September 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CRAIG W. WILLIS, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-02-0326.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Guadagno.
Defendant Craig W. Willis appeals from an order denying his challenge to the prosecutor's rejection of his application for admission into the county pre-trial intervention (PTI) program. On appeal defendant argues:
THE PROGRAM DIRECTOR'S REJECTION OF MR. WILLIS' PTI APPLICATION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION. THEREFORE, THE TRIAL JUDGE ERRED IN AFFIRMING THE DIRECTOR'S DECISION TO REJECT MR. WILLIS.
A. The Director's Rejection Was Based Solely on One Factor, the Nature of the Offense, and Failed to Consider Several Relevant Factors in Favor of Admission into the PTI Program.
B. The Rejection Amounted to a Clear Error of Judgment and Clearly Subverted the Goals Underlying the PTI Program.
After receiving complaints from residents of drug trafficking, Elmwood Park Narcotic Enforcement Unit detectives were patrolling the area around a public housing project. The police observed defendant interact with an unidentified man in what they believed was a hand-to-hand narcotics transaction. The detectives then followed defendant's vehicle, observing him nearly strike another vehicle on the highway, and effectuated a traffic stop. The police arrested defendant for possession of one-hundred glassine envelopes, or a brick, of heroin. Defendant was later indicted, charged with the third-degree offenses of possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10a(1), and possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3).
Defendant's application for admission to the county PTI program was reviewed by the Criminal Division PTI Director and the Senior Probation Officer, and rejected. The written rejection discussed the nature of the offense and concluded "the early rehabilitative services and minimal supervisory treatment offered by the PTI Program would not serve the interest of the State[.]" Defendant moved for judicial review of the denial of his application, arguing the PTI Director failed to consider other specific factors and noting the PTI Director's letter misstated the offense for which he was charged.
The Honorable Patrick J. Roma heard oral argument and denied defendant's request to overturn the prosecutor's decision. The judge concluded the prosecutor's rejection was after consideration of applicable statutory factors and did not demonstrate a patent and gross abuse of his discretion. See State v. Wallace, 146 N.J. 576, 582 (1996) (holding diversion is a prosecutorial function, therefore a prosecutor must be given great discretion regarding admission into the program).
Pursuant to a negotiated plea agreement, defendant pled guilty plea to the possession charge. Judge Roma sentenced him to a three-year non-custodial probationary sentence, conditioned on entering a twelve-month out-patient drug rehabilitation program and a twelve-month suspension of his driving privileges. Applicable fines and penalties were also imposed.
This appeal ensued. Thereafter, Judge Roma supplemented his findings in a written statement pursuant to R. 2:5-1(b).
New Jersey's PTI program is governed by N.J.S.A. 2C:43-12 and the Supreme Court's guidelines for implementation, set forth in Rule 3:28. Generally, individuals with no prior convictions are afforded the opportunity to avoid prosecution by receiving rehabilitative services or supervision. N.J.S.A. 2C:43-12(a). A PTI application is initially reviewed by the Criminal Division PTI Director, R. 3:28, however, the decision to admit an applicant to a PTI program rests with the reasoned discretion of the prosecutor. See State v. Leonardis, 71 N.J. 85, 104-05 (1976), aff'd on reh'g, 73 N.J. 360, 384 (1977); N.J.S.A. 2C:43-12(e); see also State v. Nwobu, 139 N.J. 236, 246 (1995) (admission into PTI requires the prosecutor's consent).
N.J.S.A. 2C:43-12(e) identifies seventeen factors for consideration when examining an application for PTI admission. If an application is denied, the prosecutor must provide a written statement of findings supporting his or her conclusion. N.J.S.A. 2C:43-12(f). A defendant may appeal by moving before the Superior Court to overturn the prosecutor's rejection. Ibid. The burden to "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion" rests with the defendant. State v. Watkins, 193 N.J. 507, 520 (2008) (internal quotation marks and citation omitted).
On appeal, defendant reasserts the arguments presented to Judge Roma. He suggests the PTI Program Director, in rejecting his application, failed to make "an individualized assessment of [his] features and amenability to rehabilitation, but rather [focused] on one factor, the nature of the offense." Defendant emphasizes he purchased the drugs for personal use, intending to end his life, and not for distribution. He contends the director's rejection misstated the charges against him and overlooked his responsiveness to rehabilitation. We disagree.
Although the PTI Director's denial inaccurately identified the offenses charged, the prosecutor's explanation of denial addressed the charges in the indictment. Specifically noting defendant had not provided supplemental information supporting his PTI request, the prosecutor rejected the notion that the large quantity of heroin was for personal use.
The prosecutor also characterized heroin as a "particularly potent and dangerous illegal narcotic, " and underscored society's priority in "prohibiting its distribution." Further, he stated heroin is a "Schedule I narcotic" that is "a plague on the public" because it "is highly addictive, and thus, more dangerous than other drugs." The facts show defendant possessed a brick of heroin, the potential distribution of which was a great concern. He concluded: "society would be harmed due to the failing to prosecute a purveyor of heroin[.]"
Assuming for the sake of argument, defendant's assertion he was not going to distribute heroin, but rather planned to take a lethal overdose, the prosecutor determined defendant's heroin addiction and significant "mental health issues[, ]" would be properly addressed by probation, not the less supervisory PTI.
In addition to the facts surrounding the charge, the prosecutor also emphasized the circumstances of the offense, which he noted were potentially dangerous. Defendant purchased heroin from a "known drug location" then "drove away in a careless manner." This type of behavior he concluded must be eradicated, requiring prosecution. Finally, the prosecutor relied on the need for deterrence of both defendant and others who might be enticed by the profit of selling drugs. Taken together, the prosecutor concluded defendant was not amenable to the diversionary treatment offered by PTI.
Derived from the changing authority, prosecutors exercise broad discretion in determining who to admit into PTI. Nwobu, supra, 139 N.J. at 246. As such, we extend "'enhanced'" deference to that decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)). Our "severely limited" review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting Leonardis, supra, 73 N.J. at 384). In doing so, here, we determine the prosecutor cogently articulated several reasons for denying PTI. Contrary to defendant's suggestion, the rejection was not the result of a "blanket prohibition" based on the offense. See State v. Caliguri, 158 N.J. 28, 32 (1999) (barring prosecutor's arbitrary denial of PTI admission based on the charge alone). Moreover, as Judge Roma found, defendant had failed to demonstrate "compelling" reasons to justify overriding the prosecutor's rejection of his PTI application, failing to sustain his burden of persuasion.