STATE OF NEW JERSEY VS. M.M.-P. (12-10-0648, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

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NOT FOR PUBLICATION WITHOUT THE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
parties in the
the case
case and
and its
its use
use in
in other
other cases
cases is
is limited.
limited. R.
R.1:36-3.
1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1281-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.M.-P.
Defendant-Appellant.
__________________________
Submitted April 25, 2018 — Decided June 25, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 12-
10-0648.
Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (David M. Galemba,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant M.M.-P.1 appeals from her April 25, 2013 conviction
for fourth-degree child neglect, N.J.S.A. 9:6-3,2 after a remand
from our Supreme Court for reconsideration of the denial of her
pre-trial intervention (PTI) application. She successfully
completed her sentence of one year of probation prior to the
remand. We now reverse, based on the holding in Dep't of Children
& Family Servs. v. E.D.-O., 223 N.J. 166 (2015).
On June 12, 2012, defendant went inside a local grocery store,
leaving her almost three-month-old infant son asleep in her car.
According to defendant, it was raining and the child was not
feeling well. Penns Grove police officers found the car locked
with the windows rolled up. Approximately five minutes after the
police arrived, defendant exited the store with two grocery bags.
The infant did not suffer any injury. Defendant had no prior
criminal history.
Defendant was indicted for second-degree endangering the
welfare of a child, N.J.S.A. 2C:24-4(a). The criminal case manager
rejected defendant's PTI application based on the seriousness of
the second-degree charge and defendant's appeal was rejected by
the trial judge. She then pled guilty to the fourth-degree charge,
1
We use initials pursuant to Rule 1:38-3(c)(5).
2
The judgment of conviction mistakenly refers to N.J.S.A. 9:6-
1.
2 A-1281-16T4
admitting she had put her son in danger by leaving him unattended
in her car, and reserved her right to appeal the denial of her PTI
application. She received a one-year probationary term. We
affirmed. State v. M.M.-P., No. A-5967-12 (App. Div. Oct. 16,
2014). The Supreme Court granted defendant's petition for
certification and remanded to the trial court in light of the
Supreme Court's decision in E.D.-O, decided after our opinion.
State v. M.M.-P., 223 N.J. 272 (2015). The State opposed
defendant's retroactive admission into PTI and the trial court
again affirmed the denial.
On appeal, defendant argues:
POINT I: BECAUSE THE FACTS IN E.D.O. WERE
NEARLY IDENTICAL TO THE FACTS IN THE PRESENT
CASE, THIS COURT MUST APPLY THE STANDARD FOR
FINDING IMMINENT DANGER USED THERE TO
DETERMINE WHETHER MS. [M.-P.] POSED AN
IMMINENT DANGER TO THE CHILD AT THE TIME OF
THE INDICTMENT IN QUESTION. MOREOVER, MS.
[M.-P.] WAS DENIED A FULL RECONSIDERATION
HEARING FOR THE PURPOSE OF ASSESSING HER PTI
ELIGIBILITY AS SHE STOOD BEFORE THE COURT.
A. THE PROSECUTOR'S ATTEMPT TO DISTINGUISH
THE PRESENT CASE FROM E.D.O. MISSTATED THE
FACTS IN E.D.O. AND FAILED TO APPLY THE PROPER
STANDARD FOR FINDING IMMINENT DANGER.
B. CONTRARY TO THE REMAND ORDER, THE
PROSECUTOR'S REJECTION OF MS. [M.-P.'s]
CURRENT APPLICATION FOR PTI FAILED TO CONSIDER
ANY OF THE RELEVANT FACTORS UNDER N.J.S.A.
2C:43-12(e), CONSIDERED IRRELEVANT FACTORS,
AND CONSTITUTED A CLEAR ERROR OF JUDGMENT.
3 A-1281-16T4
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. Baynes, 148 N.J. 434, 441 (1997) (quoting
State v. Nwobu, 139 N.J. 236, 240 (1995)). Admission into PTI is
"based on a recommendation by the criminal division manager, as
Director of the PTI Program, with the consent of the prosecutor."
Ibid. (citing R. 3:28(c)(1)).
Guideline 3(i) creates a "presumption against acceptance"
into PTI for defendants whose crimes fall into the enumerated
categories. Id. at 442. The categories include a defendant
charged with a second-degree crime. Guidelines for Operation of
Pretrial Intervention in New Jersey, Pressler & Verniero, Current
N.J. Court Rules, Guideline 3(i)(3), following R. 3:28 at 1294
(2018). Our Supreme Court has stated that "a prosecutor may, in
appropriate circumstances, reject an applicant solely because of
the nature of the offense." State v. Caliguiri, 158 N.J. 28, 36
(1999) (citation omitted). But our Supreme Court has warned:
"conditioning a defendant's admission to PTI solely on the nature
of his or her offense 'may be both arbitrary and illogical' and
that '[g]reater emphasis should be placed on the offender than on
the offense.'" State v. Brooks, 175 N.J. 215, 224-25 (2002)
(alteration in original) (quoting State v. Leonardis, 71 N.J. 85,
4 A-1281-16T4
102 (1976)). "Presumptions against PTI reflect an assumption that
certain defendants 'have committed crimes that are, by their very
nature, serious or heinous and with respect to which the benefits
of diversion are presumptively unavailable.'" State v. Roseman,
221 N.J. 611, 622 (2015) (quoting State v. Watkins, 193 N.J. 507,
523 (2008), when reversing the denial of PTI for a defendant
charged with second-degree official misconduct).
Judicial review of a prosecutor's decision to deny an
application for admittance into PTI is limited to whether the
defendant has "clearly and convincingly establish[ed] that the
prosecutor's decision constitutes a patent and gross abuse of
discretion." Watkins, 193 N.J. at 520 (quoting State v. Watkins,
390 N.J. Super. 302, 305-06 (App. Div. 2007)). "A patent and
gross abuse of discretion is defined as a decision that 'has gone
so wide of the mark sought to be accomplished by PTI that
fundamental fairness and justice require judicial intervention.'"
Ibid. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).
In E.D.-O., a Title 9 child abuse or neglect case, a mother
left her sleeping nineteen-month-old child unattended for
approximately ten minutes in a locked motor vehicle with the motor
running and the windows slightly open in a shopping mall parking
lot. 223 N.J. at 169. The Court noted the factors that should
be considered in determining whether a parent's decision to leave
5 A-1281-16T4
a child unattended in a car constitutes neglect. Id. at 193-94.
The factors include "the distance between the store and the parked
car, the mother's ability to keep the car in sight, how long the
car was out of view, how long the child remained unattended, and
any extenuating circumstances." Id. at 194. Other relevant
circumstances to be considered were "the weather on the day the
child is left unattended and the ability of someone to enter the
vehicle." Ibid. A fact-finding determination of neglect is not
a criminal determination and must be proven only by a preponderance
of the evidence. N.J.S.A. 9:6-8.46(b).
Here, defendant was charged with a second-degree crime for
behavior very similar to that the Supreme Court found not clearly
neglectful in E.D.-O. The fourth-degree crime of child neglect,
N.J.S.A. 9:6-3, fits the State's version of the facts as well as
the second-degree crime of child endangerment.3 Certainly, if
those facts were no more severe than in E.D.-O., the criminality
of the behavior is highly questionable. We therefore determine
that the State's refusal to admit defendant into PTI due to the
severity of the crime charged was a gross abuse of discretion.
Reversed.
3
We note that the Supreme Court has heard oral argument on the
issue of whether actual harm to the child must be shown for a
conviction of the second-degree child endangerment crime. State
v. Fuqua, 230 N.J. 560 (2017).
6 A-1281-16T4