28, Guideline 3(i)(2). This Guideline creates a "presumption against acceptance" into PTI for defendants whose crimes fall into the enumerated categories. State v. Baynes, 148 N.J. 434, 442 (1997). However, this presumption may be overcome if a defendant establishes "compelling reasons" for admission. State v. Nwobu, 139 N.J. 236, 252 (1995).
Diversion of candidates into PTI is a prosecutorial function and the prosecutor is endowed with great discretion in deciding whether to prosecute or divert defendants. State v. Wallace, 146 N.J. 576, 582 (1996). Consequently, judicial review of a decision to reject a PTI application is severely limited. Nwobu, supra, 139 N.J. at 246. Interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Leonardis, 73 N.J. 360, 384 (1977)).
In order to successfully challenge a prosecutor's rejection, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (internal quotation marks omitted). This is a heavy burden for any defendant to fulfill. State v. Mosner, 407 N.J. Super. 40, 55 (App. Div. 2009). Our Supreme Court has defined the test for a patent and gross abuse of discretion:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI]. [State v. Bender, 80 N.J. 84, 93 (1979)
(internal citations omitted).]
Based upon the above principles, we are satisfied that the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion. Defendant argues that he is fifty-three years old, a college graduate and a former restaurant owner with no felony convictions who would benefit from the PTI program. He further argues that the prosecutor focused too much on the continuous nature of the conduct and the fact that he had two separate indictments rather than considering fully his positive traits. We find that the record demonstrates that the prosecutor evaluated all essential information about defendant, including the pending charges and his individual circumstances. Thus, defendant has not met his heavy burden of showing a compelling reason to overcome the presumption against PTI admission.
We are satisfied that the prosecutor considered all the factors set forth in N.J.S.A. 2C:43-12 and Rule 3:28. Consequently, we conclude based upon the record before us that the prosecutor's rejection of defendant's PTI application was consistent with the statutory requirements and the PTI Guidelines and did not constitute an abuse of discretion.