November 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATALIE N. BELLAMY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey Law Division, Hudson County, Indictment No. 10-06-01002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2012
Before Judges Ashrafi and Hayden.
Defendant Natalie Bellamy appeals from denial of her application for enrollment in the Pretrial Intervention Program (PTI) pursuant to N.J.S.A. 2C:43-12 to -14 and Rule 3:28. We affirm.
At the age of nineteen, defendant had no prior record of criminal charges or juvenile adjudications. On the night of February 3, 2010, she and three other young people from The Bronx decided jointly to steal merchandise from a Rite-Aid Pharmacy in Bayonne. They were observed by store personnel putting medications and other items into bags. An employee in charge of security confronted them in the store parking lot, and a male companion of defendant shoved the employee aside. The three others entered a car and sped away, eluding police pursuit and causing a motor vehicle collision before they were found and arrested. The police seized evidence of the thefts from their car. Defendant fled from the store on foot and was apprehended separately. She was in possession of a box cutter. All four individuals were identified by store personnel.
On May 20, 2010, a Hudson County grand jury returned a seven-count indictment against the three adults in the group. Defendant was charged in three counts with second-degree robbery, N.J.S.A. 2C:15-1, second-degree conspiracy, N.J.S.A. 2C:5-2, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. She remained in custody for several months and then entered into a plea agreement with the prosecution by which she pleaded guilty on November 12, 2010, to a downgraded third-degree charge of conspiracy to commit theft, N.J.S.A. 2C:5-2, 20-3. At the same time, she was permitted to apply for entry into PTI.*fn1
She made the application, but the PTI Director (the Criminal Division Manager) and the prosecutor's office rejected her for PTI. The Law Division denied her appeal of that decision under Rule 3:28(h). The court then sentenced her in accordance with the plea agreement to three years probation, with fifty hours of community service, and statutory money penalties. On appeal before us, defendant argues:
THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT.
Admission to the PTI program requires a favorable recommendation from the PTI Director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In determining whether to recommend or consent to admission, the PTI Director and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12e. The statutory list is not exhaustive, and additional relevant factors may also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002).
Judicial review of their decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to the prosecutor's decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).
Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382) (internal quotation marks omitted); accord Baynes, supra, 148 N.J. at 444.
In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court explained the standard of review in greater detail:
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 Pretrial Intervention. [(Citation omitted).]
In this case, the PTI Director initially rejected defendant's application, citing seven of the factors listed in N.J.S.A. 2C:43-12e, which we designate here by statutory subsection:
(1) the nature of the offense, namely the charge of robbery downgraded to theft;
(2) the facts of the case (as described in this opinion);
(3) the motivation and age of defendant, that is, her youth, her failure to finish high school, and her lack of employment at any time;
(7) the need and interests of the victim and society, namely, not to be subjected to such concerted acts of theft placing store employees and customers at risk in addition to the loss of merchandise;
(14) the value of PTI being outweighed by the public need for prosecution;
(15) the involvement of other persons in committing the crime, here, a conspiracy of four persons; and
(16) the potential adverse effect of PTI on the prosecution of co-defendants, in this case, the interest of maintaining consistency in punishment of the perpetrators with relatively equal culpability.
Defendant argues that the PTI Director and the prosecutor abused their discretion because their reasons over-emphasize the nature of the offense and neglect the youth of defendant and her lack of prior contacts with the criminal justice system. We disagree. We find no patent and gross abuse of discretion in the reasoning of the PTI Director and the prosecutor's office.
Although defendant had no record and did not plead guilty to a second-degree charge of robbery, it was appropriate to take into consideration all the facts of the case and the nature of the original charges of the indictment, not only the downgraded theft charge resulting from plea negotiations. Brooks, supra, 175 N.J. at 230. Moreover, the PTI Director considered defendant's youth, but her lack of stability in completing a high school education and becoming employed suggested a greater risk of future misconduct. Finally, defendant's decision to join several others to commit the offenses elevated her conduct to a more serious matter than ordinary shoplifting. Defendant's conduct presented a greater risk to the victim store and its employees as well as the public in general.
Defendant failed to meet the strict standard of review to overrule her rejection from PTI. The Law Division correctly denied her appeal of the decision of the PTI Director and the prosecutor to deny her enrollment.