STATE OF NEW JERSEY VS. EMMET J. RYDER (18-10-0933, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4437-18T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
EMMET J. RYDER,
Defendant-Respondent.
__________________________
Submitted October 16, 2019 – Decided November 1, 2019
Before Judges Fisher and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-10-0933.
Esther Suarez, Hudson County Prosecutor, attorney for
appellant (Roseanne Sessa, Assistant Prosecutor, of
counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
PER CURIAM
In this appeal, the State argues the motion judge erred in admitting
defendant to pretrial intervention (PTI) over the prosecutor's objection and
without requiring a guilty plea for a second-degree offense. After careful
consideration, we conclude that the motion judge's decision to override the
prosecutor's objection constituted an abuse of discretion.
The facts are simple. A handgun with a defaced serial number and a
loaded magazine were found in defendant's vehicle by a company hired to
repossess it. During questioning, defendant told police he found the gun about
two weeks earlier and meant to turn it over to them but forgot.
Defendant was indicted and charged with second-degree unlawful
possession of a weapon without a permit, N.J.S.A. 2C:39-5(b)(1), fourth-degree
possession of a prohibited weapon and device, N.J.S.A. 2C:39-3(d), and fourth-
degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1).
Defendant applied for entry into PTI. The criminal division manager's
office recommended acceptance, but the prosecutor expressed disagreement,
prompting defendant to seek relief in the trial court. In an oral opinion, the
judge granted defendant's motion and ordered PTI enrollment. The motion
judge also stayed the order pending appeal.
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In appealing, the State argues that the motion judge erred in ordering PTI
admission over the prosecutor's objection and by permitting PTI admission
without a guilty plea. Because we agree with the State's first point, we need not
reach the second.
Deciding to admit a defendant into PTI is a "quintessentially prosecutorial
function," State v. Roseman, 221 N.J. 611, 624 (2015), which must be afforded
"extreme deference," State v. Nwobu, 139 N.J. 236, 246 (1995). The prosecutor
is statutorily charged with conducting an "individualized assessment," Roseman,
221 N.J. at 621, of the defendant's "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)), through a consideration of N.J.S.A. 2C:43-12's
factors. The prosecutor's written statement when opposing admission facilitates
judicial review, assists in evaluating program success, allows defendants an
opportunity to respond, and dispels suspicions of arbitrariness. State v. Negran,
178 N.J. 73, 82 (2003). The prosecutor's statement must be specific enough to
give the defendant a "meaningful opportunity" to argue the prosecutor's position
is unfounded. Nwobu, 139 N.J. at 249.
The prosecutor objected to defendant's admission into PTI on the basis of
four of the statutory factors: the nature of the offense; the facts of the case; a
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continuing pattern of antisocial behavior; and the balancing of the costs and
benefits regarding potential societal harm. N.J.S.A. 2C:43-12(e)(1), (2), (8),
and (17). In support of the first, second, and fourth of these cited factors, the
prosecutor asserted that defendant had "possession of a black colored handgun
and a loaded magazine" in the trunk of his vehicle, that a serial number was
defaced, and that defendant lacked a permit to possess the weapon. To support
the third factor cited, the prosecutor referred to defendant's various motor
vehicle infractions and a thirty-five-year-old disorderly persons conviction. In
objecting, the prosecutor invoked the State's "obligation to prosecute gun
crimes" and cited in particular the obvious dangers presented by an individual's
possession of a loaded weapon in a motor vehicle.
To convince a court to override the prosecutor's position, an accused must
"clearly and convincingly" show that the refusal was "based on a patent and
gross abuse of . . . discretion." State v. Wallace, 146 N.J. 576, 582 (1996). Such
an abuse of discretion occurs when it can be shown that the "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." Id. at 583. To rise to the level of patent and gross, the
accused must show that the decision to deny admission "will clearly subvert
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[PTI's] goals," Roseman, 221 N.J. at 625, and "has gone so wide of the mark" of
PTI's goals "that fundamental fairness and justice require judicial intervention,"
Watkins, 193 N.J. at 520.
In ordering defendant enrolled in PTI over the prosecutor's objection, the
motion judge referred to the applicable legal authorities and recognized that the
prosecutor's decision was owed great deference, particularly when considering
the presumption against admission for second-degree crimes and the application
of the patent and gross standard. The judge noted that she believed the
prosecutor's statement of reasons to be a mere list of facts and that the
prosecutor's assertion of a continuing pattern of antisocial behavior was
erroneous because of the many years that had elapsed since defendant's
disorderly persons conviction. The judge also stated that she "fe[lt]" all
"relevant factors may not have been considered" and that some that were
considered factors were "not appropriate."
We conclude that the judge erred by not giving the prosecutor's position
sufficient deference and by discounting the factors on which the prosecutor
relied. For example, there is a presumption against PTI admission when a
defendant faces a second-degree offense. N.J.S.A. 2C:43-12(g)(3); R. 3:28-
5(b)(2). To be sure, this fact can be overcome by showing that the defendant
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would be amenable to the rehabilitative process, when there are compelling
reasons justifying admission, and when rejection of the defendant's PTI
application would otherwise be "arbitrary and unreasonable," State v. Coursey,
445 N.J. Super. 506, 510 (App. Div. 2016), but, even then, societal interests may
still justify denial, State v. Waters, 439 N.J. Super. 215, 227 (App. Div. 2015).
The State argues that public policy militates against PTI because of "the
strong interest" in deterring individuals from possessing "loaded weapons . . .
without permits," and that the public is better served when such matters are
adjudicated through prosecution. We agree with the State that this is a
compelling factor that fully supported the prosecutor's position. It may be, as
defendant persuasively argues and as the motion judge determined, that factor
seventeen – the pattern of continuing antisocial behavior, N.J.S.A. 2C:43-
12(e)(8) – might not have been applicable or certainly should not have been
given much weight due to the lengthy passage of time since defendant's prior
conviction. See State v. K.S., 220 N.J. 190, 201 (2015). Even if this factor was
removed from the calculus, the prosecutor's basis for objecting was entitled to
considerable deference because of the particular threat to society caused by
handguns. The allegations here are that defendant lacked a permit to possess a
handgun, he knew he should not have been in possession of the handgun – as he
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demonstrated when stating he meant to turn the weapon in but "forgot" – and
yet he kept the loaded weapon in his vehicle. Indeed, the handgun had a defaced
serial number and was not only loaded but loaded with hollow point bullets. The
prosecutor was fully justified in objecting to PTI enrollment and the judge
mistakenly failed to give the prosecutor's position sufficient deference.
Reversed.
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