State v. K.S. (072608) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. K.S. (A-36-13) (072608)
Argued September 24, 2014 -- Decided January 8, 2015
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers, principally, whether it was proper for the Somerset County Prosecutor
to rely upon adult criminal charges that had been dismissed and juvenile charges that had been diverted and
dismissed in rejecting defendant’s application for admission into the Pretrial Intervention Program (PTI).
Defendant K.S. was arrested and charged with driving while intoxicated and refusing to submit to a breath
test. As he was being transported to the Watchung Borough police station, defendant struck and attempted to spit
blood onto the arresting officer. In addition to the above offenses, defendant was charged and ultimately indicted
for third-degree aggravated assault on a law enforcement officer, fourth-degree throwing bodily fluids at a law
enforcement officer, third-degree resisting arrest, and fourth-degree criminal mischief.
Following his indictment, defendant sought admission into PTI. His application was reviewed by the PTI
program director, who was required to provide a written recommendation to the county prosecutor. The PTI director
recommended denial of defendant’s PTI application because of the assaultive nature of the offense and because of
defendant’s pattern of past anti-social behavior. After denial of his PTI application, defendant filed a motion to
compel admission claiming that the prosecutor failed to consider whether his bipolar disorder and mental illness
contributed to his conduct. The trial court remanded the matter to the prosecutor for consideration of the medical
report provided by defendant. The prosecutor responded by letter explaining that the report had been considered and
confirming the denial of defendant’s admission into PTI. The trial court subsequently denied defendant’s motion,
concluding that the denial of his PTI application was not a “patent and gross abuse of discretion.”
After his motion was denied, defendant entered into a negotiated plea agreement in which he agreed to
plead guilty to the charges in exchange for the State’s recommendation to dismiss the driving while intoxicated
charge. The State also agreed to recommend a non-custodial probationary sentence, community service, and
restitution. Defendant was sentenced in accordance with the plea agreement and later appealed, challenging the
denial of his PTI application. In an unpublished opinion, the Appellate Division affirmed the trial court, concluding
that “defendant failed to demonstrate that the prosecutor patently and grossly abused his discretion” by rejecting
defendant’s PTI application.
The Court granted defendant’s petition for certification. 216 N.J. 86 (2013).
HELD: Because the record includes no admissions of conduct to support the truth of the allegations in defendant’s
dismissed adult charges and diverted and dismissed juvenile charges, those charges were not appropriate factors to
be considered in deciding whether to admit defendant into PTI. Therefore, the judgment of the Appellate Division is
reversed and the matter is remanded to the prosecutor for reconsideration of defendant’s eligibility for PTI.
1. Rule 3:28 provides the administrative framework for the PTI Program, which is intended to offer an alternative to
prosecution and to promote deterrence through rehabilitation for qualified applicants. The Legislature also codified
the PTI Program by enacting N.J.S.A. 2C:43-12, which largely adopted the procedures and guidelines established by
Rule 3:28. Although the details of each county’s PTI Program vary, admission is uniformly reliant upon the
recommendation of the criminal division manager, the consent of the prosecutor, and the approval of the judge
designated to act on all matters pertaining to PTI Programs in the vicinage. R. 3:28(a), (b). N.J.S.A. 2C:43-12(e)
lists seventeen non-exclusive factors to be considered by the criminal division manager and prosecutor in
determining admission into PTI. In addition to the factors listed in the statute, a defendant’s mental illness is
relevant to the prosecutor’s consideration of a defendant’s PTI application. (pp. 6-8).
2. Although all defendants may apply for admission into PTI, there is a presumption against acceptance into PTI for
defendants who have committed certain categories of offenses, including crimes deliberately committed with
violence or threat of violence. This presumption can be rebutted by a defendant’s showing of compelling reasons to
justify his or her admission into PTI. In determining whether reasons are “compelling,” the prosecutor and any
reviewing court are required to consider the criteria set forth in N.J.S.A. 2C:43-12. Also, the written
recommendations of the program director and prosecutor must be provided to the defendant before they are
submitted to the court. R. 3:28(c)(3). (pp. 8-9)
3. A written rejection of a given application must reflect only a proper consideration of the identified information,
and may include a defendant’s criminal record. In State v. Brooks, this Court stated that a prosecutor could consider
arrests that resulted in dismissed or diverted charges for the limited purpose of “whether the arrest or dismissed
charge[s] should have deterred the defendant from committing a subsequent offense.” 175 N.J. 215, 229 (2002)
(citing State v. Green, 62 N.J. 547, 571 (1973) (“[T]he sentencing judge might find it significant that a defendant
who experienced an unwarranted arrest was not deterred by that fact from committing a crime thereafter.”)). In the
instant opinion, filed today, the Court disapproves of those statements from Brooks and Green, reasoning that
deterrence is directed at persons who have committed wrongful acts. The Court, therefore, rejects the declaration in
Brooks that “[a]nalogiz[ed] a prosecutor’s function . . . to that of a sentencing court,” and allowed for consideration
of prior dismissed charges to infer the defendant was not deterred from his prior arrests. For prior dismissed charges
to be considered properly by a prosecutor in connection with a PTI application, the reason for consideration must be
supported by undisputed facts of record or facts found at a hearing. When no such undisputed facts exist or findings
are made, prior dismissed charges may not be considered for any purpose. (pp. 9-10)
4. To overturn a prosecutor’s decision to exclude a defendant from the PTI Program, the defendant must clearly and
convincingly show that the decision was a patent and gross abuse of discretion. When a reviewing court determines
that the prosecutor’s decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross
abuse of discretion, the reviewing court may remand to the prosecutor for further consideration. Remand is the
proper remedy where the prosecutor considers inappropriate factors, or fails to consider relevant factors. (pp. 10-11)
5. In this case, the prosecutor concluded from defendant’s juvenile arrest that defendant has a “propensity towards
violence” and a “history of aggression towards other people.” Considering defendant’s juvenile charges and other
dismissed criminal charges, the prosecutor and PTI director concluded that defendant had “a violent history” and
that the incident here was “part of a continuing pattern of anti-social behavior.” However, defendant had no record
of criminal or penal “violations” as all of his prior charges were dismissed. Use of prior dismissed charges alone as
evidence of a history of and propensity for violence or a pattern of anti-social behavior, where defendant’s
culpability or other facts germane to admission into PTI have not been established in some way, constitutes an
impermissible inference of guilt. (pp. 11-14)
6. With regard to defendant’s contention that the prosecutor failed to consider adequately his bipolar disorder, the
Court notes that the prosecutor did consider but was not swayed by defendant’s mental-health evidence. Having
concluded that the prosecutor’s decision to exclude defendant from PTI was based on “consideration of
inappropriate factors or not premised upon a consideration of all relevant factors,” the Court reverses the judgment
of the Appellate Division, and remands this matter to the Somerset County Prosecutor for further consideration of
the medical evidence provided by defendant, the victim’s objection to defendant’s admission into PTI, and the
assaultive and violent nature of the offense charged, to determine whether to admit defendant into the PTI program.
The Court directs that in exercising discretion, the prosecutor may not consider defendant’s prior dismissed offenses
unless there are admissions or fact-findings that are relevant to one or more of the factors set forth in N.J.S.A.
2C:43-12(e). (pp. 14-16)
The judgment of the Appellate Division is REVERSED, the matter is REMANDED to the Somerset
County Prosecutor for further consideration of defendant’s PTI application consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-36 September Term 2013
072608
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
K.S.,
Defendant-Appellant.
Argued September 24, 2014 – Decided January 8, 2015
On certification to the Superior Court,
Appellate Division.
Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Jane C. Schuster, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
In this case, we consider whether it was proper for the
Somerset County Prosecutor to rely upon adult criminal charges
that had been dismissed and juvenile charges of possession of a
weapon, assault, fighting, and harassment that had been diverted
and dismissed in rejecting defendant’s application for admission
into the Somerset County Pretrial Intervention Program (PTI).
The trial court and the Appellate Division affirmed the
1
prosecutor’s decision. Because the record includes no
admissions of conduct to support the truth of the allegations in
defendant’s dismissed adult charges and diverted and dismissed
juvenile charges, those charges were not appropriate factors to
be considered in deciding whether to admit defendant into PTI.
We therefore reverse the judgment of the Appellate Division and
remand to the prosecutor for reconsideration of defendant’s
eligibility for PTI.
I.
The pertinent facts regarding defendant’s arrest, plea, and
consideration of his PTI application are as follows. Defendant
K.S. was arrested and charged with driving while intoxicated,
N.J.S.A. 39:4-50, and refusing to submit to a breath test,
N.J.S.A. 39:4-50.2. Following his arrest, defendant was
transported to the Watchung Borough police station. While being
transported, defendant became agitated. He struck and attempted
to spit blood from a cut lip onto the arresting officer,
Sergeant Gene McAllister. Defendant continued to struggle with
officers in the police station, but was finally subdued. In
addition to the above offenses, defendant was charged and
ultimately indicted for third-degree aggravated assault on a law
enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); fourth-degree
throwing bodily fluids at a law enforcement officer, N.J.S.A.
2
2C:12-13; third-degree resisting arrest, N.J.S.A. 2C:29-
2(a)(3)(a); and fourth-degree criminal mischief, N.J.S.A. 2C:17-
3(a)(1).
Following his indictment, defendant sought admission into
PTI. His application was reviewed initially by the criminal
division manager, who operated as the PTI program director and
was required to provide a written recommendation to the county
prosecutor. The PTI director recommended denial of defendant’s
PTI application because of the assaultive nature of the offense
and because of defendant’s pattern of past anti-social behavior.
After denial of his PTI application, defendant filed a
motion to compel admission with the trial court claiming that
the prosecutor failed to consider whether defendant’s bipolar
disorder and mental illness contributed to his conduct. The
trial court remanded the matter to the prosecutor for
consideration of the medical report provided by defendant in
support of his motion. The prosecutor responded by letter
explaining that the report had been considered and confirming
the denial of defendant’s admission into PTI. Following the
prosecutor’s response, the trial court denied defendant’s
motion, concluding that the denial of his PTI application was
not a “patent and gross abuse of discretion.”
Subsequently, defendant entered into a negotiated plea
agreement in which he agreed to plead guilty to the charges in
3
the indictment and to the charge of refusal to submit to a
breath test in exchange for the State’s recommendation to
dismiss the driving while intoxicated charge. The State also
agreed to recommend a non-custodial probationary sentence,
community service, and restitution. Defendant was sentenced in
accordance with the plea agreement.
Defendant appealed, asserting three reasons for challenging
the denial of his PTI application: first, defendant contends
that the PTI director and prosecutor improperly concluded that
his record reflected a history of violent and anti-social
behavior and therefore impermissibly inferred guilt from
defendant’s dismissed charges; second, defendant argued that
even assuming that he committed an assault while a juvenile in
2003, with the resulting charges being diverted and dismissed,
the six-year gap between that offense and the present charges
indicated no “continuing pattern” of anti-social behavior; and
third, defendant claimed that the prosecutor failed to consider
adequately defendant’s bipolar disorder as a factor supporting
his admission into PTI.
In an unpublished opinion, the Appellate Division affirmed
the trial court, concluding that “defendant failed to
demonstrate that the prosecutor patently and grossly abused his
discretion” by rejecting defendant’s PTI application. This
Court granted certification. 216 N.J. 86 (2013). Later, the
4
Attorney General elected to supersede the Somerset County
Prosecutor’s Office as counsel for the State.
II.
Defendant argues that the prosecutor abused his discretion
in denying defendant’s PTI application by failing to consider
all relevant criteria, namely the evidence of his mental
illness. Relying on this Court’s opinion in State v. Brooks,
175 N.J. 215 (2002), defendant also asserts the prosecutor
improperly inferred guilt from his arrest history, which
consisted only of dismissed charges, because he never admitted
guilt to any of the dismissed charges. Because of those legal
errors, defendant contends that this case must be remanded so
that the prosecutor can consider defendant’s application anew.
The State contends that the prosecutor merely considered
that defendant was not deterred by unwarranted arrests, and that
those arrests constituted part of a continuing pattern of anti-
social behavior. The State also argues that defendant admitted
his guilt to the 2003 diverted juvenile charges in a letter of
apology written as a condition of his diversion.
Finally, the State asserts that remand is not required
because the prosecutor provided other, appropriate reasons for
denying defendant admission into PTI -- including the assault of
Sergeant McAllister, which created a presumption against
admission into PTI that defendant failed to overcome.
5
Therefore, there are two issues presented to this Court:
first, whether the Somerset County Prosecutor’s Office
inappropriately considered defendant’s prior record of dismissed
charges; and second, whether the prosecutor failed to consider
properly defendant’s bipolar disorder in rejecting defendant’s
admission into PTI.
III.
We begin our discussion with the history of Pretrial
Intervention and the prosecutor’s responsibilities in the
admission of a defendant into the program. The Pretrial
Intervention Program began in 1970 as a municipal work release
diversionary program for Newark defendants. State v. Leonardis,
71 N.J. 85, 103 (1976). In subsequent years, the program was
expanded and, as a result of this Court’s decision in Leonardis,
uniform statewide guidelines were promulgated. See id. at 121-
22.
Rule 3:28 provides the administrative framework for the
program, which is intended to offer an alternative to
prosecution and to promote deterrence through rehabilitation for
qualified applicants. See also N.J.S.A. 2C:43-12(a)(stating the
purpose of Pretrial Intervention is to “[p]rovide an alternative
to prosecution” and “deterrence of future criminal or disorderly
behavior”). In 1979, the Legislature codified the Pretrial
Intervention Program by enacting N.J.S.A. 2C:43-12, which
6
largely adopted the procedures and guidelines established by
Rule 3:28. See State v. Watkins, 193 N.J. 507, 517 (2008);
State v. Nwobu, 139 N.J. 236, 245 (1995).
Although the details of each county’s Pretrial Intervention
Program vary, admission into a program is uniformly reliant upon
the recommendation of the criminal division manager, the consent
of the prosecutor, and the approval of the judge designated to
act on all matters pertaining to Pretrial Intervention Programs
in the vicinage. R. 3:28(a), (b). N.J.S.A. 2C:43-12(e) lists
seventeen non-exclusive factors to be considered by the criminal
division manager and prosecutor in determining admission into
Pretrial Intervention. Six of those factors are relevant to
this appeal: the “desire of the complainant or victim to forego
prosecution,” N.J.S.A. 2C:43-12(e)(4); “the needs and interests
of the victim and society,” N.J.S.A. 2C:43-12(e)(7); “the extent
to which the applicant’s crime constituted a continuing pattern
of anti-social behavior,” N.J.S.A. 2C:43-12(e)(8); “the
applicant’s record of criminal and penal violations,” N.J.S.A.
2C:43-12(e)(9); “whether or not the crime is of an assaultive or
violent nature,” N.J.S.A. 2C:43-12(e)(10); and “the history of
the use of physical violence toward others,” N.J.S.A. 2C:43-
12(e)(12). In addition to the factors listed in the statute, a
defendant’s mental illness is relevant to the prosecutor’s
consideration of a defendant’s Pretrial Intervention
7
application. State v. Hoffman, 399 N.J. Super. 207, 214-15
(App. Div. 2008). The factors that must be considered by the
prosecutor in determining an offender’s suitability for Pretrial
Intervention are not weighted. State v. Wallace, 146 N.J. 576,
585-86 (1996).
Notwithstanding the above eligibility factors, all
defendants may apply for admission. However, applicants “who
have committed serious and heinous crimes are generally
recognized as problematic from a rehabilitation standpoint.”
Watkins, supra, 193 N.J. at 513. There is a “‘presumption
against acceptance’” into Pretrial Intervention for defendants
who have committed certain categories of offenses. Id. at 520(quoting State v. Baynes, 148 N.J. 434, 442 (1997)). Thus,
“[i]f the crime was . . . deliberately committed with violence
or threat of violence against another person . . . the
defendant’s application should generally be rejected.” Pressler
and Verniero, Current N.J. Court Rules, Guideline 3(i) on R.
3:28 at 1169 (2015).
This presumption can be rebutted by showing “compelling
reasons” to justify a defendant’s admission into Pretrial
Intervention. Ibid. The defendant “must bear the burden of
presenting compelling facts and materials justifying admission,”
Pressler and Verniero, supra, comment to Guideline 3(i) on R.
3:28 at 1171, and the program director and prosecutor “must
8
actually consider the merits of the defendant’s application,”
State v. Green, 413 N.J. Super. 556, 561 (App. Div. 2010). “In
determining whether the reasons defendant relied upon to justify
his admission into Pretrial Intervention are ‘compelling,’ the
prosecutor and any reviewing court are required to consider the
criteria set forth in N.J.S.A. 2C:43-12.” State v. Seyler, 323
N.J. Super. 360, 369 (App. Div. 1999), aff’d o.b., 163 N.J. 69(2000). Also, the written recommendations of the program
director and prosecutor must be provided to the defendant before
they are submitted to the court. R. 3:28(c)(3).
“[A] prosecutor’s or program director’s written rejection
of a given application must reflect only a proper consideration”
of the identified information, Brooks, supra, 175 N.J. at 229,
and may include a defendant’s criminal record, N.J.S.A. 2C:43-
12(e)(9). That consideration includes “‘facts . . . not in
dispute.’” Brooks, supra, 175 N.J. at 230-31 (citation
omitted). In Brooks, relying on State v. Green, 62 N.J. 547,
571 (1973), we stated that a prosecutor could consider arrests
that resulted in dismissed or diverted charges for the limited
purpose of “whether the arrest or dismissed charge[s] should
have deterred the defendant from committing a subsequent
offense.” Id. at 229; Green, supra, 62 N.J. at 571 (“[T]he
sentencing judge might find it significant that a defendant who
experienced an unwarranted arrest was not deterred by that fact
9
from committing a crime thereafter.”). We disapprove of those
statements in Brooks and Green because deterrence is directed at
persons who have committed wrongful acts.
Proper consideration requires more than a prior arrest when
the identified information is reviewed in connection with the
rejection of a Pretrial Intervention application. The
prosecutor and program director may not infer guilt from the
sole fact that a defendant was charged, where the charges were
dismissed. Ibid. For the prior dismissed charges to be
considered properly by a prosecutor in connection with an
application, the reason for consideration must be supported by
undisputed facts of record or facts found at a hearing. Neither
are present here.
Accordingly, we hold that when no such undisputed facts
exist or findings are made, prior dismissed charges may not be
considered for any purpose. Thus, we reject the declaration in
Brooks that “[a]nalogiz[ed] a prosecutor’s function . . . to
that of a sentencing court,” and allowed for consideration of a
defendant’s prior dismissed charges to infer the defendant was
not deterred from his prior arrests. Ibid.In considering and evaluating information bearing upon a
defendant’s admission into Pretrial Intervention, prosecutors
are granted broad discretion to determine if a defendant should
be diverted. Wallace, supra, 146 N.J. at 582; State v.
10
Dalglish, 86 N.J. 503, 509 (1981). This discretion arises out
of “the fundamental responsibility of prosecutors for deciding
whom to prosecute.” Dalglish, supra, 86 N.J. at 509.
Accordingly, to overturn a prosecutor’s decision to exclude a
defendant from the program, the defendant must “clearly and
convincingly” show that the decision was a “patent and gross
abuse of . . . discretion.” Wallace, supra, 146 N.J. at 582
(citing State v. Leonardis, 73 N.J. 360, 382 (1977)).
When a reviewing court determines that the “prosecutor’s
decision was arbitrary, irrational, or otherwise an abuse of
discretion, but not a patent and gross abuse of discretion,” the
reviewing court may remand to the prosecutor for further
consideration. Dalglish, supra, 86 N.J. at 509. Remand is the
proper remedy when, for example, the prosecutor considers
inappropriate factors, or fails to consider relevant factors.
Id. at 510. A remand to the prosecutor affords an opportunity
to apply the standards set forth by the court “without
supplanting the prosecutor’s primacy in determining whether
[Pretrial Intervention] is appropriate in individual cases.”
Id. at 514.
IV.
With these principles in mind, we now turn to the denial of
defendant’s PTI application in this case. In her recommendation
to the prosecutor, the PTI director concluded that a pattern of
11
anti-social behavior was evidenced by defendant’s “history of
arrests dating back [to] 2003 including a prior [a]ggravated
[a]ssault as a juvenile for which he was granted a diversion.”
The prosecutor then stated that defendant’s criminal history
suggested the incident with Sergeant McAllister was “not
[defendant’s] first arrest for an aggressive or assaultive
offense,” and this offense was “part of a continuing pattern of
anti-social behavior.”
The prosecutor provided the following reasons for rejecting
defendant’s PTI application: the victim, Sergeant McAllister,
objected to defendant’s admission into the program, N.J.S.A.
2C:43-12(e)(4); the needs and interests of the victim and
society, N.J.S.A. 2C:43-12(e)(7); defendant’s continuing pattern
of anti-social behavior, N.J.S.A. 2C:43-12(e)(8); defendant’s
criminal record, N.J.S.A. 2C:43-12(e)(9); the assaultive and
violent nature of the offense charged, N.J.S.A. 2C:43-12(e)(10);
and defendant’s propensity towards violence, N.J.S.A. 2C:43-
12(e)(12). The prosecutor’s conclusions regarding defendant’s
continuing pattern of anti-social behavior, propensity towards
violence, and criminal record are germane to this appeal.
There is no question that “[t]he extent to which the
applicant’s crime constitutes part of a continuing pattern of
anti-social behavior” is relevant to a prosecutor’s
consideration of a Pretrial Intervention application. N.J.S.A.
12
2C:43-12(e)(8). Anti-social behavior includes “not only serious
criminal acts, but less serious conduct.” Brooks, supra, 175
N.J. at 227.
In State v. Negran, 178 N.J. 73 (2003), we considered a
prosecutor’s reliance on a twelve-year-old driving-while-
intoxicated charge and other motor vehicle offenses that were
more than ten years old. Although we concluded that the
offenses were too “temporally distant” to support a finding by
the prosecutor of a “‘pattern of anti-social behavior,’” we held
that a broad category of offenses could be considered in
determining an applicant’s suitability for Pretrial
Intervention. Id. at 84-85 (quoting Brooks, supra, 175 N.J. at
227). Such offenses “‘includ[e] disorderly person offenses,
offenses found under the juvenile code, and acts that
technically do not rise to the level of adult criminal
conduct.’” Ibid.In his denial of defendant’s admission into PTI, the
prosecutor here concluded from defendant’s juvenile arrest for
possession of a weapon, assault, fighting, and harassment that
defendant has a “propensity towards violence” and a “history of
aggression towards other people.” In light of those juvenile
charges and considering defendant’s other dismissed criminal
charges, the prosecutor and PTI director concluded that
defendant had “a violent history” and that the incident with
13
Sergeant McAllister was “part of a continuing pattern of anti-
social behavior.” To support its conclusions, the State claims
that defendant admitted to the underlying conduct supporting the
dismissed juvenile charges in an apology letter to the teacher
whom he allegedly assaulted. If the apology letter associated
with defendant’s dismissed juvenile charges had been part of the
record before the trial court or this Court and contained
admissions made by defendant, it would have been relevant.
However, the letter is not part of the record, and the PTI
director and prosecutor referenced only the underlying charge,
not the contents of or admissions in the letter of apology.
Because all of defendant’s prior charges were dismissed, he
had no record of criminal or penal “violations.” We have not
been provided with any writings, transcripts, or other evidence
considered by the PTI director and the prosecutor containing
admissions made by defendant in any of the matters, adult or
juvenile, for which the charges were dismissed. Unless an
inference of guilt or other conclusions could be drawn from at
least one dismissed charge, based on facts, defendant’s criminal
record includes no indication that he had a history of violence
or presented a danger toward others. Use of prior dismissed
charges alone as evidence of a history of and propensity for
violence or a pattern of anti-social behavior, where defendant’s
culpability or other facts germane to admission into Pretrial
14
Intervention have not been established in some way, constitutes
an impermissible inference of guilt. See Brooks, supra, 175
N.J. at 229.
In turning to defendant’s final contention, that the
prosecutor failed to consider adequately his bipolar disorder,
we note that prosecutors in making a Pretrial Intervention
determination must make an individualized assessment of the
defendant, taking into account all relevant factors. Watkins,
supra, 193 N.J. at 520. Because mental health issues impact
that assessment, the prosecutor is required to consider a
defendant’s mental illness. Hoffman, supra, 399 N.J. Super. at
214-15.
Here, the prosecutor did consider but was not swayed by
defendant’s mental-health evidence. The prosecutor stated in
his letter to the trial court, “[r]egardless of defendant’s
[bipolar] condition . . . defendant does [indeed] have a history
and propensity to act out in a violent manner towards others.”
It appears that the only evidence of defendant’s “history and
propensity to act out in a violent manner towards others” was
his offense history. Because we find that defendant has no
prior offenses that could be considered in evaluating his PTI
application, we find that remand is warranted to consider de
novo whether the medical evidence of defendant’s bipolar
15
disorder applies to the factors relating to his admission into,
or presumptive exclusion from PTI.
Having concluded that the prosecutor’s decision was based
on “consideration of inappropriate factors or not premised upon
a consideration of all relevant factors,” we reverse the
judgment of the Appellate Division, and remand this matter to
the Somerset County Prosecutor for further consideration of the
medical evidence provided by defendant, the victim’s objection
to defendant’s admission into PTI, and the assaultive and
violent nature of the offense charged, to determine whether to
admit defendant into the PTI program. In exercising discretion,
the prosecutor may not consider defendant’s prior dismissed
offenses unless there are admissions or fact-findings that are
relevant to one or more of the factors set forth in N.J.S.A.
2C:43-12(e).
V.
For the reasons set forth above, the judgment of the
Appellate Division is reversed and this matter is remanded to
the Somerset County Prosecutor for further consideration of
defendant’s PTI application consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
16
SUPREME COURT OF NEW JERSEY
NO. A-36 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
K.S.,
Defendant-Appellant.
DECIDED January 8, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7