SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
MAURICE SHABAY MALACHI,
.
________________________________________________________________
|
Submitted October 25, 2011 -
Decided
Before Judges Messano and
Espinosa.
On appeal from Superior Court of New Jersey, Law Division,
Somerset County, Indictment No. 07-10-0754.
Joseph E. Krakora, Public Defender, attorney for appellant
(Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney
for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant
appeals from an order that affirmed the prosecutor's rejection of his
application to the Pre-Trial Intervention (PTI) program.
On
the evening of September 27, 2007, Bound Brook police officers responding to a
citizen complaint of drug activity found defendant and his codefendant, Jeffrey
Balaam, in the stairwell of the building where defendant lived. One of the officers observed defendant
reaching into his front right pants pocket and instructed him to remove his
hand from his pocket. The officer
conducted a pat down of the pocket, at which time defendant stated, "all
right, man, you got me." Upon
inquiry from the officer, defendant stated, "my weed, man, my weeds in
there, you got it." The
officer arrested defendant and retrieved a bag of marijuana as well as eight
smaller plastic bags of marijuana and twelve empty small baggies in defendant's
left front pocket.
After receiving Miranda[1]
warnings, defendant volunteered that he had additional marijuana in his bedroom
under his mattress and consented to a search which resulted in the recovery of
additional marijuana. Defendant
also admitted that he purchased an ounce of marijuana, broke some off and
packaged it so he could sell it for ten dollars per bag.
An
indictment was returned, charging defendant with a fourth-degree offense, 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), and third-degree possession with intent to distribute
within 1,000 feet of a school, N.J.S.A. 2C:35-7.
Defendant
applied for admission into PTI on November 7, 2007. He had no prior convictions and was nineteen years old.
The Criminal
Division Manager found defendant to be an appropriate candidate for PTI and
approved his application. However,
by letter dated December 3, 2007, the prosecutor objected to defendant's
admission into PTI. In providing
reasons for the objection, the prosecutor cited Guideline 3(i), that
"defendant's conduct was part of organized, continuing criminal
activity[,]" and Guideline 3(j), that "PTI diversion of the defendant
will deprive the State of truthful testimony against codefendant Balaam, which
the State will require as a condition of any guilty plea."
Defendant
appealed from this decision and the trial court directed the prosecutor's
office to reconsider its objection.
By letter dated August 21, 2008, the prosecutor responded that he continued
to object to defendant's admission pursuant to Guideline 3(i) "because
defendant's conduct was part of organized, continuing criminal
activity." The letter
continued:
Here, defendant was arrested in possession of multiple bags
of marijuana, along with empty bags.
Defendant confessed that he traveled to Newark to buy the marijuana, and
then returned to Bound Brook and repackaged the marijuana to sell it to
others. Based on this evidence, it
is apparent that defendant is involved in the distribution of marijuana. Unless defendant maintains his own
marijuana grow, the nature of the business requires that defendant obtain that
marijuana from a supplier and then, in turn, sell it to his customers. Accordingly, PTI diversion is not an
appropriate resolution of defendant's charges.
After
the prosecutor's rejection of his application, defendant entered guilty pleas
to the counts against him in the indictment pursuant to a plea agreement. He was sentenced to three years'
probation and appropriate fines and penalties. As a condition of probation, the court ordered defendant to
serve 180 days in jail and suspended that portion of the sentence.
Defendant
appealed from this decision to the Law Division, which affirmed the
prosecutor's decision to deny defendant's application. In this appeal, defendant argues that
the prosecutor's rejection of his application was an arbitrary, patent and
gross abuse of discretion that should be reversed.
The question
whether the State based its decision to reject a PTI application on appropriate
factors is a question of law, State v. Nwobu, 139 N.J. 236, 247
(1995), which we review de novo. State
v. Gandhi, 201 N.J. 161, 176 (2010).
The scope of
judicial review of a prosecutor's decision to reject a defendant's application is
severely limited. Nwobu, supra,
139 N.J. at 246. Prosecutors
are granted "wide latitude in deciding whom to divert into the PTI program
and whom to prosecute through a traditional trial." State v Negran, 178 N.J.
73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an
enhanced level of deference, State v. Baynes, 148 N.J. 434,
443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State
v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). To reverse, "[t]he court must find
that the prosecutor based a decision on an inappropriate factor, failed to
mention a relevant factor, or so inappropriately weighed the relevant factors
that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J.
28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra,
178 N.J. at 82-83; State v. Brooks, 175 N.J. 215, 225
(2002); Nwobu, supra, 139 N.J. at 246. In addition, to warrant judicial
intervention, the prosecutor's consideration must amount to a "clear error
in judgment" that "subvert[s] the goals underlying pretrial
intervention." Flagg v.
Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra,
158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).
"A
prosecutor's discretion regarding a PTI application is not without its limits,
however." Negran, supra,
178 N.J. at 82; Brooks, supra, 175 N.J. at 225. That discretion has been compared to
the discretion exercised by a trial court in imposing sentence, Brooks, supra,
175 N.J. 215, 228-29 (2002); State v. Pickett, 186 N.J. Super.
599, 604 (App Div. 1982), and is subject to the same standard of review. See State v. Roth, 95 N.J.
334, 363-64 (1984). When the
Supreme Court believed it necessary to "give content to" the phrase
applicable to the review of sentences, "clear abuse of discretion[,]"
it announced a three-part test drawn from "analogous areas of appellate
review[,]" id. at 363, to determine whether a sentencing decision
is entitled to deference:
First, we will always require that an exercise of
discretion be based upon findings of fact that are grounded in competent,
reasonably credible evidence.
Second, we will always require that the factfinder apply
correct legal principles in exercising its discretion. . . .
Third, we will exercise that reserve of judicial power to
modify sentences when the application of the facts to the law is such a clear
error of judgment that it shocks the judicial conscience.
[Id. at 363-64.]
The Court
specifically noted, "We have used this three-part test in defining the
phrase 'patent and gross abuse of discretion' by which we restricted appellate
supervision of a decision to admit a defendant to a pretrial supervisory
program." Id. at 364.
A threshold issue
for evaluating the exercise of discretion is whether there is evidential
support for the findings that form a basis for the determination under
review. In State v. Dalziel,
182 N.J. 496, 501 (2005), the Court observed, "we will always
require that an exercise of discretion be based upon findings of fact that are
grounded in competent, reasonably credible evidence." (Internal citation and quotation marks
omitted).
Within the
sentencing context, the "fundamental principle is that an appellate court
should not second-guess a trial court's finding of sufficient facts to support
an aggravating or mitigating factor if that finding is supported by
substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989)
(emphasis added); Roth, supra, 95 N.J. at 365-66. If the finding is not adequately
supported, "[c]onsideration of an inappropriate aggravating factor
violates the guidelines and thus is grounds for vacating sentence." State v. Pineda, 119 N.J.
621, 628 (1990).
Similarly,
the prosecutor is required to evaluate the criteria set forth in N.J.S.A.
2C:43-12(e) and the Rule 3:28 Guidelines in determining whether an
applicant should be admitted to PTI.
Negran, supra, 178 N.J. at 80-81. As part of a determination that is
"primarily individualistic in nature," id. at 80 (internal
citation and quotation marks omitted), the prosecutor must consider an
individual defendant's features that bear on his or her amenability to
rehabilitation, "assess a defendant's 'amenability to correction' and
potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008)
(quoting N.J.S.A. 2C:43-12(b)); see also State v.
Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). As the Brooks Court noted, a
prosecutor's analysis in these circumstances "'is much like that which is
made in connection with sentencing, where the so-called whole man is evaluated
by the court in order to arrive at an appropriate disposition.'" 175 N.J.
at 229 (quoting Pickett, supra, 186 N.J. Super. at 604). A prosecutor is also "required to
provide a criminal defendant with a statement of reasons justifying his or her
PTI decision, and the statement of reasons must demonstrate that the prosecutor
has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J.
at 584; see also Nwobu, supra, 139 N.J. at 249.
The
prosecutor's statement of reasons for the rejection of defendant's PTI
application fails to reflect the evaluation of all the criteria set forth in N.J.S.A.
2C:43-12(e) and the Rule 3:28 Guidelines and the
"individualistic" determination that is required to merit our
deference. Moreover, the sole
criterion cited by the prosecutor in denying the application is not supported
by the evidence.
As a preliminary
matter, the prosecutor's objection letter fails to address any facts relating
to defendant's "amenability to rehabilitation" and potential "responsiveness
to rehabilitation." Defendant
submitted a letter from Manuel Castellanos, the Youth Center Supervisor at
Middle Earth, who wrote about defendant's activities there over a period of six
years. Castellanos stated that
defendant helped with everything from planning to cleaning; helped other youth
with problems; was trusted sufficiently to be given "free reign for
activities and projects[;]" that defendant is "very reliable,
trustworthy, friendly and out going" and "a very big asset" to Castellanos
and the center. It was reported
that defendant regularly attends a program at Middle Earth that prepares youth
for employment and college, as well as a drug counseling program. He graduated from high school where he
received certifications for perfect attendance, culinary arts and office
occupations. He submitted letters
from neighbors, family friends and employers that spoke highly of his
character. Although these facts
are clearly relevant to a consideration of defendant's amenability and
potential responsiveness to rehabilitation, the prosecutor does not acknowledge
their existence.
Instead,
the prosecutor relied exclusively upon Guideline 3(i) as justification for the
rejection, characterizing defendant's conduct as "part of organized,
continuing criminal activity." The Guideline relied upon states:
Any defendant charged with crime is eligible for enrollment
in a PTI program, but the nature of the offense is a factor to be considered in
reviewing the application. If the crime was (1) part of organized criminal
activity; or (2) part of a continuing criminal business or enterprise; or (3)
deliberately committed with violence or threat of violence against another
person; or (4) a breach of the public trust where admission to a PTI program
would deprecate the seriousness of defendant's crime, the defendant's
application should generally be rejected. A defendant charged with a first or second degree offense or
sale or dispensing of Schedule I or II narcotic drugs as defined in L. 1970, c.
226 ([N.J.S.A.] 24:21-1 et seq.) 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.
Thus,
the Guideline identifies certain offenses as presumptively disqualifying, such
as a first- or second-degree offense and offenses that are "part of
organized criminal activity; or . . . part of a continuing criminal business or
enterprise[.]" The nature of
such offenses is only presumptively disqualifying, however, and the applicant retains
an opportunity to demonstrate compelling reasons for his admission.
In this case,
defendant was not charged with an offense that was presumptively disqualifying
on its face. For defendant's drug
offense to constitute a first- or second-degree offense, he would have had to
possess at least five pounds of marijuana, see N.J.S.A. 2C:35-5(b)(10)(b),
an amount eighty times greater than the amount for a fourth-degree
offense, the offense with which he was charged.
Nonetheless, the
prosecutor found that defendant's application should be rejected because the
offense was "part of organized, continuing criminal activity." His support for this characterization
is that defendant purchased the ounce of marijuana from a supplier and was
going to sell it to others. The
prosecutor cited no facts showing that defendant engaged in more than one
purchase of marijuana or that he made any sales other than those from that one
purchase. To conclude that
defendant's conduct was "part of organized, continuing criminal
activity," the prosecutor deconstructed the offense to its basic
components: the act of getting the marijuana and preparing it for sale. Under this analysis, every possession
of a drug with intent to distribute is a presumptively disqualifying offense,
without regard to the amount of the drug, the number of transactions, the time
period over which the offenses were committed or other relevant
considerations. This result is at
odds with the Legislature's stated intent that drug offenders should not be
precluded from PTI. See Caliguiri,
supra, 158 N.J. at 39.
We are satisfied
that the facts cited by the prosecutor are insufficient to permit reliance upon
Guideline 3(i) as a basis for rejecting defendant's PTI application. The prosecutor's exclusive reliance
upon this factor was a clear error in judgment that renders his conclusion a
patent and gross abuse of discretion.
See Caliguiri, supra, 158 N.J. at 37; Wallace,
supra, 146 N.J. at 584.
Further, the failure to consider facts relevant to a determination of defendant's
potential for rehabilitation constituted an additional defect in the
prosecutor's review process. As
that type of "[f]ailure to provide 'comprehensive and flexible' evaluation
'undermine[s] the efficacy of PTI[,]'" Caliguiri, supra, 158
N.J. at 39 (quoting State v. Leonardis I, 71 N.J. 85, 100 (1976)),
we are further satisfied that the prosecutor's judgment "subvert[ed] the
goals underlying pretrial intervention[,]" Flagg, supra, 171
N.J. at 572; Caliguiri, supra, 158 N.J. at 37; Bender,
supra, 80 N.J. at 93, warranting reversal.
|
