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Friday, July 06, 2012


                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-3303-10T4





February 9, 2012

Submitted January 24, 2012  -  Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-0097.

Theodore J. Romankow, Union County Prosecutor, attorney for appellant (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

Joel C. Seltzer, attorney for respondent.


            The State appeals from a February 25, 2011 Law Division order that overruled the prosecutor's objection to defendant's participation in the pretrial trial (PTI) program, and ordered defendant's enrollment in the program effective March 14, 2011.  We agree with the State's contention that the judge impermissibly substituted his judgment for that of the prosecutor, and failed to afford the prosecutor's decision the strong presumption of validity to which it is entitled by law.  We reverse.
            Defendant was charged with fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12) (count one); and third-degree possession of less than one ounce of marijuana with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two).  Before the charges were presented to the grand jury, defendant applied for admission to the PTI program.  By letter of November 12, 2010, the Union County Prosecutor's Office rejected defendant's application, relying principally on State v. Caliguiri, 158 N.J. 28 (1999).  The prosecutor's November 12, 2010 rejection letter asserted that in Caliguiri, the Court held that a defendant charged with a violation of N.J.S.A. 2C:35-7 is "presumptively ineligible" for admission to the PTI program, and is required to show "compelling reasons" to overcome the presumption against admission to PTI.  The State notified defendant that because he was charged with a violation of that statute, he was presumptively barred from participating in PTI unless he presented compelling reasons sufficient to overcome the adverse presumption; and he had not done so.[1]     
            The State additionally asserted in its rejection letter that any benefit to defendant resulting from his diversion into PTI was outweighed by the "interest of society in prosecuting and deterring this type of conduct[,] . . . particularly when it takes place close to school property." 
            The State's letter of rejection closed with its observation that the State had considered the fact that defendant was twenty-three years old and had incurred no prior arrests or convictions.  Nonetheless, there was "nothing extraordinary, unusual or persuasive enough in his background to overcome the serious nature of the offense and the presumption against his admission into PTI."
            On November 23, 2010, defendant filed an appeal from the denial of PTI.  At the conclusion of the hearing, the judge overruled the prosecutor's objection to PTI.  The judge recognized that Guideline 3(i)(4) was applicable and creates a presumption against admission to PTI for an applicant such as defendant, charged with a drug distribution offense.  Guideline 3(i)(4) provides:
A defendant charged with a . . . sale or dispensing of Schedule I or II narcotic drugs as defined in [N.J.S.A. 2C:35-5(b)(1) to (14)] by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor.  However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

[(Emphasis added).]

            After reading Guideline 3(i)(4) verbatim, the judge held that the presumption against PTI eligibility established by Guideline 3(i)(4) was no longer applicable in light of the recent legislative amendment to N.J.S.A. 2C:35-7 (school zone statute).  In particular, the judge noted that the January 12, 2010 amendment to N.J.S.A. 2C:35-7 authorizes a judge to "waive or reduce the minimum term of parole ineligibility required under [N.J.S.A. 2C:35-7(a)] or place the defendant on probation."  See N.J.S.A. 2C:35-7(b)(1).[2]  The judge reasoned that because the Legislature had seen fit to "loosen" the mandatory parole ineligibility period for persons convicted of violating N.J.S.A. 2C:35-7, the Legislature must also have intended to eliminate the presumption against PTI enrollment for defendants so charged.  The judge stated:
I don't think [Guideline 3(i)(4)] applies because I think that the Legislature has loosened the Guidelines on this. 

            I'm satisfied that the defendant has presented compelling reasons to show that [he]  is  an  appropriate  candidate  for PTI. . . . I am overruling you and it's my intention to enter the defendant into PTI.

            . . . .

            I'm finding there is an abuse of discretion . . . .

The judge signed a confirming order on February 25, 2011.  This appeal followed.
            On appeal, the State argues in a single point heading that
"[t]he trial court erred in enrolling defendant in PTI over the State's objection."  The State maintains that the judge made four errors when he decided to enroll defendant in PTI over the State's objection:  1) even if the judge disagreed with the State's position, he was not entitled to overturn that decision, in light of defendant's failure to establish that the prosecutor's decision constituted a patent and gross abuse of discretion; 2) the judge applied an incorrect standard when he overturned the prosecutor's decision, finding merely "an abuse of discretion," rather than the "patent and gross abuse of discretion" required by the applicable caselaw; 3) the judge mistakenly concluded that the recent amendment of N.J.S.A. 2C:35-7 relieved defendant of his obligation to present the "compelling reasons" justifying his admission to PTI that Guideline 3(i)(4) requires; and 4) the judge made an "egregious error" when he found that the State v. Caliguiri presumption against PTI admission no longer exists. 
            In contrast, defendant argues that the presumptive ineligibility created by Guideline 3(i)(4) cannot be read in isolation, but must be read in conjunction with the 2010  amendments  to  N.J.S.A. 2C:35-7.  Defendant also argues that even if the presumptive ineligibility established by Guideline 3(i)(4) still exists, he satisfied his burden of submitting "compelling reasons" to overcome the presumption against admission.  In support of that contention, he points to his status as the "sole support for the mother of his child and growing family" and his current employment, both of which demonstrate that he is a "worthy candidate for PTI and is actually accomplishing its worthy aims." 
            A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors is a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995).  We review questions of law de novo, and owe no deference to the trial judge's legal conclusions.  State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2008), certif. denied, 202 N.J. 346 (2010).   
            When reviewing a trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor.  State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II).  Absent evidence to the contrary, it is presumed that in considering a defendant's PTI application, the prosecutor considered all relevant factors.  State v. Baynes, 148 N.J. 434, 444 (1997).  Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision must be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987).  "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citation omitted).  As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited.  State v. Bender, 80 N.J. 84, 89 (1979).  "Respect for the prosecutor's role may occasionally result in our [affirmance] of a decision with which we disagree" because "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384).  
            Accordingly, a judge is not entitled to overturn a prosecutorial veto absent a "clear[] and convincing[] [showing] that the prosecutor's refusal to sanction admission into [a PTI program] was based on a patent and gross abuse of [the prosecutor's] discretion."  Leonardis II, supra, 73 N.J. at 382.  In Bender, the Court elaborated on the patent and gross abuse of discretion standard:
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.

[Bender, supra, 80 N.J. at 93 (internal citation omitted).]

            With these principles in mind, we review the judge's decision to overturn the prosecutor's rejection of defendant from  PTI.  As a  threshold  matter,  we  note  that  N.J.S.A. 2C:43-12(e) contains seventeen criteria to guide the prosecutor's evaluation of a defendant's application for PTI.  Defendant did not argue before the trial judge that the prosecutor considered inappropriate statutory factors or that the prosecutor did not consider all relevant factors.  Rather, defendant confined his argument to a contention that he was an appropriate candidate for PTI.  Without identifying any statutory factors contained in N.J.S.A. 2C:43-12(e) that the prosecutor overlooked or misapplied, the judge overturned the prosecutor's decision.  The judge concluded that the assistant prosecutor committed an "abuse of discretion" when she rejected defendant's PTI application. 
            First, the trial court was not entitled to overturn the prosecutor's decision upon a mere finding of "an abuse of discretion."  As we have discussed, our Supreme Court has insisted for over three decades that a prosecutor's rejection of a defendant's application should not be overturned absent a showing of a "patent and gross" abuse of discretion, not merely an "abuse of discretion."  The "patent and gross abuse of discretion" standard was articulated by the Supreme Court as early as 1977 in Leonardis II, supra, 73 N.J. at 382, and was reaffirmed by the Court as recently as 2008 in State v. Watkins, 193 N.J. 507, 520 (2008).  By applying the lesser standard of "abuse of discretion," the judge committed reversible error, as he failed to afford the prosecutor's decision the enhanced deference to which it is entitled.
            Second, the judge concluded that the legislative revision of N.J.S.A. 2C:35-7 eroded or eliminated the presumption against PTI admission established by Caliguiri, supra, 158 N.J. at 43, for persons charged with a violation of the school zone statute.  That conclusion finds no support either in the caselaw or in the legislative revision itself.  Simply stated, the judge's reasoning was flawed and cannot be sustained. 
            Third, to the extent that the judge attempted to find "compelling facts or circumstances" to meet the Caliguiri requirement, that effort fails.  The judge did not identify the "compelling factors" upon which he relied, but appears to have accepted defendant's argument that because he is employed and has been providing financial support to his family, he should be admitted to PTI.  As the Court held in Nwobu, supra, 139 N.J. at 252-53, a compelling reason in this context is "something extraordinary or unusual, something 'idiosyncratic' in [a defendant's] background."  Providing financial support for one's family falls far short of the demanding standard imposed by Nwobu.  As a matter of law, we reject the judge's conclusion that defendant provided a "compelling reason" to overcome the Caliguiri presumption against PTI admission.
            We reverse and remand for an order vacating defendant's admission to PTI, and for consideration of defendant's appeal in light of the principles articulated in this opinion.  On remand, the matter shall be referred to a different judge "in light of the opinion" that has already been expressed.  See State v. Henderson, 397 N.J. Super. 398, 416 (App. Div. 2008) (observing that, on remand, it is appropriate to refer the case to a different trial judge where the original judge has expressed his or her opinion), aff'd in part, modified in part on other grounds, 208 N.J. 208 (2011).

            Reversed and remanded.

[1] The State's rejection letter also asserted that PTI Guideline 3(i) states that a defendant whose crime was part of a "continuing business or enterprise" should generally be rejected from PTI.  See R. 3:28, Guideline 3(i)(2).  In support of its contention that defendant's actions were part of a "continuing criminal business or enterprise," the State pointed to two controlled purchases of marijuana from defendant made by a reliable confidential informant.

  The State no longer relies on this ground as a basis for rejecting defendant from PTI, and we do not consider it.
[2] In deciding whether to waive or reduce the minimum period of parole ineligibility, or place a defendant on probation, the court is required to consider: 

(a) the extent of the defendant's prior criminal record and the seriousness of the offenses for which the defendant has been convicted; (b) the specific location of the present offense in relation to the school property, including distance from the school and the reasonable likelihood of exposing children to drug-related activities at that location; (c) whether school was in session at the time of the offense; and (d) whether children were present at or in the immediate vicinity of the location when the offense took place. 

[N.J.S.A. 2C:35-7(b)(1) (a) to (d).]