OAK KNOLL VILLAGE CONDOMINIUM OWNERS ASSOCIATION, INC.VS. CHRIS ANN JAYE(DC-004807-15, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4924-15T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
YEIMY ACOSTA,
Defendant-Respondent.
_______________________________
Submitted December 22, 2016 - Decided February 22, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
15-05-0457.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for appellant (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent (Peter T. Blum, Assistant
Deputy Public Defender, of counsel and on the
brief).
PER CURIAM
The State appeals from a June 30, 2016 order allowing
defendant Yeimy Acosta to enroll in the county Pretrial
Intervention Program (PTI), over the State's objection. In a
single point on appeal, the State argues:
THE ORDER ENROLLING DEFENDANT INTO PTI OVER
THE STATE'S OBJECTION SHOULD BE REVERSED, AS
THE STATE'S OBJECTION WAS BASED UPON REVIEW
OF RELEVANT CRITERIA SET FORTH IN N.J.S.A.
2C:43-12 AND WAS NOT A PATENT AND GROSS ABUSE
OF DISCRETION.
Following our review, we are compelled to reverse the judge's
opinion, as admission to PTI is not an appropriate remedy when the
court finds the prosecutor failed to address all relevant factors
in a PTI review. We remand the matter for further proceedings
consistent with our opinion.
Defendant was charged in a three-count indictment with:
third-degree offenses of possession of gambling records, N.J.S.A.
2C:37-3(a)(1) and N.J.S.A. 2C:37-3(a)(2); promoting gambling,
N.J.S.A. 2C:37-2(a)(1); and a fourth-degree offense of maintaining
a gambling resort, N.J.S.A. 2C:37-4(a). The charges were issued
after police surveillance determined an illegal sports betting
operation was conducted from Fransol Enterprises, Inc., a
purported copy and print shop. A search incident to a warrant
recovered a computer, a gambling line sheet, Dominican Lottery
slips, a bundle of currency, and wager slips. Police arrested
defendant who was the only employee present. Defendant applied
for PTI, stating she worked for Fransol Enterprises, Inc., which
2 A-4924-15T2
she knew was "a gambling store," admitted she knew what was going
on, and noted the "owner never showed."
The Criminal Division Manager, as PTI Director, rejected
defendant's PTI application. Relying on defendant's prior arrests
and convictions for violating an ordinance in 2006, distribution
of narcotics in a school zone in 2007, and a disorderly persons
offense in 2014, the PTI Director concluded PTI was "unlikely to
deter future criminal and disorderly conduct." The Director
elaborated, stating "defendant's prior record indicates a
behavioral pattern not conductive to short-term rehabilitation and
indicates PTI will not serve as a sufficient sanction to deter
future criminal behavior." Since defendant had been on probation
for the drug distribution offense, but again engaged in criminal
conduct, the Director recommended probation as a more appropriate
lengthier supervision tool, to assure defendant continued to live
a law-abiding life.
The prosecutor reviewed the PTI request and the Director's
assessment. Concurring with the PTI Director's rejection of
defendant's application, the prosecutor cited these factors in his
written denial of PTI admission: the nature of the offense; the
facts of the case; the needs and interests of the victim and
society; the fact the crimes were part of a continuing pattern of
anti-social behavior; and defendant's criminal record reflecting
3 A-4924-15T2
she is a danger to others. N.J.S.A. 2C:43-12(e)(1), (2), (7),
(8), (9) and (17).
Defendant appealed. She argued the evidence showed she was
amenable to change because she left the offending place of
employment to undertake a job in a doctor's office, and expressed
a desire to further her education. She steadily worked, cared for
her young child, and maintained the value of PTI supervisory
treatment outweighed the public's need for prosecution.
The reviewing judge issued a letter opinion, overriding the
prosecutor's denial, and ordered defendant's admission to PTI.
The State filed the instant appeal.
As provided by N.J.S.A. 2C:43-12 and the Guidelines set forth
in Rule 3:28, "PTI is a 'diversionary program through which certain
offenders are able to avoid criminal prosecution by receiving
early rehabilitative services expected to deter future criminal
behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015) (quoting
State v. Nwobu, 139 N.J. 236, 240 (1995)). N.J.S.A. 2C:43-12
articulates the factors relevant to determining a defendant's
suitability for PTI and the applicable procedures, which must be
followed in that evaluation. Specifically, N.J.S.A. 2C:43-12(e)
frames factors considered first by the Criminal Division Manager
and then by the prosecutor. Ibid. The statutory list is not
4 A-4924-15T2
exhaustive and additional relevant facts may be considered. State
v. Negran, 178 N.J. 73, 84 (2003).
Any defendant may apply for admission into PTI. Guided by
the express standards, prosecutors possess broad discretion to
determine whether a defendant should be diverted into PTI. State
v. K.S., 220 N.J. 190, 199-200 (2015). "This discretion arises
out of 'the fundamental responsibility of prosecutors for deciding
whom to prosecute.'" Id. at 200 (quoting State v. Dalglish, 86
N.J. 503, 509 (1981)). "Thus, it has clearly been acknowledged
that this decision lies, in the first instance, with the
prosecutor, and once he [or she] has determined that he [or she]
will not consent to the diversion of a particular defendant, his
[or her] decision is to be afforded great deference." State v.
Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (citing State v.
Leonardis, 73 N.J. 360, 381 (1977)); see also Roseman, supra, 221
N.J. at 624 ("[T]he decision to grant or deny PTI is a
'quintessentially prosecutorial function.'" (quoting State v.
Wallace, 146 N.J. 576, 582 (1996))).
A prosecutor makes a tailored assessment of a defendant's
individualized "'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)). If rejected from
PTI, a defendant may challenge the State's decision before the
5 A-4924-15T2
court, by showing facts or materials demonstrating the defendant's
amenability to the rehabilitation process, along with any efforts
to effect behavioral changes to avoid future criminal conduct.
N.J.S.A. 2C:43-12(d). See also Pressler & Verniero, Current N.J.
Court Rules, Guideline 2 on R. 3:28 (2017).
The scope of judicial review of a prosecutor's determination
is severely limited, as prosecutors have wide latitude in deciding
whom to divert into the PTI program and whom to prosecute. Nwobu,
supra, 139 N.J. at 246. "Judicial review serves to check only the
'most egregious examples of injustice and unfairness.'" Negran,
supra, 178 N.J. at 82 (quoting Leonardis, supra, 73 N.J. at 384).
Thus, a judge may order a defendant into PTI over a prosecutor's
objection only if the defendant "clearly and convincingly
establish[es] that the prosecutor's refusal to sanction admission
into the program was clearly and convincingly based on a patent
and gross abuse" of discretion. Wallace, supra, 146 N.J. at 582.
The court's analysis must be fact-sensitive and shall
consider the totality of all facts and circumstances. What
constitutes a "patent and gross" abuse of discretion was discussed
by the Supreme Court in Roseman. An abuse of discretion is defined
as a decision "not premised upon a consideration of all relevant
factors, . . . based upon a consideration of irrelevant or
inappropriate factors, or . . . amount[ing] to a clear error of
6 A-4924-15T2
judgment." Roseman, supra, 221 N.J. at 625 (quoting State v.
Bender, 80 N.J. 84, 93 (1979)). However, a "patent and gross"
abuse of discretion is an error that "will clearly subvert the
goals underlying" PTI. Bender, supra, 80 N.J. at 93. See also
Watkins, supra, 193 N.J. at 520. Only where a patent and gross
abuse of discretion is shown, may a judge admit the defendant into
PTI over the prosecutor's objection. Roseman, supra, 221 N.J. at
625.
On appeal, the State argues the reviewing judge failed to
apply the heighted standard of review and did not find a patent
and gross abuse of discretion. The State argues the judge
erroneously "substituted his judgment for that of the prosecutor."
In his opinion, the judge concluded the State's denial of
defendant's PTI application was a "clear error of judgment." He
cited three reasons: First, defendant "was not the owner of the
business where the illegal gambling operation was conducted";
although she knew the operation's nature, it was unclear whether
she actively participated or was merely "complacent in its
operations." Second, the heavy reliance upon defendant's criminal
history and "alleged continuing pattern of anti-social behavior"
led to a determination she was not amenable to reform, which the
judge found was unsupported, noting the State failed to consider
defendant had no juvenile record, had completed probation for her
7 A-4924-15T2
drug offense, and did not reoffend while on probation. Third, the
State failed to weigh defendant's acceptance of responsibility for
her actions and current conduct demonstrating a receptiveness to
rehabilitation, such as her current gainful employment and caring
for her child.
Following our review, we conclude the court's analysis
ignored evidence squarely refuting the identified reasons for
overriding the prosecutor's rejection of defendant's PTI
application. Regarding the extent of defendant's knowledge and
participation in the scheme, defendant's work area was the location
of the betting operation and she was the only employee attending
the business when arrested. Importantly, defendant possessed
betting slips in her purse and admitted she knew what was going
on, and understand it was illegal. See State v. Purdy, 51 N.J.
303, 309 (1968) (noting possession of betting slips violates the
statute); State v. Gawronski, 9 N.J. Super. 51, 53 (App. Div.
1950) ("[T]he jury may infer guilty knowledge from proof of
possession of contraband articles in violation of the pertinent
statute."). Moreover, contrary to the judge's drawn inference,
there are no facts justifying defendant's conduct. The State's
evidence refutes any suggestion defendant was "just complacent"
and shows she was an active participant.
8 A-4924-15T2
As to her criminal record, at age twenty-one defendant was
arrested for possessing marijuana and incurred two municipal
convictions for disorderly conduct. At twenty-four, she was
indicted for third-degree drug distribution within a school zone,
for which she was sentenced to three-years probation. Probation
discharged defendant in January 2012 and within three years, she
again resorted to illicit activity by participating in the subject
gambling enterprise.
The facts relied upon by the judge, including defendant had
no juvenile record, had completed probation, and had no history
of violating probation, were accurate. However, the judge's
comments did not weigh defendant's adult criminal record, as
required by the PTI guidelines. Guideline 3(e) to R. 3:28 states
in pertinent part:
While the [PTI] is not limited to "first
offenders", defendants who have been
previously convicted of a criminal offense
should ordinarily be excluded. Such
defendants who have . . . irrespective of the
degree of the crime have completed a term of
probation, incarceration or parole within five
years prior to the date of application for
diversion shall ordinarily not be considered
for enrollment in PTI except on joint
application by the defendant and the
prosecutor.
[Pressler & Verniero, supra, Guideline 3(e)
on R. 3:28.]
9 A-4924-15T2
Here, defendant's indictable criminal conduct was motivated
by monetary gain. She asserts no history of drug use, yet was
previously sentenced for selling drugs. The State's evidence
shows within five years of completing probation, defendant took a
job in which she actively aided an illicit sports betting
operation. The evidence supported the State's position that prior
diversionary efforts were ineffective to deter defendant from
engaging in criminal activity.
The judge also failed to assess the State's reliance on the
nature of the offenses charged. The gambling offenses occurred
over a period of time and, as noted by the records seized, involved
numerous individuals, who regularly participated in betting.
Although we agree the offenses were not violent, we reject the
notion they were victimless crimes. Society's interest in
deterrence along with defendant's criminal history suggest a need
for prosecution and the more intense supervisory treatment
afforded by a probationary sentence.
In addition to not examining all facts in light of the law,
the judge also failed to explain his reasoning, especially his
conclusion the prosecutor's denial of admission subverted the
goals of PTI. R. 1:7-4. We cannot infer this conclusion from the
record.
10 A-4924-15T2
There is one issue on which we agree, that is, the State
failed to consider all relevant factors. See Nwobu, supra, 139
N.J. at 255 ("[A] prosecutor must consider an individual
defendant's features that bear on his or her amenability to
rehabilitation."). We conclude, however, this alone is
insufficient to order defendant's admission to PTI.
The State determined PTI would not curb defendant's future
criminal conduct, and more restrictive probation supervision was
necessary. Yet in doing so, the State did not address changes
made to defendant's behavior since her arrest, which suggest
amenability to rehabilitation, including her acknowledgement of
responsibility, the maintenance of legal employment and the
provision of care for her child. Considerations of a defendant's
attitude and conduct to avoid criminal conduct must be weighed
under Guideline 2 to R. 3:28, which should consider facts rendering
diversion to PTI effective.
Following our review, we conclude the State's recital of its
reasons for denying defendant's PTI application failed to consider
defendant's post-arrest actions that militate toward defendant's
"'amenability to correction' and potential 'responsiveness to
rehabilitation.'" Watkins, supra, 193 N.J. at 520 (quoting
N.J.S.A. 2C:43-12(b)). The failure to consider these significant
facts required the State's reconsideration and reassessment.
11 A-4924-15T2
We disagree with the trial judge's order concluding the
State's omission of relevant information was a basis to compel
defendant's PTI admission. Rather "the appropriate remedy for an
inadequate statement of reasons by the prosecutor is to require
further consideration of the omitted facts. Roseman, supra, 221
N.J. at 629.
Consequently, we reverse the opinion and vacate the June 30,
2016 order admitting defendant to PTI. We remand for additional
proceedings to require the prosecutor to amend the individualized
assessment of defendant's application. Particular attention must
be made to consider evidence supporting satisfaction of N.J.S.A.
2C:43-12(b), showing defendant was "amenab[le] to correction" and
responsive to rehabilitation if admitted to PTI.
Reversed and remanded. We do not retain jurisdiction.
12 A-4924-15T2