STATE OF NEW JERSEY VS. SEEMA DUBEY (16-07-1214, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3733-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEEMA DUBEY,
Defendant-Appellant.
_____________________________
Submitted August 7, 2018 - Decided August 10, 2018
Before Judges Sabatino and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
16-07-1214.
Joel C. Seltzer, attorney for appellant.
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Patrick F. Galdieri,
II, Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant Seema Dubey appeals from a December 23, 2016 order
denying her motion to be admitted into the Pre-Trial Intervention
(PTI) program and a March 31, 2017 judgment of conviction for
obstructing administration of the law, N.J.S.A. 2C:29-1(a). We
affirm.
The facts relevant to the denial of defendant's motion for
admission to PTI are set forth in the ten-page written opinion of
Judge Colleen M. Flynn. Having examined the facts related to
defendant's arrest and the charges filed, Judge Flynn reviewed the
prosecutor's decision to reject defendant's application for
admission to PTI. Judge Flynn undertook a detailed analysis of
the factors governing defendant's entry into the PTI program in
accordance with N.J.S.A. 2C:43-12 and Rule 3:28, and determined
that the prosecutor's denial of defendant's admission to PTI was
not a patent or gross abuse of discretion.
On appeal, defendant argues:
THE PROSECUTOR'S DENIAL OF THE DEFENDANT INTO
THE PTI PROGRAM CONSTITUTED A GROSS AND PATENT
ABUSE OF DISCRETION LATER AFFIRMED BY THE
TRIAL COURT WHERE DEFENDANT PRESENTED THE
PERFECT CANDIDATE FOR ADMISSION.
Our scope of review of a PTI rejection is "severely limited".
State v. Negran, 178 N.J. 73, 82 (2003). We afford great deference
to the prosecutor's decision. State v. Wallace, 146 N.J. 576, 589
(1996). A "[d]efendant generally has a heavy burden when seeking
to overcome a prosecutorial denial of his [or her] admission into
PTI." State v. Watkins, 193 N.J. 507, 520 (2008). The decision
whether to admit a defendant to a PTI program is "'primarily
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individualistic in nature' and a prosecutor must consider an
individual defendant's features that bear on his or her amenability
to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995)
(quoting State v. Sutton, 80 N.J. 110, 119 (1979)).
To overturn a prosecutor's rejection of PTI, a defendant must
"clearly and convincingly establish that the prosecutor's decision
constitutes a patent and gross abuse of discretion." State v.
Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State
v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff’d, 193
N.J. 507 (2008)). An abuse of prosecutorial discretion is
established when a defendant demonstrates "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[.]" State v. Roseman, 221 N.J. 611, 625 (2015) (quoting
State v. Bender, 80 N.J. 84, 93 (1979)). "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 [PTI]." Ibid.
(quoting Bender, 80 N.J. at 93).
We affirm the denial of defendant's entry into the PTI
program, and the resulting sentence imposed after defendant's
guilty plea, for the reasons set forth in Judge Flynn's well-
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reasoned written PTI decision, the sentencing proceeding
transcript, and the judgment of conviction. We add only the
following comments.
Due to significant concerns related to defendant's mental
health status, the judge found that the primary considerations for
PTI, namely "the applicant's amenability to correction,
responsiveness to rehabilitation and the nature of the offense,"
N.J.S.A. 2C:43-12(b)(1), were not met in this case. Defendant's
mental health issues did not start or end with the parking dispute
that led to her arrest. Defendant, who called the police to report
the dispute, was argumentative and abrasive in her discussions
with the responding officer. Defendant told the officer "[g]o
fuck yourself you bastard, you [are] doing nothing for me."
Defendant was so agitated that she had to be pepper-sprayed by
backup officers prior to her arrest. Defendant continued her
aggressive and uncooperative attitude at the police station, and
was transported to the local hospital for a mental health
evaluation.
Defendant generated further concern related to her mental
health status during the PTI interview process conducted several
months after her arrest. The probation officer, in a written
report summarizing the PTI interview, noted defendant was
"extremely aggressive" and exhibited a rude and argumentative
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demeanor. Defendant also falsely accused the police officers of
inflicting physical injuries during her arrest and conspiring to
create a reason for her arrest.
Defendant retained a psychologist, Dr. Robert Donohue, to
support defendant's admission into the PTI program. Dr. Donohue
issued a two-page written report based on two meetings with
defendant. In his report, the doctor explained defendant was
suffering from stress related to her search for employment and was
experiencing adverse effects from a medication prescribed for a
medical condition. Dr. Donohue opined that defendant suffered a
panic attack preceding her arrest and that her conduct was not
related to aggression.
However, Judge Flynn noted that Dr. Donohue's conclusions
were at odds with defendant's post-arrest behaviors and with
statements by defendant's husband that defendant becomes "very
angry very fast." The judge further observed during oral argument
on the motion for admission into the PTI program that "[d]efendant
appeared to be talking to herself in a bizarre manner."
Having reviewed the record, we are satisfied that the
prosecutor's rejection of defendant's PTI application was not a
patent or gross abuse of discretion. The prosecutor considered
and evaluated the statutory factors, including a reasoned
discussion of defendant's mental health issues and the fact that
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PTI is not appropriate to address defendant's mental health issues.
We discern no basis to disturb Judge Flynn's thorough decision
sustaining the prosecutor's rejection of defendant's admission
into the PTI program.
Affirmed.
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