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State of New Jersey v. Jimmy Delpeche

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JIMMY DELPECHE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Accusation No. 10-03-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2012

Before Judges Axelrad and Sapp-Peterson.

Defendant appeals his rejection from the Pretrial Intervention (PTI) Program. Although we agree that the prosecutor's two-tiered approach to rejecting defendant denied him due process and that consideration of Guideline 5 as a basis for rejection was improper, we are nonetheless satisfied the denial was not a patent and gross abuse of discretion. We therefore affirm.

On September 24, 2009, defendant drove his two co-defendants, Tiffany Moore and Donnetta Jackson, to the Phillipsburg Mall, where he gave the women ten fake one-hundred-dollar bills. He told them to use the bills to make purchases, and for every one-hundred-dollar bill used, defendant was to be paid eighty dollars, while Moore and Jackson would keep the remainder, along with any item they purchased. All three were subsequently arrested after mall security became aware of the activity and alerted local police. In one municipal complaint, defendant was charged with four counts of fourth-degree conspiracy, N.J.S.A. 2C:5-2a, to commit theft by deception, N.J.S.A. 2C:20-4a, and four counts of third-degree conspiracy, N.J.S.A. 2C:5-2a, to commit forgery, N.J.S.A. 2C:21-1a(3). In a second municipal complaint, defendant was charged with three counts of fourth-degree conspiracy, N.J.S.A. 2C:5-2a, to commit theft by deception, N.J.S.A. 2C:20-4a; three counts of third-degree conspiracy, N.J.S.A. 2C:5-2, to commit forgery, N.J.S.A. 2C:21-1a(3); three counts of third-degree conspiracy, N.J.S.A. 2C:5-2, to commit theft by deception, N.J.S.A. 2C:20-4a; and three counts of third-degree conspiracy, N.J.S.A. 2C:5-2a, to commit forgery, N.J.S.A. 2C:21-1a(3). In a statement given to police after his arrest, defendant admitted to engaging in similar conduct in Massachusetts.

Defendant applied for entry into the PTI Program. The program director rejected the application, citing the following reasons: "The defendant provided false information or was not being honest during his PTI [i]nterview (G-5). His attitude is such that he seems to be avoiding recognition of the extent of his role/responsibility in the instant offense, and his attitude would render PTI services ineffective (G-4)." By way of further explanation, the program direction stated:

The defendant provided false information by stating "if anything, they (the co-defendants) encouraged him to do it" (commit the instant offense). Co-defendants Tiffany Moore and Donnetta Jackson have at no time admitted they encouraged the defendant to commit these offenses.

In addition, the defendant denied passing fake bills in Massachusetts although he admitted Post-Miranda to authorities that he had done so.

The defendant's attitude is such that he seems to be avoiding recognition of the extent of his role/responsibility in the instant offense, and his attitude would render PTI services ineffective. He suggested that his co-defendant was the "mastermind" of the operation and that he was encouraged to participate. He claims that he found money in a bag at a bar, forgotten by a group playing pool. However, instead of turning the bag of money over to the police, he gives it to his co-defendants to spend while he waits inside and outside the Phillipsburg Mall. He initially advised this officer his co-defendants, after passing a phony $100.00 bill, would give him $80.00 and they would keep the balance. When this writer questioned him on why they would volunteer for such a low profit for themselves, he stated the co-defendants at first wanted 35%, but since they wanted to come to the Phillipsburg area and he paid for the gas, they agreed to a 20/80 split. Throughout the interview, the defendant suggests his co-defendants influence[d] and encourage[d] him to participate in these acts.

The prosecutor also rejected defendant's application, stating: "The State agrees that rejection is appropriate for the reasons expressed above. Should an appeal of this decision be filed, the State reserves the right to respond with a comprehensive analysis, including a statement of facts, reasons for rejection, and a citation of supporting legal authority."

Defendant appealed the rejection to the Law Division. Following oral argument on March 4, 2010, the court issued a written decision denying defendant's motion for admission into PTI. This appeal ensued. On appeal, defendant raises the following points for our consideration:

POINT I

THE PROSECUTOR'S REJECTION OF MR. DELPECHE'S PTI APPLICATION FAILED TO PROVIDE ADEQUATE NOTICE OF THE GROUNDS FOR REJECTION, VIOLATING MR. DELPECHE'S RIGHT TO DUE PROCESS AND A FAIR HEARING ON HIS APPEAL THEREOF.

POINT II

MR. DELPECHE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS APPLICATION AND THE APPEAL OF THE DENIAL OF THAT APPLICATION TO PRETRIAL INTERVENTION.

POINT III

THE REJECTION OF MR. DELPECHE'S PTI APPLICATION FAILED TO CONSIDER ALL RELEVANT FACTORS AND CONSIDERED INAPPROPRIATE FACTORS RESULTING IN AN ARBITRARY, IRRATIONAL DECISION THAT WAS AN ABUSE OF DISCRETION, FAILED TO GIVE APPROPRIATE WEIGHT TO ALL FAVORABLE FACTORS, SUCH AS TO RISE TO THE LEVEL OF A CLEAR ERROR OF JUDGMENT THAT SUBVERTS THE GOALS OF PTI AND CONSTITUTED A GROSS AND PATENT ABUSE OF DISCRETION. THE TRIAL JUDGE FURTHER ERRED IN AFFIRMING THAT DENIAL.

We preliminarily note Point I was not raised before the trial court, thereby depriving the trial court of an opportunity to address the claimed due process violation. State v. Robinson, 200 N.J. 1, 18-19 (2009). We will decline to consider issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest. Id. at 20. Because defendant was given a full opportunity to respond to the additional factors raised by the prosecutor, we decline to address the claimed due process violation other than to note the "statement of reasons must not be vague. Rather, the prosecutor's reasons for rejection of the PTI application must be stated with 'sufficient specificity so that defendant has a meaningful opportunity to demonstrate that they are unfounded.'" State v. Nwubo, 139 N.J. 236, 249 (1995) (quoting State v. Maddocks, 80 N.J. 98, 109 (1979)). A rejection letter that relies upon the reasons expressed by the program director and then follows with a statement that "[s]hould an appeal of this decision be filed, the State reserves the right to respond with a comprehensive analysis, including a statement of facts, reasons for rejection, and a citation of supporting legal authority" is vague. Moreover, our Court has made clear that the specificity of the reasons for the rejection is intended to be included in the rejection letter, not in response to an applicant's appeal of the rejection claim:

We have emphasized the importance of a statement of reasons accompanying any PTI decision by a judge, prosecutor, or program administrator. Such a statement serves four purposes: (1) It facilitates effective judicial review; (2) it assists in evaluating the success of the PTI program; (3) it affords the defendant the opportunity to prepare a response; and (4) it dispels suspicions of arbitrariness. State v. Leonardis, supra, 71 N.J. at 114-15, 363 A.2d 321. [Id. at 236 (internal citations omitted).]

More recently, in State v. Negran, 178 N.J. 73, 82, the Court stated:

A prosecutor's discretion in respect of a PTI application is not without its limits, however. A rejected applicant must be provided with a clear statement of reasons for the denial. That writing requirement is intended to facilitate judicial review, assist in evaluating the success of the PTI program, afford to defendants an opportunity to respond, and dispel suspicions of arbitrariness. The requirement also enables a defendant to challenge erroneous or unfounded justifications for denial of admission. [State v. Negran, 178 N.J. 73, 83 (2003) (internal citations omitted).]

To the extent the above response by the prosecutor is the prosecutor's practice, rather than an isolated incident, it should be discontinued.

"A reviewing court must assume, absent evidence to the contrary, that a prosecutor's office has considered all relevant factors in reaching a PTI decision." Nwobu, supra, 139 N.J. at 249. Thus, our scope of review is limited, given the wide latitude afforded prosecutors in determining whom to admit into PTI versus whom to prosecute. Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246). Accordingly, a prosecutor's decision to reject an applicant seeking admission into PTI will be reversed only where the applicant demonstrates the prosecutor's decision reflects "the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

Guided by that standard, we find no such patent and gross abuse of discretion here. As the trial judge found:

The case supervisor properly considered

[d]efendant under [G]uidelines 4 and 5 of [Rule] 3:28. Guideline 4 specifically states that enrollment of defendants who maintain their innocence should be permitted unless their attitudes would render PTI ineffective. The case supervisor found that

[d]efendant's evasion of the whole truth surrounding his involvement in the crime demonstrated a lack of willingness to be fully forthcoming, which is a prerequisite of the PTI program, and would defeat the effectiveness of the program. . . . [I]f the supervisor believed that [d]efendant was not being forthcoming and honest, she was within her discretion to deny his application for fear that he would not be suited for the program.

In challenging defendant's rejection based upon Guideline 4, defendant suggests that the focus of this guideline is the relationship of trust between the counselor and participant, that the interviewer put "the cart before the horse," and the court "perpetrated" this error. We disagree. Guideline 4 of Rule 3:28 provides: "Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilt. Enrollment of defendants who maintain their innocence should be permitted unless the defendant's attitude would render pretrial intervention ineffective." (emphasis added). The Official Comment to Guideline 4 explains:

Nevertheless, many guilty defendants blame their behavior on society, family, friends or circumstance, and avoid recognition of the extent of their own role and responsibility. While such an attitude continues, it is unlikely that behavioral change can occur as a result of short-term rehabilitative work. An understanding and acceptance of responsibility for behavior achieved through counseling, can and often does, result in the beginnings of the defendant's ability to control his/her acts and is an indication that rehabilitation may, in large measure, have been achieved.

[R. 3:28.]

Defendant, although acknowledging his guilt when he was not required to do so, attempted to minimize his role by suggesting that others were to blame for his actions because they encouraged his actions. Defendant supplied the fake money to Moore and Jackson, drove them to the mall for the purpose of making purchases with the fake one-hundred-dollar bills, waited for them to complete the transactions, and intended to retain eighty percent of the cash the women received back from their purchases. Thus, the interviewer's conclusion that defendant was not forthright is supported by the record and supports the additional conclusion that his attitude "would render PTI services ineffective." We have previously stated that "[a] PTI applicant's attitude and demeanor are certainly relevant considerations in determining amenability to correction and responsiveness to rehabilitation . . ., but all relevant factors must be considered." State v. Kern, 325 N.J. Super. 435, 438-39 (App. Div. 1999) (internal quotation omitted).

Other than the lack of forthrightness, the only other additional factor the interviewer considered was defendant's denial of a prior similar incident in Massachusetts, which he purportedly discussed with the Pohatcong Police following his arrest on the current charges. Although Guideline 5 of Rule 3:28 is also referenced as a basis for rejection, the focus of Guideline 5 is directed to "effective operation" of PTI programs which the Court believes would be compromised if "a relationship confidence and trust" is not "initiated and maintained" throughout the application and participation process. Therefore, Guideline 5 prevents use of information, acquired in the application to participation in PTI, from being used against the applicant or participant in any subsequent proceeding.

Defendant urges that the relationship of trust discussed in Guideline 5 refers to a program counselor, not to a supervisor. The language of Guideline 5 speaks to the relationship of trust between "defendants" and "staff" and applies to both the "applicant" and "participator in" the PTI Program. Consequently, the trial judge correctly ruled that "if the supervisor believed that [d]efendant was not being forthcoming and honest, she was within her discretion to deny his application for fear that he would not be suited for the program."

Finally, after defendant appealed his rejection to the Law Division, the prosecutor, relying upon statutory factors for referral to PTI, expressed six additional reasons that militated against defendant's admission into the program, N.J.S.A. 2C:43-12e(2), (7), (13), (14), (15) and (17). In response, defendant proffered, as factors that substantially weighed in favor of his admission into the program, N.J.S.A. 2C:43-12e(3), (10) and (12). The court weighed all factors proffered and found four factors weighed against defendant: the fact that defendant was motivated by greed, the need of the victim and society to punish behavior of defendant's type, defendant's behavior involved organized criminal activity, and there were multiple defendants (factors (3), (7), (13) and (15)). The factors which the court found weighed in defendant's favor were that his actions did not involve violence, there was no history of defendant engaging in physical violence towards others, and defendant's behavior was correctible through PTI (factors (6), (10) and (12)).

We agree, as the court concluded, "no factor, either individually or in the aggregate, demonstrates patent or gross abuse of discretion or that the prosecutor failed to appreciate all of the appropriate factors." Therefore, we find no basis to disturb the decision denying defendant's admission into PTI.

Affirmed.

20120827

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