STATE OF NEW JERSEY VS. WILLIAM S. BING (17-02-0328, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5096-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM S. BING,
Defendant-Appellant.
_____________________________
Submitted September 10, 2019 – Decided September 16, 2019
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-02-0328.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lauren Stephanie Michaels, Assistant
Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals the denial of his pretrial intervention (PTI) application.
Finding no ground that would permit judicial intervention into that prosecutorial
determination, we affirm.
Defendant was indicted and charged with: third-degree possession of
heroin, a controlled dangerous substance (CDS); third-degree CDS possession
with the intent to distribute; third-degree CDS possession with the intent to
distribute on or within 1000 feet of school property; second-degree CDS
possession with the intent to distribute within 500 feet of public property; and
fourth-degree resisting arrest by flight. In applying for PTI, defendant urged the
fact that he had no prior convictions, as well as other mitigating circumstances.
The prosecutor considered all those circumstances, as well as other aggravating
circumstances, in ultimately adhering to the PTI program director's
recommendation that the facts and circumstances relating to the second-degree
charge warranted rejection.
In moving for relief in the trial court, defendant argued that the prosecutor
placed undue reliance on his prior record, particularly the fact that he was once
charged with conspiring to commit murder – for which he was acquitted – and
other arrests, all of which resulted in dismissal. In her oral decision, however,
the judge correctly observed that the prosecutor did not determine that
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defendant's prior arrests and charges weighed against PTI admission; instead the
judge concluded that the facts and nature of this case, the needs and interests of
society, the need for prosecution, and the harm that would result from
abandoning prosecution, provided ample grounds for outweighing the mitigating
factors and warranted a denial of admission to PTI. Defendant later pleaded
guilty to third-degree CDS possession within 1000 feet of school property and
was sentenced to a three-year probationary term.
In appealing the denial of PTI admission, defendant argues only that "the
prosecutor's rejection . . . [was] a patent and gross abuse of discretion that clearly
subverted the goals underlying PTI" that, he claims, must be "corrected by this
court." We disagree.
Because the decision to grant or deny PTI is "a quintessentially
prosecutorial function," State v. Wallace, 146 N.J. 576, 582 (1996), our courts
give prosecutors in such matters "a great deal of deference," State v. Roseman,
221 N.J. 611, 624 (2015), and only intervene when the circumstances "clearly
and convincingly establish that the prosecutor's refusal to sanction admission
into the program was based on a patent and gross abuse of . . . discretion," id. at
624-25 (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)). Such an abuse of
discretion may be found only when it is manifest that the prosecutorial decision:
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"(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." Id. at 625 (quoting State v. Bender, 80 N.J. 84, 93
(1979)).
Defendant's only colorable argument lies with his contention that the
prosecutor relied on his prior arrests and that such reliance was improper
because all those charges either resulted in acquittals or dismissals. See State
v. K.S., 220 N.J. 190, 202 (2015). But, as the judge correctly recognized, the
prosecutor's decision was not based on those events. 1 After closely examining
the record, we affirm substantially for the reasons set forth by Judge Siobhan A.
Teare in her oral decision. We have already delineated the factors that weighed
against PTI admission. The prosecutor also properly considered, as the judge
observed, that other factors – such as the lack of prior convictions, defendant's
age and motivation, his lack of involvement with gangs or organized crime, and
an absence of co-defendants – weighed in favor of admission. Ultimately, the
judge properly concluded that the prosecutor's weighing of these competing
1
It is true that those circumstances were recounted in the prosecutor's written
explanation, but only as part of "the narrative of defendant's background" and
not as support for an aggravating factor. In fact, the prosecutor recognized that
defendant had no prior convictions and viewed the absence of prior convictions
as mitigating in favor of PTI admission.
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factors did not produce a result that "amounted to a clear error in judgment."
We agree.
Affirmed.
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