STATE OF NEW JERSEY VS. C.J.L. (19-07-1053, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2055-19T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
C.J.L.,1
Defendant-Appellant.
_______________________
Argued January 13, 2021 – Decided February 5, 2021
Before Judges Whipple, Rose, and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Accusation No. 19-07-
1053.
Charles J. Uliano argued the cause for appellant
(Chamlin Uliano & Walsh, attorneys; Charles J. Uliano,
of counsel; Andrew T. Walsh, on the brief).
Monica Lucinda Do Outeiro, Assistant Prosecutor,
argued the cause for respondent (Christopher J.
Gramiccioni, Monmouth County Prosecutor, attorney;
1
We use initials to protect the confidentiality of records related to applications
for enrollment in the pretrial intervention program. See R. 1:38-3(c)(5).
Maura K. Tully, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant C.J.L. pled guilty to a Monmouth County accusation, charging
third-degree endangering the welfare of children by possessing images of chil d
pornography, N.J.S.A. 2C:24-4(b)(5)(iii). Pursuant to the negotiated plea
agreement, the State agreed to recommend non-custodial probation, with
multiple conditions specific to defendant's offense. The State also agreed to
permit defendant to apply for pretrial intervention (PTI), although it did not
endorse his admission.
Defendant applied for PTI. A probation officer recommended rejection,
and the prosecutor agreed. After defendant's appeal to the Law Division was
denied, another judge sentenced defendant to a two-year probationary term and
imposed nearly all conditions set forth in the plea agreement, including
impromptu examinations of defendant's computer and restrictions on his internet
use.
Defendant now appeals from a January 22, 2020 judgment of conviction,
focusing on his PTI denial. Because we conclude defendant failed to
demonstrate the prosecutor's rejection was a patent and gross abuse of
discretion, see State v. Roseman, 221 N.J. 611, 625 (2015), we affirm.
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I.
The relevant facts are undisputed. In essence, between January 28, 2017
and February 11, 2017, defendant uploaded images of nude prepubescent boys
to the social media website, Tumblr. Five months later, between July 19, 2017
and July 24, 2017, defendant uploaded images and videos of nude prepubescent
boys to the same website, using a different username. Tumblr reported the
activities to the National Center for Missing and Exploited Children.
Thereafter, members of the Monmouth County Internet Crimes Task
Force identified defendant's home as the source of the child pornography
uploads. On August 7, 2018, task force detectives executed a search warrant at
the residence, and seized defendant's laptop and cellphone. In October 2018, a
forensic examination of defendant's computer and cellphone confirmed he had
uploaded child pornography images to Tumblr. Defendant later told authorities
"he has been viewing pornography since the seventh or eighth grade," and
"continued looking at younger children, although he was getting older."
On August 14, 2018, one week after police seized his laptop and
cellphone, defendant voluntarily began psychotherapy treatment with Mary
Merla-Ramos, Ph.D., a licensed psychologist. Thereafter, defense counsel
referred defendant to another licensed psychologist, Howard D. Silverman,
A-2055-19T1
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Ph.D., "for sex offense specific psychological evaluation" to assess defendant's
risk to the community and for treatment recommendations, if any. 2
Defendant was a month shy of his twenty-first birthday and a college
student at the time of his PTI application. He lived with his parents and brother
when school was not in session. The probation officer who interviewed
defendant acknowledged defendant was proactive in seeking counseling to
address his behavior before he was arrested. 3 But the officer expressed concerns
that defendant's ongoing conduct "since middle school" established "a
continuing pattern of antisocial behavior" that "require[d] a higher level of
supervision" than PTI could afford.
In a three-page memorandum, the prosecutor adopted the probation
officer's findings, and summarized her reasons for likewise denying defendant's
admission into the PTI program. Initially, the prosecutor cited Dr. Silverman's
report, which recommended: "a longer period of supervision; that defendant
2
Defendant did not provide Dr. Merla-Ramos's reports on appeal, but her
findings were summarized in Dr. Silverman's report, which is contained in
defendant's confidential appendix.
3
The record on appeal does not contain the probation officer's report rejecting
defendant's application. We rely instead on the prosecutor's October 7, 2019
memorandum, summarizing the officer's reasons for rejection.
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'require[d] sex offense specific treatment;['] and that defendant would 'benefit
from attending a twelve-step focused self-help group in the community such as
S[ex] A[ddicts] A[nonymous] [(S.A.A.)].'" The prosecutor also contended
defendant's conduct was inconsistent with the public policy underscoring PTI.
See, e.g., N.J.S.A. 2C:43-12(a)(3) (stating PTI "[p]rovide[s] a mechanism for
permitting the least burdensome form of prosecution for defendants charged
with 'victimless' offenses").
Turning to the seventeen criteria set forth in N.J.S.A. 2C:43-12(e), the
prosecutor found seven factors weighed against defendant's admission to PTI.
The prosecutor cited the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), and
the "facts of the case," N.J.S.A. 2C:43-12(e)(2), noting "[d]efendant created two
separate accounts to upload [child pornography] images . . . to Tumblr" during
two separate time frames.
The prosecutor also found applicable the "existence of personal prob lems
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." N.J.S.A.
2C:43-12(e)(5). In citing this factor, the prosecutor reiterated her concern about
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Dr. Silverman's conclusions, finding the treatment he recommended "is beyond
the scope of what can be managed by [PTI]." The prosecutor noted defendant
had treated nearly one year with Dr. Merla-Ramos at that point, yet he "still
ha[d] urges to view child pornography."
The prosecutor cited the "needs and interests of the victim and society,"
N.J.S.A. 2C:43-12(e)(7), finding the "strong need to punish . . . defendant's
behavior and prosecute . . . defendant" was well-supported by federal and New
Jersey case law. As one notable example, the prosecutor cited In re Cohen, 220
N.J. 7, 12 (2014) (recognizing child pornography "re-victimizes the children
involved in each viewing of the same image or video").
Next, the prosecutor found applicable the "extent to which the applicant's
crime constitutes part of a continuing pattern of anti-social behavior," N.J.S.A.
2C:43-12(e)(8), based on defendant's ongoing viewing and uploading images
depicting child pornography to Tumblr. And defendant acknowledged to Dr.
Silverman that he continued to have urges for underaged boys.
The prosecutor also considered "[w]hether or not prosecution would
exacerbate the social problem that led to the applicant's criminal act," N.J.S.A.
2C:43-12(e)(11), and found the "strong need to deter this behavior." Otherwise,
"avoid[ing] prosecution would exacerbate the social problem of exploiting
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children and send a message that this conduct is acceptable and will be treated
leniently."
Finally, the prosecutor considered "[w]hether or not the harm done to
society by abandoning prosecution would outweigh the benefits to society from
channeling an offender into a supervised treatment program," N.J.S.A. 2C:43-
12(e)(17). Again, the prosecutor noted child pornography involves the
exploitation of children, who "are victimized every time an image of their
exploitation is viewed."
In mitigation, the prosecutor weighed "defendant's law-abiding life,
community service, pursuit of higher education and ongoing psychological
treatment." On balance, however, the prosecutor determined the factors
weighed against his admission into the PTI program here, where the risk to
society existed if defendant did not adhere to Dr. Silverman's recommendations
for intense treatment. Accordingly, the prosecutor concluded PTI was
insufficient "to deter future criminal behavior on the part of . . . defendant."
Defendant appealed to the Law Division. Following argument, the judge
issued an oral decision, accompanying a December 18, 2019 order that denied
defendant's motion. After defendant was sentenced, he filed this appeal.
On appeal, defendant presents a single argument for our consideration:
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THE DENIAL OF [DEFENDANT]'S ADMISSION
[]TO [PTI] WAS A PATENT AND GROSS ABUSE
OF DISCRETION.
In particular, defendant claims the prosecutor primarily failed to consider
two of the seventeen factors enumerated in N.J.S.A. 2C:43-12(e), i.e., the
"motivation and age of the defendant," N.J.S.A. 2C:43-12(e)(3); and "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," N.J.S.A. 2C:43-12(e)(6). Referencing the findings of Drs. Merla-
Ramos and Silverman, defendant maintains he is "an excellent prospect for
rehabilitation" as evidenced by his "proactive" treatment which commenced
more than "one year prior to his arrest." 4
II.
Our scope of review of a PTI denial is "severely limited." State v. Negran,
178 N.J. 73, 82 (2003). We apply the same standard of review as the trial court,
and review its decision de novo. State v. Waters, 439 N.J. Super. 215, 226 (App.
Div. 2015).
4
Defendant's date of arrest is unclear from the record.
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Our Supreme Court has long recognized 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." Roseman, 221 N.J. at 621 (quoting State v. Nwobu, 139 N.J. 236,
240 (1995)). Whether to permit diversion to PTI "is a quintessentially
prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996).
"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." Nwobu, 139 N.J. at 246 (citation omitted).
Courts therefore afford prosecutors "broad discretion to determine if a defendant
should be diverted" to PTI. State v. K.S., 220 N.J. 190, 199 (2015).
Accordingly, a "[d]efendant generally has a heavy burden when seeking
to overcome a prosecutorial denial of his admission into PTI." State v. Watkins,
193 N.J. 507, 520 (2008). A reviewing court may, however, overturn a
prosecutor's rejection of PTI when a defendant "clearly and convincingly
establish[es] that the prosecutor's decision constitutes a patent and gross abuse
of discretion." State v. Nicholson, 451 N.J. Super. 534, 553 (App. Div. 2017)
(citation omitted).
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To establish a patent and gross abuse of discretion, a defendant must
demonstrate that the prosecutor's decision "(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 judgement"
and that "the prosecutorial error complained of will clearly subvert the goals
underlying [PTI]." Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 N.J.
84, 93 (1979)). The prosecutorial decision must be "so wide of the mark sought
to be accomplished by PTI that fundamental fairness and justice require judicial
intervention." Wallace, 146 N.J. at 583 (citation omitted). "Where a defendant
can make that showing, a trial court may admit a defendant, by order, into PTI
over the prosecutor's objection." Roseman, 221 N.J. at 625.
"The assessment of a defendant's suitability for PTI must be conducted
pursuant to the Guidelines set forth in Rule 3:28,[5] along with consideration of
factors listed in N.J.S.A. 2C:43-12(e)." Id. at 621. The decision whether to
admit a defendant to a PTI program is "'primarily individualistic in nature' and
a prosecutor must consider an individual defendant's features that bear on his or
5
Effective July 1, 2018, "following changes to Rule 3:28, . . . the Guidelines
were eliminated. Now, many of their prescriptions – with significant variations
– are contained in Rules 3:28-1 to -10. N.J.S.A. 2C:43-12(e) sets forth a list of
seventeen nonexclusive factors that prosecutors must consider in connection
with a PTI application." State v. Johnson, 238 N.J. 119, 128 (2019).
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her amenability to rehabilitation." Nwobu, 139 N.J. at 255 (quoting State v.
Sutton, 80 N.J. 110, 119 (1979)).
In the present matter the motion judge aptly determined the prosecutor's
decision denying defendant's application for admission to PTI was not a patent
and gross abuse of discretion. In doing so, the judge found "all relevant factors
and no inappropriate facts were considered" by the prosecutor. The judge also
was persuaded that "the level of supervision and treatment" recommended
"would be more appropriate for regular probation, which does have a sex
offender case load as opposed to [PTI]." We agree.6
Moreover, the prosecutor considered mitigating factors, but was
unpersuaded that defendant's positive attributes outweighed the seven factors
cited in this matter. The prosecutor specifically cited defendant's "ongoing
psychological treatment" but concurred with the probation officer that PTI could
not provide the level of supervision required, particularly in view of Dr.
6
We part company, however, with the judge's initial finding that defendant
"failed to overcome the heavy presumption of ineligibility for the PTI program"
based on the endangering charge here. As defendant noted in his merits brief,
defendant's offense does not fall within the purview of Rule 3:28-1(e) (providing
a presumption against admission to PTI for: (1) offenses that "involved or
touched [defendant's] public office or employment"; and (2) domestic violence
offenses committed under certain circumstances). Nonetheless, that finding
does not change the result we reach here.
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Silverman's recommendation that an "intensive treatment program" was
warranted here.
Although neither N.J.S.A. 2C:43-12 nor Rule 3:28-1 to -10 defines the
level of supervision provided by the PTI program, commentary to the court rules
explains:
The deterrence of criminal behavior in many cases
requires intensive work: counseling, psychotherapy,
drug-abuse prevention and control, employment
placement. Programs in these cases should be
measured against available treatment facilities and the
time constraints of PTI. For other defendants, however,
no more than a supervised pretrial probationary period
may be necessary when no extensive need for
rehabilitative services can be discerned.
[Pressler & Verniero, Current N.J. Court Rules, cmt. on
Guideline 1(d) to R. 3:28 (2021).[7]]
While we commend, as did the motion judge, "defendant's commitment
toward rehabilitation," Dr. Silverman recommended "two to three years of sex
offense specific treatment and participation in S.A.A." That intensive course of
treatment is better served by probationary supervision, which has a "sex offender
7
Guideline 1(d) provided that a purpose of PTI is: "To assist in the relief of
presently overburdened criminal calendars in order to focus expenditure of
criminal justice resources on matters involving serious criminality and severe
correctional problems." "Although the purpose provision of Guideline 1 was
omitted in the revision, the purposes there expounded upon remain relevant in
the new regulatory pattern." Pressler & Verniero, cmt. 1 on 3:28-1.
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case load." Accordingly, we reject defendant's reprised argument that a
probationary sentence is functionally equivalent to PTI.
Further, although probation and PTI involve supervision and
rehabilitation of a defendant, a probationary sentence results in a conviction.
Accordingly, a violation of a probationary sentence carries more serious
consequences than a violation of PTI, thereby presenting a stronger deterrent
effect against future criminal conduct than PTI. Notably, the prosecutor's
memorandum twice cited the "strong need to deter" defendant's conduct. Under
these circumstances, defendant's ongoing mental health issues present
challenges that are best addressed under the umbrella of probation's supervisory
services and not the limited services provided by the PTI program.
Having reviewed the record in view of the governing law, we conclude, as
the motion court found, the prosecutor properly considered the relevant factors
and defendant failed to sustain his burden of demonstrating the prosecutor's
decision was a patent and gross abuse of discretion. As such, the prosecutor's
decision was not "so wide of the mark sought to be accomplished by PTI,"
Wallace, 146 N.J. at 583, that it requires our intervention.
To the extent not addressed, defendant's remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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