STATE OF NEW JERSEY VS. RUSSELL LUKASIAK (18-01-0074, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


Menu:
  •                                       RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE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-0893-18T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    RUSSELL LUKASIAK,
    Defendant-Appellant.
    ____________________________
    Argued September 23, 2019 – Decided December 4, 2019
    Before Judges Fasciale and Moynihan.
    On appeal from the Superior Court of New Jersey, Law
    Division, Monmouth County, Indictment No. 18-01-
    0074.
    Keith G. Oliver argued the cause for appellant (Proetta,
    Oliver & Fay, attorneys; Keith G. Oliver on the brief).
    Monica Lucinda do Outeiro, Assistant Prosecutor,
    argued the cause for respondent (Christopher J.
    Gramiccioni, Monmouth County Prosecutor, attorney;
    Monica Lucinda do Outeiro, of counsel and on the
    brief).
    PER CURIAM
    Defendant Russell Lukasiak appeals from the trial court's denial of his
    request from pretrial intervention (PTI). On appeal, he argues:
    POINT I
    THE TRIAL COURT ERRED BY DENYING
    [DEFENDANT] ADMISSION TO [PTI] BECAUSE
    HE HAS SHOWN THE PROSECUTOR ABUSED
    THEIR   DISCRETION  IN  DENYING    HIS
    ADMISSION TO [PTI].
    POINT II
    THE TRIAL COURT ERRED BY NOT REMANDING
    THE CASE TO THE [PROSECUTOR] FOR
    RECONSIDERATION.
    POINT III
    THE   TRIAL  COURT      ERRED BY   NOT
    CONSIDERING ALL THE FACTORS SET FORTH
    IN N.J.S.A. 2C:43-12(e) WHEN DECIDING
    WHETHER TO ADMIT [DEFENDANT] TO [PTI].
    A.   THE TRIAL COURT ERRED BY NOT
    CONSIDERING FACTOR ONE, THE NATURE OF
    THE OFFENSE, AND FACTOR TWO, THE FACTS
    OF THE CAS[E].
    B.  THE TRIAL COURT ERRED BY NOT
    CONSIDERING    FACTOR        THREE,  THE
    MOTIVATION AND AGE OF . . . DEFENDANT.
    C.  THE TRIAL COURT ERRED BY
    FAILING TO CONSIDER FACTOR FOUR, THE
    DESIRE OF THE COMPLAINANT OR VICTIM TO
    FOREGO PROSECUTION.
    A-0893-18T3
    2
    D.  THE TRIAL COURT ERRED BY NOT
    CONSIDERING FACTOR FIVE, THE EXISTENCE
    OF PERSONAL PROBLEMS AND CHARACTER
    TRAITS WHICH MAY BE RELATED TO THE
    APPLICANT'S CRIME AND FOR WHICH
    SERVICES ARE UNAVAILABLE WITHIN THE
    CRIMINAL JUSTICE SYSTEM, OR WHICH MAY
    BE PROVIDED MORE EFFECTIVELY THROUGH
    SUPERVISORY     TREATMENT    AND    THE
    PROBABILITY THAT THE CAUSES OF CRIMINAL
    BEHAVIOR CAN BE CONTROLLED BY PROPER
    TREATMENT,    AND   FACTOR    SIX,  THE
    LIKELIHOOD THAT THE APPLICANT'S CRIME IS
    RELATED TO A CONDITION OR SITUATION
    THAT WOULD BE CONDUCIVE TO CHANGE
    THROUGH      HIS    PARTICIPATION     IN
    SUPERVISORY TREATMENT.
    E.  THE TRIAL COURT ERRED BY
    FAILING TO CONSIDER FACTOR SEVEN THE
    NEEDS AND INTERESTS OF THE VICTIM AND
    SOCIETY, FACTOR EIGHT, THE EXTENT TO
    WHICH THE APPLICANT'S CRIME CONSTITUTES
    PART OF A CONTINUING PATTERN OF ANTI-
    SOCIAL BEHAVIOR, AND FACTOR NINE, THE
    APPLICANT'S RECORD OF CRIMINAL AND
    PENAL VIOLATIONS AND THE EXTENT TO
    WHICH HE MAY PRESENT A SUBSTANTIAL
    DANGER TO OTHERS.
    F.  THE TRIAL COURT ERRED BY
    FAILING TO CONSIDER FACTOR TEN, WHETHER
    OR NOT THE CRIME IS OF AN ASSAULTIVE OR
    VIOLENT    NATURE,   WHETHER    IN  THE
    CRIMINAL ACT ITSELF OR IN THE POSSIBLE
    INJURIOUS    CONSEQUENCES    OF    SUCH
    BEHAVIOR.
    A-0893-18T3
    3
    G.  THE TRIAL COURT ERRED BY
    FAILING TO CONSIDER FACTOR ELEVEN,
    CONSIDERATION OF WHETHER OR NOT
    PROSECUTION WOULD EXACERBATE THE
    SOCIAL PROBLEM THAT LED TO THE
    APPLICANT'S   CRIMINAL  ACT,    FACTOR
    TWELVE, THE HISTORY OF THE USE OF
    PHYSICAL VIOLENCE TOWARD OTHERS, AND
    FACTOR THIRTEEN, ANY INVOLVEMENT OF
    THE APPLICANT WITH ORGANIZED CRIME.
    H.  THE TRIAL COURT ERRED BY
    FAILING TO CONSIDER FACTOR FOURTEEN,
    WHETHER OR NOT THE CRIME IS OF SUCH A
    NATURE THAT THE VALUE OF SUPERVISORY
    TREATMENT WOULD BE OUTWEIGHED BY THE
    PUBLIC NEED FOR PROSECUTION, FACTOR
    FIFTEEN, WHETHER OR NOT THE APPLICANT'S
    INVOLVEMENT WITH OTHER PEOPLE IN THE
    CRIME CHARGED OR IN OTHER CRIME IS SUCH
    THAT THE INTEREST OF THE STATE WOULD BE
    BEST SERVED BY PROCESSING HIS CASE
    THROUGH TRADITIONAL CRIMINAL JUSTICE
    SYSTEM PROCEDURES, AND FACTOR SIXTEEN,
    WHETHER    OR   NOT    THE   APPLICANT'S
    PARTICIPATION IN PRETRIAL INTERVENTION
    WILL ADVERSELY AFFECT THE PROSECUTION
    OF CODEFENDANTS.
    I.  THE TRIAL COURT ERRED BY NOT
    CONSIDERING FACTOR SEVENTEEN, WHETHER
    OR NOT THE HARM DONE TO SOCIETY BY
    ABANDONING     CRIMINAL   PROSECUTION
    WOULD OUTWEIGH THE BENEFITS TO SOCIETY
    FROM CHANNELING AN OFFENDER INTO A
    SUPERVISORY TREATMENT PROGRAM.
    A-0893-18T3
    4
    Because defendant failed to show the prosecutor's rejection of his PTI
    application represented a patent and gross abuse of discretion, or a remand was
    required because of an abuse of discretion, we affirm.
    Defendant was indicted for third-degree criminal restraint, N.J.S.A.
    2C:13-2(a) (count one), first-degree aggravated sexual assault, N.J.S.A. 2C:14-
    2(a)(1) (count two) and third-degree endangering the welfare of a child, N.J.S.A.
    2C:24-4(a)(1) (count three). The victim, O.P., was a ten-year-old relative of
    defendant's wife, who defendant assaulted in his home when she was under his
    care.1 Pursuant to a plea agreement, defendant pleaded guilty to third-degree
    criminal restraint; the other two charges were dismissed.         Defendant was
    sentenced to a probationary term which included compliance with Megan's Law.
    See N.J.S.A. 2C:7-1 to -23.
    Defendant applied for PTI after he entered the guilty plea. 2 Although a
    probation officer who interviewed defendant, designated as a "PTI investigator"
    1
    We use the victim's initials to protect her privacy. See N.J.S.A. 2A:82-46(a).
    2
    We note the application was made outside the time constraints of Rule 3:28(h)
    that, notwithstanding the broader parameters set forth in N.J.S.A. 2C:43 -12(e),
    requires the application to be made "no later than twenty-eight days after
    indictment." The record is insufficient for us to determine if the prosecutor
    "complete[d] a review of the application and inform[ed] the court and defendant
    (continued)
    A-0893-18T3
    5
    by the trial court, recommended that defendant be "cautiously accepted," forty-
    seven days after the date of the PTI investigator's report, an assistant prosecutor
    authored a memorandum to the Monmouth County Prosecutor stating "the St ate
    is rejecting [defendant's] application into the PTI program." 3
    In the rejection memorandum, the prosecutor cited to five specific
    statutory criteria: (1) the nature of the offense; (2) the facts of the case; (3) the
    motivation and age of the defendant; (4) the desire of the complainant or victim
    to forego prosecution; and (10) whether or not the crime was of an assaultive
    nature or violent nature, whether in the criminal act itself or in the possible
    injurious consequences of such behavior.4 N.J.S.A. 2C:43-12(e)(1), (2), (3), (4),
    and (10). In considering the first and second criteria, the prosecutor focused on
    defendant's charge and guilty plea to third-degree criminal restraint, "a violent
    within fourteen days of the receipt of the criminal division manager's
    recommendation" in compliance with the same Rule. R. 3:28(h).
    3
    We similarly point out that the record is barren of the prosecutor's approval of
    the position taken by the assistant prosecutor or any authorization for the
    assistant prosecutor to copy the memorandum to the court and defendant, as she
    did, ostensibly rejecting defendant's PTI application. See N.J.S.A. 2C:43-12(c),
    (e); R. 3:28(h) (providing review and recommendation is to be made by the
    prosecutor).
    4
    As confirmed by the State at oral argument, the rejection memorandum
    mistakenly designated factor ten as factor nine.
    A-0893-18T3
    6
    offense in which the [ten]-year-old victim was exposed to the risk of serious
    bodily injury by . . . defendant, a trusted family member, who was supervising
    the child at the time." As to the third criterion, although considering defendant's
    advanced age, the "substantial number of character reference letters" submitted
    in support of his application, as well as his "strong desire to enter into the PTI
    program," the prosecutor concluded,
    defendant maintains that the allegations against him are
    false, and he said [to the PTI investigator] that he
    "would never do such a thing." Since . . . defendant
    refuses to accept any wrongdoing on his part, it does
    not appear that he is amenable to correcting his
    behavior, thereby lacking motivation to successfully
    complete the [PTI] program.
    O.P. opposed defendant's PTI admission, to which, in considering the fourth
    criterion, the prosecutor gave "great weight under the circumstances." The
    resultant injurious consequences of defendant's behavior, in view of the
    assaultive or violent nature of the crime—the tenth statutory criterion—included
    the emotional injuries to O.P., who: "reported experiencing suicidal thoughts,
    depression, [post-traumatic stress disorder] and experienced a mental
    breakdown after testifying in front of the Grand Jury"; was "so fearful of . . .
    defendant that she is now staying with a friend instead of her family because of
    A-0893-18T3
    7
    her fear that . . . defendant knows where she lives"; and "enrolled in weekly
    counseling."
    The memorandum continued:
    Having considered the totality of the PTI investigator's
    report, including factors that weigh in favor of . . .
    defendant's admission into PTI (i.e., his lack of criminal
    history, his desire to enter the program, the large
    amount of reference letters) given the serious nature of
    the offense, his denial of wrongdoing and the victim's
    objection, the State is rejecting his application into the
    PTI program.
    The trial court denied defendant's appeal of the prosecutor's rejection,
    finding the prosecutor "considered the relevant factors in determining whether
    to admit . . . defendant into" PTI and, deferring to the prosecutor's discretion in
    weighing those factors, 5 concluded the prosecutor's decision was neither a patent
    and gross abuse of discretion, nor was there "anything arbitrary, capricious or
    unreasonable about the [prosecutor's] determination[.]"
    Inasmuch as the decision to permit a defendant's diversion to PTI "is a
    quintessentially prosecutorial function," State v. Wallace, 
    146 N.J. 576
    , 582
    (1996), our scope of review of a PTI rejection is "severely limited," State v.
    5
    N.J.S.A. 2C:43-12(e) lists the seventeen, non-exclusive criteria prosecutors
    are to "consider in formulating their recommendation of an applicant's
    participation" in PTI.
    A-0893-18T3
    8
    Negran, 
    178 N.J. 73
    , 82 (2003). "Prosecutorial discretion in this context is
    critical for two reasons. First, because it is the fundamental responsibility of the
    prosecutor to decide whom to prosecute, and second, because it is a primary
    purpose of PTI to augment, not diminish, a prosecutor's options."          State v.
    Nwobu, 
    139 N.J. 236
    , 246 (1995). Accordingly, courts give prosecutors "broad
    discretion" in determining whether to divert a defendant into PTI. State v. K.S.,
    
    220 N.J. 190
    , 199 (2015).        We, therefore, give PTI decisions "enhanced
    deference[.]" State v. Brooks, 
    175 N.J. 215
    , 225 (2002).
    The prosecutor's discretion is not unbridled, however.
    If a defendant can "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," a reviewing court may overrule the
    prosecutor and order a defendant admitted to PTI. A
    "patent and gross abuse of discretion" is more than just
    an abuse of discretion as traditionally conceived; it is a
    prosecutorial decision that "has gone so wide of the
    mark sought to be accomplished by PTI that
    fundamental fairness and justice require judicial
    intervention." In State v. Bender, 
    80 N.J. 84
     (1979), we
    elaborated on the patent and gross abuse of discretion
    standard:
    Ordinarily an abuse of discretion will be
    manifest if defendant can show 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. . . .
    A-0893-18T3
    9
    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].
    [Id. at [93] (citation omitted).]
    [Wallace, 
    146 N.J. at 582-83
     (citation omitted) (first
    quoting State v. Leonardis, 
    73 N.J. 360
    , 382 (1977);
    then quoting State v. Ridgway, 
    208 N.J. Super. 118
    ,
    130 (Law Div. 1985)).]
    Defendant has failed to meet his burden.            Obviously, the prosecutor
    considered the criteria delineated in the memorandum. Contrary to defendant's
    contention that the prosecutor "placed all the weight on the allegations of sexual
    assault," neither the endangering nor the aggravated sexual assault counts were
    mentioned in the rejection memorandum; only the criminal restraint charge was
    considered.
    Further, the weight assigned to the five mentioned factors was not
    arbitrary, irrational or otherwise an abuse of discretion, much less a patent and
    gross abuse. Despite defendant's claim that he "was seeking to calm down a
    ten[-]year[-]old child who was in the middle of a meltdown," and that his
    "actions were committed in the heat of the moment" without "any malicious
    intent," he pleaded guilty to criminal restraint. That is, he admitted the nature
    of the offense and the facts of the case, see N.J.S.A. 2C:43-12(e)(1) and (2),
    A-0893-18T3
    10
    included his knowing restraint of O.P., "unlawfully in circumstances exposing
    [her] to risk of serious bodily injury[,]"6 N.J.S.A. 2C:13-2(a). Moreover, the
    crime was a sex offense, N.J.S.A. 2C:7-2(b)(2), requiring registration under
    Megan's Law, N.J.S.A. 2C:7-2(a)(1).
    As to the third criterion, the prosecutor considered defendant's age. And
    the prosecutor's determination that defendant denied the allegations is buttressed
    by the PTI investigator's report documenting her interview with defendant:
    "[h]e maintains that the allegations against him are false and stated that he
    'would never do such a thing.'" Defendant contends he is amenable to correcting
    his behavior as evidenced by his semiweekly therapy to address his anxiety and
    depression.   He points to two reports, one from the licensed professional
    counselor (LCP) who assessed defendant on March 26; the other from the
    psychologist who examined defendant on March 19, 2018.               The reports,
    prepared after his interview with the PTI investigator on March 8, 2018, were
    obviously not included with defendant's PTI application, and there is no record
    proof of them being forwarded to the prosecutor. Even if they were, we discern
    no evidence in the reports pertinent to the statutory PTI factors.
    6
    The plea transcript is not included in the appeal record, but defendant does not
    allege the factual basis to his plea did not include these statutory elements.
    A-0893-18T3
    11
    The LCP's report mentions defendant and the counselor "continue to
    address cognitive distortions related to depression and are processing effective
    [cognitive behavioral therapy] techniques," and that defendant "appears to be
    making progress in treatment and is practicing coping skills to alleviate
    symptoms of depression." Nothing in the report is relevant to defendant's
    motivation, other than the self-serving impetus he currently advances in his
    merits brief: to "overcome" the "considerable stress" and resulting "depression
    and anxiety" he says were engendered from "[t]he incident" and to obtain the
    "benefit from the treatment services" through PTI. Although defendant avers in
    his merits brief that "it is clear the treatments available through [PTI] would be
    benefication (sic)" to him and that he "understands he made a mistake and is
    actively seeking treatment," none of the treatment he has undertaken is related
    to the cause of his crime, only the impact his prosecution has had on him. He
    also states that he "is further motivated to succeed in the program so he is not
    labeled as a convicted felon and forced to register as a sex offender under
    Megan's Law" and is also motivated "to complete [PTI] and work on rebuilding
    his name and reputation."
    Additionally, even though the psychologist determined defendant posed
    "a very low risk to the community sexually," he recommended defendant, as a
    A-0893-18T3
    12
    precaution, "not have unsupervised access with young girls," and further stated
    that defendant would "benefit from therapy to guide him in achieving a positive
    adjustment and in managing his emotional distress."
    As such, the reports are not relevant to the fifth, sixth, eleventh, fourteenth
    and seventeenth statutory factors which were not expressly mentioned in the
    rejection memorandum. Neither report evidences any treatment or plan for
    defendant to address his criminal behavior. Nor are the reports or defendant's
    treatment relevant to the seventh factor which defendant argues was ignored by
    the prosecutor. Tellingly, defendant argues the prosecutor failed to consider
    criterion seven—"[t]he needs and interests of the victim and society[,]" N.J.S.A.
    2C:43-12(e)(7)—because the "needs and interests of society would be better
    served by not saddling [defendant] with a criminal record and forcing him to
    register under Megan's Law for the rest of his life." His focus on returning to
    coaching and mentoring young men and women is not relevant to the needs and
    interests of the victim and society, especially for a defendant who admitted to a
    sex offense that exposed the victim to serious bodily injury—a crime defendant
    contends was only "technically assaultive[.]"
    A-0893-18T3
    13
    The prosecutor considered that defendant had no prior record.             The
    charges do not involve any codefendants. Thus, criteria eight, nine, twelve,
    thirteen, fifteen and sixteen are irrelevant.
    We determine the balance of defendant's arguments, including his
    contention that the victim's mother stated she would not be averse to his
    admission to PTI if he "paid $40,000 in moving and therapy expenses" and, as
    such, the victim's desire whether to forego prosecution should be afforded little
    weight, to be without sufficient merit to warrant discussion in this opinion. R.
    2:11-3(e)(2).
    We discern no "clear error of judgment" that would warrant a court order
    enrolling defendant in PTI. State v. Lopes, 
    289 N.J. Super. 460
    , 475 (Law. Div.
    1995) (quoting Nwobu, 
    139 N.J. at 247
    ). The prosecutor did not "fail[] to
    consider all relevant factors or consider[] irrelevant factors[.]" 
    Ibid.
     (quoting
    Nwobu, 
    139 N.J. at 247
    ). This is not one of those cases where the prosecutor's
    consideration or weighing process requires judicial interference "to check [] the
    'most egregious examples of injustice and unfairness.'" State v. Lee, 
    437 N.J. Super. 555
    , 563 (App. Div. 2014) (alteration in original) (quoting Negran, 
    178 N.J. at 82
    ). The denial of defendant's PTI application was neither a patent and
    gross abuse of discretion, nor an abuse of discretion requiring a remand.
    A-0893-18T3
    14
    Affirmed.
    A-0893-18T3
    15