Submitted September 22, 2014.
Approved for Publication October 27, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2276.
Joseph E. Krakora, Public Defender, attorney for appellant ( Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney ( Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges SABATINO, GUADAGNO, and LEONE. The opinion of the court was delivered by SABATINO, P.J.A.D.
[437 N.J.Super. 558] SABATINO, P.J.A.D.
Defendant Justin A. Lee applied for admission to the pretrial intervention (" PTI" ) program after he was charged with two counts of aggravated assault with respect to a police officer and resisting arrest. His application was rejected by the Essex County Prosecutor, despite having a positive recommendation by the Judiciary's PTI program director. The trial court initially remanded the matter to the prosecutor for reconsideration, which resulted in the prosecutor abiding by her original decision to deny PTI and providing amplified written reasons for the denial. After hearing further oral argument, the trial court ultimately deferred to the prosecutor's discretion and upheld the PTI denial.
On appeal, defendant raises several novel legal arguments that he did not raise in the trial court. In particular, he contends that PTI Guideline 3(i) in Rule 3:28, which expresses a presumption against PTI where the defendant's offense was " deliberately committed with violence or threat of violence against another person," is inconsistent with and preempted by the PTI statute, N.J.S.A. 2C:43-12(e). Defendant further contends, as a matter of first impression, that because he disputed the police officers' factual account of the incident and provided written eyewitness statements supporting his competing version, the judge reviewing the PTI denial was obligated to address the discrepancy by conducting an evidentiary hearing. Defendant also argues that the PTI denial in this case must be reversed because the prosecutor engaged in a " patent and gross abuse of discretion." State in re [437 N.J.Super. 559] V.A., 212 N.J. 1, 23, 50 A.3d 610 (2012). For the reasons that follow, we affirm.
The record indicates that defendant was on the streets of Bloomfield at about 7:40 p.m. on April 29, 2010, when approximately thirty young men and women were taking part in or observing a melee. During the course of the melee, a young woman was stabbed with a knife, although it is not alleged that defendant himself owned or held the knife at any point. Police officers responded to the scene. Defendant attempted to walk away. He did not heed warnings from the officers directing him to stand with several other persons up against a fence.
Although the facts at this critical point in the chronology are disputed, it appears that several officers and defendant then engaged in a struggle, leading to one of the officers sustaining a broken nose. The police maintain that defendant deliberately
struck the officer's nose with the back of his head. Conversely, defendant contends that one of the officers pulled him back by his dreadlocks, causing his head to bash into that officer's nose.
In support of his version of the facts, defendant presented notarized typed statements from two alleged eyewitnesses, as well as his own signed handwritten statement. The eyewitnesses both stated that defendant had been approached by the police from behind after he had failed to respond to the police officers' commands. However, neither eyewitness explicitly confirmed defendant's central claim that the police officer's broken nose had been self-inflicted.
At the time of the incident, defendant was twenty years old. He is a high school graduate, employed, and apparently not affiliated with any gangs. He has no prior adult convictions.
After being charged in the indictment, defendant applied for PTI. As we have already noted, the court's PTI program director recommended him for admission. Even so, the county prosecutor [437 N.J.Super. 560] denied his PTI application in a January 14, 2011 letter. That initial denial letter mainly focused on the violent nature of defendant's alleged conduct in resisting the police at the scene and in injuring an officer. In particular, the prosecutor relied on PTI Guideline 3(i), which prescribes that " [i]f the crime was . . . deliberately committed with violence or threat of violence against another person[,] . . . the defendant's application should generally be rejected." See Guidelines for Operation of PTI in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1169 (2015).
Defendant sought review of the initial PTI rejection by the trial court. After oral argument, Judge Michelle Hollar-Gregory issued a letter opinion on May 6, 2011, remanding the PTI request back to the prosecutor for reconsideration. In that letter opinion, the judge found that the prosecutor's initial rejection letter lacked the necessary specificity, and also did not sufficiently discuss certain potential mitigating factors.
After reexamining the matter, the prosecutor reached the same conclusion in a June 17, 2011 supplemental letter rejecting defendant for PTI a second time. Once again, the prosecutor stressed the violent nature of the street encounter and defendant's refusal to heed the repeated commands of several officers.
Following additional argument, Judge Hollar-Gregory issued a final ruling on October 25, 2011, upholding the prosecutor's denial of PTI. In her oral decision, the judge observed that the prosecutor had " addressed the concerns that this [c]ourt [previously] had," concerning the previous PTI denial. The judge also noted the statutory presumption in PTI Guideline 3(i), which relates to cases of alleged violent conduct. On the whole, the judge concluded that the prosecutor's ...