August 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
DARWIN MARTINEZ, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 10-04-0334.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 21, 2012
Before Judges Cuff and St. John.
The State of New Jersey appeals from the April 14, 2011 order of the Law Division granting defendant Darwin Martinez's appeal of his rejection from the Pretrial Intervention Program (PTI) by the Hudson County Prosecutor's Office. On April 21, 2010, defendant pled guilty to fourth-degree violation of the regulatory provision relating to firearms, N.J.S.A. 2C:39-10, stemming from an incident where police officers recovered a loaded handgun, licensed out-of-state, in the rear passenger area of defendant's vehicle. Subsequent to his plea, defendant petitioned the Hudson County Criminal Division for admission to PTI.
Defendant is a decorated veteran who served in the war in Afghanistan with the United States Army, and who currently serves with the New Jersey National Guard with the intention of returning to active-duty. He is married with a daughter, employed full-time in a managerial capacity, and has earned sixty academic credits in Criminal Justice at Seton Hall University. He is also a licensed handgun owner in the Commonwealth of Pennsylvania.
This appeal was filed by the State, requesting that we reverse the Law Division's order admitting defendant to PTI, over the prosecutor's objection. The most apparent implication of our reversal would prevent defendant from re-enlisting with the Army to continue his service to our country. Based on the relevant facts of the incident leading to defendant's arrest and subsequent guilty plea, and in light of the applicable law, we decline to disturb the order of the Law Division, and affirm.
On February 19, 2010, defendant drove from Pennsylvania to West New York, to the home of his ex-girlfriend, Lena Arbalaez. Defendant and Arbalaez have a daughter together from their prior relationship. At the time, defendant was in the process of moving to New Jersey, and had arranged to pick up his daughter so she could attend defendant's wedding ceremony with another woman the following day. When defendant arrived at Arbalaez's house, a verbal altercation ensued because Arbalaez refused to produce their daughter contrary to their pre-existing agreement. Following the argument, defendant returned to his vehicle parked outside the house.
While defendant sat in the driver's seat, Arbalaez called the police and reported that defendant might have a gun in his possession even though she admittedly had neither seen one nor claimed defendant had threatened her with one. When police arrived, officers inquired as to whether defendant owned a gun and if it was present in his vehicle, which contained many of defendant's personal possessions as a result of his pending relocation to New Jersey. Defendant freely acknowledged that he did own a handgun, that it was licensed in Pennsylvania, but that it was not inside his vehicle. Defendant then consented to a search. The officers' search of the passenger compartment uncovered a loaded magazine containing thirteen rounds located in the center console as well as a loaded handgun containing twelve rounds located in the rear of the vehicle.
Defendant was placed under arrest and continued to maintain he was unaware that his handgun was in the vehicle. He was originally charged (although not indicted) with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). In April 2010, defendant was charged by accusation with knowingly violating the regulatory provisions relating to firearms, N.J.S.A. 2C:39-10, a fourth-degree offense. Defendant entered a guilty plea, and thereafter applied to PTI. His admission was approved by the Hudson County Criminal Division, but was denied by the Prosecutor's Office. Defendant appealed his denial to the Law Division.
After hearing arguments, on April 14, 2011, Judge Lourdes
I. Santiago entered an order accompanied by a comprehensive written opinion in which she granted defendant's appeal and approved his entry to PTI over the prosecutor's objection.
In support of her decision approving defendant's admission to PTI, Judge Santiago found that the Prosecutor's Office erred in determining defendant was charged with a second-degree crime, which carries a presumption of denial to PTI absent a compelling justification. She noted that although defendant was initially charged with unlawful possession of a handgun, the charge was reduced to a violation of a regulatory provision, presenting no presumption of denial to PTI. She further found that because defendant pled guilty to that violation, the prosecutor's refusal to admit defendant to PTI was an abuse of discretion, unsupported by any authority stating that admission can be denied based on the original charges filed in a complaint.
The judge also found that although the prosecutor considered the nature of the offense and the potential for violence, the prosecutor failed to acknowledge defendant had no criminal history, did not brandish or threaten any victim with the handgun, insisted he did not know the handgun was present in the vehicle, and that police recovered it in the rear of the vehicle with the safety mechanism engaged and without a live round in the chamber.
Finally, the judge considered the prosecutor's reasoning that the need to prosecute offenders charged with crimes involving weapons should outweigh the benefits of diversion for defendant. She found that defendant's "momentary lapse in judgment" was an isolated event, and that his guilty plea to a fourth-degree offense eliminated the need to prosecute him. Further, the judge found that because this was a victimless, non-violent offense involving a person without a prior criminal record, defendant's admission to PTI could reasonably be expected to deter any future criminal behavior. The judge reasoned that based on the mitigating circumstances before the court, the prosecutor's refusal to admit defendant to PTI was a "patent and gross" abuse of discretion, warranting his admission over the State's objection.
On appeal, the State argues:
THE COURT SUBSTITUTED ITS OWN JUDGMENT FOR THAT OF THE PROSECUTOR WHEN IT FOUND A PATENT AND GROSS ABUSE OF DISCRETION.
THE DECISION TO REJECT THE PROSECUTOR'S PTI APPLICATION WAS WITHIN THE DISCRETION OF THE PROSECUTOR AND THERE WAS NO "PATENT AND GROSS ABUSE" OF THAT DISCRETION.
A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law, State v. Nwobu, 139 N.J. 236, 247 (1995), which we review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
It is essentially a prosecutorial function to decide whether to accept or reject a defendant's PTI application. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II).
Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned[,]" State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis II, supra, 73 N.J. at 380).
However, "[a] prosecutor's discretion [regarding] a PTI application is not without its limits[.]" Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002). The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (citations omitted). As part of a determination that is "primarily individualistic in nature," id. at 80, the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, and "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citing N.J.S.A. 2C:43-12(b)). See also State v. Mosner, 407 N.J. Super. 40, 55 (App. Div. 2009). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584. See also Nwobu, supra, 139 N.J. at 249. ("The statement of reasons may not simply 'parrot' the language of relevant statutes, rules, and guidelines.").
To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246. To warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).
review of the stated reasons for the prosecutor's rejection of defendant's application shows that the prosecutor failed to meet this standard. As acknowledged by the prosecutor, this offense constituted defendant's first arrest. The offense itself was not of an assaultive or violent nature and there was no history of violence or "traditional organized crime." N.J.S.A. 2C:43-12(e)(10), (12), (13).
The prosecutor's heavy reliance upon the nature of the offense exceeded what was appropriate under the law. The nature of the offense may, in appropriate circumstances, serve as the sole basis for rejecting an applicant from PTI. Caliguiri, supra, 158 N.J. at 36; Leonardis II, supra, 73 N.J. at 382. The PTI Guidelines provide that a presumption against acceptance applies if "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program. . . ." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1105 (2012).
Although it is appropriate to reject a PTI application when the nature of the offense is presumptively disqualifying, Caliguiri, supra, 158 N.J. at 36, that presumption does not end the inquiry. The defendant may still be admitted if he shows "compelling reasons" to be admitted to PTI. Ibid.; see Pressler & Verniero, supra, Guideline 3(i); Nwobu, supra, 139 N.J. at 252-53. In Caliguiri, the prosecutor treated a charge of possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, as a presumptively disqualifying offense because even though it was a third-degree offense, the offense carried a mandatory term of imprisonment. Caliguiri, supra, 158 N.J. at 34. The Supreme Court remanded the application to the prosecutor for reconsideration and required the offender to show compelling reasons for his admission in light of the offense. Id. at 44.
Under Guideline 3(i), it is provided 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." Pressler & Verniero, supra, Guideline 3(i). A charge of unlawful possession of a handgun under N.J.S.A. 2C:39-5(b) is a second-degree offense and requires proof of three elements. Those elements are: (1) the object possessed was a "handgun"; (2) that the defendant knowingly possessed the handgun; and (3) that the defendant did not have a permit to possess the handgun. N.J.S.A. 2C:39-5(b). Thus, the State must prove beyond a reasonable doubt that defendant knew that he possessed the handgun in his car.
Here, the accusation charges defendant with a single count of violating N.J.S.A. 2C:39-10 (violation of the regulatory provisions relating to firearms), a fourth-degree crime, but such a view of defendant's criminal conduct may or may not be too limited. The charge in the accusation of only a fourth-degree offense is inconsistent with, and less egregious than the initial second-degree charge of unlawful possession of a handgun. N.J.S.A. 2C:39-5(b). The accusation was filed on the basis of a negotiated agreement with the prosecutor's office, calling for a plea of guilty by defendant in return for a non-custodial sentence and reduction in the severity of the offense that the evidence might support. We note that in evaluating an application, a prosecutor or PTI director is not limited to the fourth-degree offense formally contained in the plea agreement, but that those officials "may look beyond the plea to the actual facts when they are not in dispute, as it is the conduct not the charge [that] governs." State v. Imbriani, 280 N.J. Super. 304, 316 (Law Div. 1994), aff'd, 291 N.J. Super. 171 (App. Div. 1996).
Here, the facts are clearly in dispute. From the moment defendant was approached by police, he denied that he possessed the handgun in his car. In support of his denial, he allowed police to search his vehicle, and upon discovery of the handgun, he continued to deny he knew the weapon was in the car. Normally, a healthy skepticism would attach to such a denial. However, defendant was in the process of moving his belongings from Pennsylvania to New Jersey, and the move was taking place the day before his wedding. It would not be unreasonable for a jury to determine that, given the circumstances, defendant inadvertently packed his Pennsylvania-licensed handgun with his other belongings and had no knowledge that he possessed it in the car.
We therefore conclude that the prosecutor's refusal to give appropriate weight to defendant's status as a first-time offender and the treatment of his offense as disqualifying, under these unique circumstances, clearly and convincingly represented a patent and gross abuse of discretion that subverted the specific goals of the PTI program. See Pressler & Verniero, supra, Guidelines 1(a), (2), 3(i). Accordingly, we affirm the decision to admit defendant over the prosecutor's objection.
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