STATE OF NEW JERSEY VS. TAYLOR DOE (17-10-0855, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-4693-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAYLOR DOE,1
Defendant-Appellant.
_______________________
Submitted June 4, 2020 – Decided July 13, 2020
Before Judges Alvarez and DeAlmeida
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 17-10-
0855.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
1
Defendant did not move to proceed under a pseudonym. However, we have
elected to use one (Taylor Doe) when referring to defendant. See Sonia Doe, a
Pseudonym v. N.J. Dep't of Corr., No. A-5101-18 (App. Div. June 3, 2020). In
this circumstance, defendant's privacy interests outweigh the Judiciary's policy
of transparency. See ABC v. XYZ Corp., 282 N.J. Super. 494, 501-02 (App.
Div. 1995); see also N.J.S.A. 2A:82-46(b).
Charles A. Fiore, Gloucester County Prosecutor,
attorney for respondent (Alec J. Gutierrez, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Taylor Doe was prosecuted for two separate acts of third-
degree criminal mischief, N.J.S.A. 2C:17-3, one committed in Camden County
on April 8, 2017, at the Trump National Golf Course, allegedly causing $32,000
in damages, the other on the Gloucester County Campus of Rowan University,
allegedly causing $15,341.83 in damages. The matters were consolidated and
addressed in Gloucester County. On January 29, 2018, the Criminal Division
manager rejected defendant's pre-trial intervention (PTI) application. See
N.J.S.A. 2C:43-12 and former R. 3:28.2 On February 16, 2018, the Gloucester
County Prosecutor's Office also rejected the application, for the reasons stated
in the PTI director's letter and for the following additional reasons: the
application of each statutory factor in relation to defendant, and the nature of
the charges. Defendant appeals, claiming that because her co-defendants in
Camden were admitted into PTI, her exclusion from the program establishes
2
"Following changes to Rule 3:28, however, the Guidelines were eliminated.
Now, many of their prescriptions -- with significant variations -- are contained
in Rules 3:28-1 to -10." State v. Johnson, 238 N.J. 119, 128 (App. Div. 2019).
The changes went into effect July 1, 2018, months after the argument in this
case.
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improper disparate treatment. She also contends the rejection was improperly
anchored in her political views, and that the prosecutor failed to take into
account her personal characteristics. For the reasons stated by Judge Robert P.
Becker, Jr., we affirm. We add the following comments.
In the first incident, defendant and two others spray painted foul language
on the Trump National Golf Course fairways and putting green. In the second
incident, while a student at Rowan, defendant spray painted slogans on a
veteran's memorial, portions of the pavement, and campus police vehicles.
Defendant, a transgender person, when interviewed during the PTI
application process disclosed a mental health and possible alcohol abuse history.
She also disclosed sexual victimization as a child and abusive relationships in
adolescence. Defendant's parents agreed that if she were admitted into PTI, they
would pay any restitution obligation immediately. Defendant is an
accomplished poet, first published at a young age.
The Criminal Division letter included the following explanation of the
discovery of defendant's involvement in the Rowan vandalism: "The tips
provided personal contact information and also social media that showed her
dislike for government (Burning American Flag)." It also noted that during the
course of the investigation, a Glassboro Police Department officer viewed a
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number of videos of defendant at poetry readings in which she objected to
Rowan's withdrawal of "funding from the office that supports the LGBT
community . . . . the fact that her friend was arrested during a protest . . . . [and
expressed] distaste for anything that represented the
government/establishment." It also concluded that the program was designed to
provide minimal supervision for those charged "with relatively minor
offenses[,]" and that the amount of damage in these prosecutions made the acts
"more than relatively minor offenses." After noting defendant was charged with
"separate planned acts of vandalism[,]" the letter referred to the "need for long-
term supervision and psychological and substance abuse treatment not available
through the PTI program." It concluded that defendant had neither established
"compelling reasons justifying admission nor . . . that a decision against
enrollment would be arbitrary and unreasonable[.]"
The prosecutor's letter of rejection "agree[d]" the application "should be
denied for substantially the same reasons [as the Criminal Division]," but
engaged in a detailed discussion of each statutory factor then in effect. The first
two factors the prosecutor weighed heavily against admission were the "separate
instances of third-degree criminal mischief in both Camden and Gloucester
Counties resulting in severe monetary loss," and the "facts of the case." In a
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somewhat puzzling comment, the prosecutor observed that defendant's
motivation was "unknown to the Prosecutor at this point . . . ." He also weighed
defendant's unique personal characteristics as moderately against admission
because it seemed "unlikely the program can be tailored to meet her needs."
Ultimately, the prosecutor concluded any benefit from admission into PTI would
be offset by harm to society in abandoning criminal prosecution.
Following oral argument on defendant's appeal to the Law Division, the
court issued a thorough written decision. After canvassing the pertinent statutes,
rules, and caselaw, the judge found defendant had failed to meet the heavy
burden of establishing by clear and convincing evidence that rejection from the
program constituted a patent and gross abuse of prosecutorial discretion. The
offenses were committed three months apart, caused substantial damage to
property, and the prosecutor properly assessed each of the seventeen statutory
factors. The judge opined defendant did not "show[] compelling reasons
justifying her admission and establishing that a decision against enrollment
would be arbitrary and unreasonable." He found "no clear error in judgment,"
nor that the failure to admit her into the program would subvert program goals.
Now on appeal, defendant argues:
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POINT I
THIS COURT SHOULD REVERSE THE DENIAL OF
[DEFENDANT]'S PTI APPLICATION, AND EITHER
ADMIT [DEFENDANT] INTO PTI, OR REMAND
FOR A FRESH LOOK.
1. The Gloucester County Prosecutor and
Criminal Division Manager failed to consider
that Camden County admitted [defendant]'s two
co-defendants into PTI for the same or similar
acts.
2. The prosecutor's denial of [defendant]'s
PTI application improperly relied on
disagreement with [defendant]'s political
viewpoint, in violation of the First Amendment.
3. The prosecutor's denial of [defendant]'s
PTI application failed to consider the cost to
society of using the criminal-justice system to
chill speech on matters of public concern.
4. The prosecutor's denial of [defendant]'s
PTI application failed to consider that
[defendant] was a victim of childhood sexual
assault.
I.
"In respect of the close relationship of the PTI program to the prosecutor's
charging authority, courts allow prosecutors wide latitude in deciding whom to
divert into the PTI program and whom to prosecute through a traditional trial."
State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236,
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246 (1995)). "Thus, the scope of review is severely limited[,]" in which we
"check only the ‘most egregious examples of injustice and unfairness. '" Ibid.
(citing Nwobu, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State
v. Kraft, 265 N.J. Super 106, 111 (App. Div. 1993)) (quoting State v. Leonardis,
73 N.J. 360, 384 (1977); State v. DeMarco, 107 N.J. 562, 566 (1987)).
Defendants "attempting to overcome a prosecutorial veto, must [‘]clearly
and convincingly establish that the prosecutor's refusal to sanction admission
into a PTI program was based on a patent and gross abuse of his discretion before
a court can suspend criminal proceedings under Rule 3:28 without prosecutorial
consent.'" Ibid. (internal quotations omitted) (quoting Nwobu, 139 N.J. at 246).
A prosecutor's abuse of discretion requires defendant show 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. 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
Pretrial Intervention.
[Id. at 83 (quoting State v. Bender, 80 N.J. 84, 93
(1979))].
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II.
In this case, defendant relies on State v. Maldonado, 314 N.J. Super. 539
(App. Div. 1998), as support for the position that those charged with the same
offenses, who have similar prior personal histories, must be treated on an equal
basis. Id. at 544-45. But, in contrast to this case, in Maldonado, the four
defendants were charged with precisely the same offenses. Here, defendant was
separately charged with an unrelated offense of third-degree criminal mischief
resulting in substantial monetary loss to a different victim.
III.
Defendant's contention that the denial was improper because of the
Criminal Division office's disagreement with defendant's political views has
some merit. It is important to society that the criminal justice system not become
an instrument for the suppression of First Amendment freedoms. The language
in the letter referring to the burning of the American flag is troubling. In a
different situation, the questionable comments regarding defendant's political
views might be more consequential. Every citizen has the right to free speech,
including burning the American flag as political expression. See Texas v.
Johnson, 491 U.S. 397, 418-20 (1989). The issue here, however, is whether that
impermissible outlook was mirrored by the prosecutor's rejection, and formed a
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significant element in the denial of defendant's application. We cannot agree
that it did.
The prosecutor did by reference adopt the director's letter, however, the
prosecutor's analysis of the statutory factors made no reference to defendant's
political beliefs. He instead referred to "[t]he existence of personal problems
and character traits which may be related to the . . . crime." The reference is to
defendant's past history and personal problems, not her political views.
Not unsurprisingly, the prosecutor weighed most heavily the fact
defendant was involved in two separate offenses causing substantial damage.
This was not a continuing offense, such as a bookkeeper's theft of her employer's
funds over time—this was two distinct and separate incidents.
The record also does not support a conclusion that defendant's First
Amendment rights were violated by her conviction for criminal mischief.
"[S]peech related to matters of public concern 'occupies the highest rung of the
hierarchy of First Amendment values [.]'" Rocci v. Ecole Secondaire
Macdonald-Cartier, 165 N.J. 149, 156 (2000) (internal quotations omitted)
(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759
(1985). "Such speech ‘requires maximum protection.'" Ibid. (quoting Sisler v.
Gannett, Co., Inc., 104 N.J. 256, 266 (1986)). If a statute "relate[s] to the
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suppression of free expression, [the court] must decide if the statute[] [is]
content neutral or content based to determine the level of scrutiny . . . [to] apply
under the First Amendment." State v. Vawter, 136 N.J. 56, 68 (1994).
"The principal inquiry in determining content-
neutrality . . . is whether the government has adopted a
regulation of speech because of disagreement with the
message it conveys." Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). If a regulation is content
neutral, "reasonable time, place, or manner restrictions"
are appropriate. Clark v. Cmty. for Creative Non–
Violence, 468 U.S. 288, 293 (1984). Time, place, or
manner regulations are reasonable if they are "narrowly
tailored to serve a significant governmental interest,
and [ ] they leave open ample alternative channels for
communication . . . . Ibid.
[Vawter, 136 N.J. at 68 (alteration in original)].
Nonetheless, state governments may regulate graffiti, for example, to
prevent vandalism, although regulatory laws cannot be so narrow as to burden
speech more than necessary to prevent property damage. See Vincenty v.
Bloomberg, 476 F.3d 74, 90 (2d Cir. 2007); see also AMERICAN BAR
ASSOCIATION Understanding the First Amend. Limitations on Gov't Reg. of
Artwork, (Jan. 2, 2017),
https://www.americanbar.org/groups/state_local_government/publications/stat
e_local_law_news/2016-
A-4693-18T4
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17/winter/understanding_first_amendment_limitations_government_regulation
_artwork/.
The definition of criminal mischief is content neutral. It does not limit
speech. The State has a legitimate interest in suppressing graffiti where the
result is property damage as opposed to mere expression of ideas. The
prosecution here was certainly content neutral. Defendant's rejection from PTI
because of her involvement in two events, not one, also appears content neutral.
IV.
Finally, defendant contends that the sexual abuse she suffered earlier in
life presents a compelling reason for admission. Unfortunately, that factor is
not included in the statutory scheme, nor have we found any case in which that
history created a compelling reason for admission. Defendant cites State v.
Briggs, 349 N.J. Super. 496 (App. Div. 2002), in support of the argument, but
the case involves a murder committed by a spouse who had been physically and
mentally abused by the victim for twenty years. The expert opinions found that
defendant suffered from post-traumatic stress disorder. The record here does
not include evidence connecting the trauma this defendant suffered to the
criminal conduct.
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Therefore, we agree with Judge Becker that defendant failed to meet her
burden of proving by clear and convincing evidence that the prosecutor's
rejection of her application was a patent and gross abuse of discretion.
Affirmed.
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