STATE OF NEW JERSEY VS. JAMES D. RAY (18-11-1148, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0691-19T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES D. RAY,
Defendant-Appellant.
_____________________________
Argued November 30, 2020 – Decided December 11, 2020
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 18-11-1148.
Brian J. Neary argued the cause for appellant (Law
Offices of Brian J. Neary, attorneys; Brian J. Neary, of
counsel and on the brief).
William P. Miller, Assistant Prosecutor, argued the
cause for respondent (Mark Musella, Bergen County
Prosecutor, attorney; William P. Miller, of counsel and
on the brief; Catherine A. Foddai, Legal Assistant, on
the brief).
PER CURIAM
Defendant appeals from a May 17, 2019 order denying his motion to
overturn the State's rejection of his pre-trial intervention (PTI) application.
Defendant is a Georgia resident who, while visiting his daughter in New Jersey,
was charged with, and pled guilty to, possession of a firearm without a permit
and possession of hollow-nose bullets. After considering the relevant statutory
factors, the Bergen County prosecutor denied defendant's PTI application.
Although the prosecutor initially considered the now-deleted Rule 3:28
Guideline's presumption that out-of-state residents were ineligible for admission
into PTI, the prosecutor and the trial judge later applied the proper eligibility
standard and determined that defendant failed to meet his burden to demonstrate
that adequate supervision would be available in Georgia. We therefore affirm.
On appeal, defendant raises the following points for this court's
consideration:
POINT I
THE PROSECUTOR'S OBJECTION TO
[DEFENDANT'S] PTI APPLICATION WAS
ARBITRARY AND CAPRICIOUS AND AMOUNTS
TO A PATENT AND GROSS ABUSE OF
DISCRETION.
POINT II
THE PROSECUTOR'S ACTION CLEARLY
SUBVERT[S] THE GOALS OF PTI.
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"[T]he decision to grant or deny PTI is a 'quintessentially prosecutorial
function.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v.
Wallace, 146 N.J. 576, 582 (1996)). Eligibility for PTI is based primarily on
"the applicant's amenability to correction, responsiveness to rehabilitation[,] and
the nature of the offense." N.J.S.A. 2C:43-12(b). Admission into PTI "requires
a positive recommendation from the PTI director and the consent of the
prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu,
139 N.J. 236, 246 (1995)). This determination is "'primarily individualistic in
nature' and a prosecutor must consider an individual defendant's features that
bear on his or her amenability to rehabilitation." Nwobu, 139 N.J. at 255
(quoting State v. Sutton, 80 N.J. 110, 119 (1979)). The determination must also
consider the factors set forth in N.J.S.A. 2C:43-12(e). Roseman, 221 N.J. at
621-22.
This court's scope of review of PTI determinations is "severely limited."
Negran, 178 N.J. at 82 (citing Nwobu, 139 N.J. at 246). The "close relationship
of the PTI program to the prosecutor's charging authority" that provides
"prosecutors wide latitude in deciding whom to divert into the PTI program and
whom to prosecute through a traditional trial" necessitates an "'enhanced' or
'extra'" deferential review of those decisions. Ibid. (citation omitted). Our
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review "serves to check only the 'most egregious examples of injustice and
unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
This court may overturn a denial of PTI if defendant "establish[es] that
the prosecutor's decision was a patent and gross abuse of discretion." R. 3:28-
6(b)(1); see State v. Johnson, 238 N.J. 119, 128-29 (2019). Such abuse of
discretion may arise where the denial of PTI "(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"
and the denial of PTI "clearly subvert[s] the goals underlying [PTI]." Johnson,
238 N.J. at 129 (quoting Roseman, 221 N.J. at 625). At the end of the day, "[t]he
question is not whether [the judge] agree[s] or disagree[s] with the prosecutor's
decision, but whether the prosecutor's decision could not have been reasonably
made upon weighing the relevant factors." Nwobu, 139 N.J. at 254.
The prosecutor properly considered the factors provided in N.J.S.A.
2C:43-12(e) in making his determination. The prosecutor considered the nature
of the offenses and the facts of the case, defendant's involvement with other
people in the crime, the effect on the prosecution of co-defendants,1 as well as
1
Defendant's daughter was also charged with possession of a firearm without a
permit and possession of hollow-nose bullets. Those charges were later
dismissed as part of defendant's guilty plea.
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whether the harm to society outweighs the benefits to society. N.J.S.A. 2C:43-
12(e)(1), (2), (15), (16), (17). Defendant possessed a handgun loaded with
hollow-nose bullets without a valid New Jersey license. A housekeeper
employed by the hotel where defendant and his daughter were staying allegedly
found the handgun in the room and alerted police. Surveillance video depicted
defendant moving the handgun from the hotel room to his vehicle immediately
after the housekeeper finished cleaning his room. The police later found a thirty-
eight-caliber revolver loaded with hollow-nose and ball-point rounds in
defendant's car.
The prosecutor also considered factors in favor of admission into PTI,
such as the fact that defendant is "[fifty-five-]years old and served in the
military" until he was honorably discharged and does not have "any known
history of . . . use of physical violence towards others and involvement with
organized crime[.]" However, in considering the totality of the circumstances,
the prosecutor determined that it would not consent to the application for
defendant's admission into PTI.
Defendant argues that the prosecutor wrongfully applied the now-deleted
presumption of ineligibility for out-of-state residents applying for admission
into PTI found in the Rule 3:28 Guidelines and Official Comments. Our
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Supreme Court deleted the Guidelines and Official Comments, and incorporated
portions of the text into Rule 3:28-1 to -10, effective July 1, 2018. See Johnson,
238 N.J. at 128 (noting that although the Court deleted the Guidelines, "many
of [the Guidelines'] prescriptions—with significant variation—are [now]
contained in Rules 3:28-1 to -10"). Previously under the Guidelines, out-of-
state citizens were ineligible for New Jersey's PTI program when they "reside[d]
such distances from New Jersey as to bar effective counseling or supervisory
procedures." R. 3:28, Guideline 3(b). Now "[n]on-residents are eligible to apply
for the [PTI] program but may be denied enrollment unless they can demonstrate
that they can receive effective counseling or supervision." R. 3:28-1(b).
The prosecutor initially relied on the Guideline's presumption of
ineligibility but explained before the motion judge that, even when applying the
proper standard, defendant failed to meet his burden to demonstrate that he could
receive effective counseling or supervision in Georgia. The judge agreed,
explaining that "[t]he State's reliance on Guideline 3[(b)] is easily supplanted
with [Rule] 3:28[-1](b)[.]" The judge noted that this court previously
recognized "the lack of alternative supervisory and counseling programs within
Georgia that could act as a sufficient proxy for New Jersey's PTI program," and
that defendant failed to show that circumstances in Georgia have changed to
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make out-of-state PTI possible. See State v. Waters, 439 N.J. Super. 215, 232-
33 (App. Div. 2015) (noting that "Georgia's First Offender program . . . relate[s]
only to defendants convicted in Georgia" and that "persons on [PTI] are
ineligible [for the Interstate Commission for Adult Offender Supervision]" ).
The prosecutor considered the proper statutory factors in making its
determination to decline to consent to defendant's application for admission to
PTI. And although the prosecutor initially relied on the now-deleted Guidelines,
both the prosecutor and judge later applied the proper standard and determined
that defendant failed to meet his burden to demonstrate that he could receive
effective counseling or supervision in Georgia. While acknowledging the
prosecutor considered defendant's military service to our nation as a factor
militating in favor of PTI, defendant contends the prosecutor did not give that
circumstance and other mitigating factors sufficient weight. Given the
deferential standard that limits our review of the exercise of prosecutorial
discretion, we decline defendant's invitation to substitute our judgment for that
of the prosecutor. See Nwobu, 139 N.J. at 254. The mitigating circumstances
in this case were accounted for not only in the prosecutor's PTI decision but also
in its decision to waive the mandatory imprisonment and forty-two-month
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period of parole ineligibility that ordinarily applies to a Grave's Act handgun
offense. See N.J.S.A. 2C:43-6.2.
As a result, the prosecutor's determination was not arbitrary and
capricious and does not amount to a patent and gross abuse of discretion. Nor
does it clearly subvert the goals of PTI.
Affirmed.
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