STATE OF NEW JERSEY VS. JUAN A. FERRER, JR. (15-03-0210, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2474-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JUAN A. FERRER, JR.,
Defendant-Appellant.
________________________________
Argued July 18, 2017 – Decided August 21, 2017
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 15-03-0210.
Jordan G. Zeitz argued the cause for
appellant.
Jennifer B. Paszkiewicz, Assistant
Prosecutor, argued the cause for respondent
(Scott A. Coffina, Burlington County
Prosecutor, attorney; Ms. Paszkiewicz, of
counsel and on the brief; Linda Rinaldi, Legal
Assistant, on the brief).
PER CURIAM
Defendant Juan A. Ferrer, Jr. appeals the April 29, 2015
denial of his application for pretrial intervention (PTI). We
affirm.
I.
The police report alleged the following facts. On October
5, 2014, a resident reported to police dispatch that his Palmyra
apartment was being burglarized. The resident was in Philadelphia
but able to view on his cellphone the video from his home
surveillance system. He reported that three suspects broke into
his residence and that at least one of the suspects appeared to
be armed and pointed a gun at his dog.
Upon arriving at approximately 4:57 a.m., Sergeant Timothy
Leusner and Patrolman Ludlow observed individuals moving around
and using flashlights inside the residence. The officers requested
backup to set up a perimeter. At 5:05 a.m., dispatch advised that
suspects had reportedly exited the rear of the residence and fled.
But, as the officers approached the rear of the residence, the
back door opened and a flashlight shined into Leusner's face. He
ordered the suspect to show his hands. The suspect instead slammed
the door shut.
Two suspects attempted to exit through second- and third-
story windows but retreated inside upon observing the police
perimeter. The pair later attempted to flee via the front door,
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but officers apprehended them. One suspect was defendant. The
second suspect identified himself as Joseph R. Montez, but was
found to be co-defendant Joseph R. Rios. Both defendants denied
being accompanied by a third perpetrator and no additional suspect
was discovered.
Inside the back door, police later recovered a bag containing
items from the residence, including watches, jewelry, and other
property. The officers also noticed a door and door jamb were
damaged, and the home security system had been ripped from the
wall and had its wires severed. A vehicle registered to co-
defendant Rios was located on the street near the residence.
Defendant and Rios were charged with third-degree burglary,
N.J.S.A 2C:18-2(a)(1); third-degree attempted theft by unlawful
taking, N.J.S.A. 2C:5-1(a) and N.J.S.A. 2C:20-3(a); third-degree
resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); and fourth-
degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). Rios was also
charged with third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b)(4).
Defendant applied for admission to PTI. An April 29, 2015
letter stated that the Superior Court's Criminal Division Manager
3 A-2474-15T2
("CDM") recommended against PTI.1 The CDM found "the crime is
such that the public need for prosecution outweighs the value of
supervisory treatment," citing N.J.S.A. 2C:43-12(e)(7), (14), and
(17). The CDM explained that "[b]urglary of a home is a very
serious offense," because "[t]here is always a great potential for
violence if the perpetrator is interrupted in the middle of the
crime," and because of the "fear and anxiety it causes its victims
and society in general." The CDM noted that "[t]he sanctity and
security of a person's home has been violated" and that the
burglars had damaged the resident's property. The CDM stated
"[s]uch a crime is worthy of vigorous prosecution" in order "to
deter this defendant and others."
The CDM further noted the victim "completely opposed" PTI,
citing N.J.S.A. 2C:43-12(e)(4). Finally, the CDM found that as
"defendant [had] not presented any compelling reasons which may
justify his admission" into PTI, "the needs and interests of
society" would be best served by continued presentation. See
N.J.S.A. 2C:43-12(e)(7), (15).
On May 6, 2015, defendant appealed "the denial" of his
application. The prosecutor filed a brief stating "[t]he
1
The letter was signed by a case supervisor/parole officer and a
team leader. The prosecutor refers to this as the letter from the
"PTI director."
4 A-2474-15T2
Prosecutor's Office did not separately reject defendant; however,
it is the State's position the rejection of the PTI Director for
the Criminal Division was appropriate, and must be reviewed
pursuant to an abuse of discretion standard."2
After reviewing submitted papers and hearing oral arguments,
the trial court denied defendant's appeal on June 8, 2015. The
2
Defendant does not challenge this procedure. However, the
procedure improperly diverged from the three-step process required
by Rule 3:28(h): (1) "The criminal division manager shall complete
the evaluation [of the defendant's PTI application] and make a
recommendation," (2) "[t]he prosecutor shall complete a review of
the application and inform the court and defendant [of the
prosecutor's decision and reasoning] within fourteen days of the
receipt of the criminal division manager's recommendation," and
(3) the defendant may appeal by filing a motion in the trial court
"within ten days after the [prosecutor's] rejection." Ibid.
(emphasis added). The CDM's letter mistakenly said that
defendant's motion to the trial court "must be filed within ten
(10) days of the date of this letter."
Moreover, the prosecutor mistakenly waited to evaluate
defendant's application until after the defendant had filed a
motion with the trial court. "The language in Rule 3:28(h) is
both clear and emphatic. The prosecutor must independently
evaluate whether a defendant should be admitted into PTI." State
v. Rizzitello, 447 N.J. Super. 301, 311 (App. Div. 2016). "The
[prosecutor]'s failure to perform this important, legally required
evaluation is unacceptable." Ibid. As explained further infra,
"policy determinations, such as which offenses to aggressively
prosecute, fall within the domain of the prosecutor, not the
judiciary" or judicial employees such as the CDM. State v. Waters,
439 N.J. Super. 215, 232 (App. Div. 2015) (quoting State v. Kraft,
265 N.J. Super. 106, 116 (App. Div. 1993)). "Notwithstanding this
oversight, [because] the record before us contains sufficient
facts" and the prosecutor adopted the CDM's rationale, we can
decide the challenges defendant does raise. Rizzitello, supra,
447 N.J. Super. at 311; see State v. Nwobu, 139 N.J. 236, 250
(1995) (holding a "prosecutor [may] adopt the PTI director's
reasoning as his own").
5 A-2474-15T2
court found all appropriate factors were considered and no
inappropriate factors were considered.
On October 6, 2015, defendant pleaded guilty to third-degree
burglary and fourth-degree resisting arrest by flight. He was
sentenced to two years' probation. Defendant was also ordered to
pay $3000 in restitution to his victims.
Defendant appeals the denial of PTI. See R. 3:28(g). He
argues:
THE LAW DIVISION SHOULD HAVE ADMITTED
APPELLANT INTO THE PRETRIAL INTERVENTION
("PTI") PROGRAM BECAUSE APPELLANT WAS A FIRST-
TIME OFFENDER WHO WAS NOT CHARGED WITH ANY
CRIMES CREATING A PRESUMPTION AGAINST SUCH
ADMISSION AND BECAUSE THE CRIMINAL DIVISION
MANAGER'S REASONS FOR REJECTING HIS PTI
APPLICATION (WHICH WERE LATER ADOPTED BY THE
STATE) WERE SPECULATIVE, LADEN WITH
GENERALITIES, BARE ON SUPPORTING FACTS, OVER
INCLUSIVE, AND CONTRARY TO WELL-ESTABLISHED
LAW.
II.
The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule
3:28, and the Guidelines for Operation of Pretrial Intervention
in New Jersey, reprinted after Rule 3:28 in Pressler & Verniero,
Current N.J. Court Rules (2017) [hereinafter Guidelines].
"N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be
considered by the criminal division manager and prosecutor in
determining admission into [PTI]." State v. K.S., 220 N.J. 190,
6 A-2474-15T2
197 (2015). Courts must "presume that a prosecutor considered all
relevant factors, absent a demonstration by the defendant to the
contrary." State v. Wallace, 146 N.J. 576, 584 (1996).
"Deciding whether to permit diversion to PTI 'is a
quintessentially prosecutorial function.'" Waters, supra, 439
N.J. Super. at 225 (quoting Wallace, supra, 146 N.J. at 582).
"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." Ibid. (quoting Nwobu, supra, 139 N.J. at
246). "Accordingly, 'prosecutors are granted broad discretion to
determine if a defendant should be diverted' to PTI instead of
being prosecuted." Ibid. (quoting K.S., supra, 220 N.J. at 199).
"Thus, the scope of review is severely limited." Ibid.
(quoting State v. Negran, 178 N.J. 73, 82 (2003)). "Reviewing
courts must accord the prosecutor '"extreme deference."'" Ibid.(quoting Nwobu, supra, 139 N.J. at 246). "[I]nterference by
reviewing courts is reserved for those cases where needed 'to
check . . . the "most egregious examples of injustice and
unfairness."'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div.
2014) (quoting Negran, supra, 178 N.J. at 82), certif. denied, 222
N.J. 18 (2015).
7 A-2474-15T2
We apply the same standard as the trial court, and review its
decision de novo. Waters, supra, 439 N.J. Super. at 226. We must
hew to that standard of review.
"In order to overturn a prosecutor's rejection, a defendant
must 'clearly and convincingly establish that the prosecutor's
decision constitutes a patent and gross abuse of discretion.'"
Ibid. (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).
"Ordinarily an abuse of discretion will be
manifest if defendant can show that a
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."
[Wallace, supra, 146 N.J. at 583 (quoting
State v. Bender, 80 N.J. 84, 93 (1979)).]
III.
The prosecutor ultimately adopted the CDM's reasoning, which
recommended rejection primarily on the nature of the offense of
burglary and the victim's opposition to admitting defendant into
the program. Defendant claims the CDM improperly established a
per se rule of exclusion when referencing the "potential for
violence" created by the crime of burglary. Here, by contrast,
defendant has not demonstrated the CDM engaged in a categorical
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denial. Rather, the CDM's letter indicated a review of the nature
of the offense, the desires of the victim, and the defendant's
"background and circumstances." Cf. State v. Caliguiri, 158 N.J.
28, 33 (1999) (finding an improper categorical rejection of PTI
where "the prosecutor relied on a purported legislative belief
that drug offenses near a school were 'deserving of enhanced
punishment' and 'too serious for Pre-Trial Intervention'").3
Moreover, the CDM could properly emphasize the seriousness
of defendant's crime. In Kraft, supra, the prosecutor similarly
denied PTI based on "the nature of the offense" of third-degree
burglary of an apartment. 265 N.J. Super. at 10. The prosecutor
found that "'a burglary of a dwelling is always a most serious
offense'" for the same reasons given by the CDM here. Id. at 116.
We found "the Prosecutor's reasons for denying defendant
admittance into PTI were entirely unassailable." Id. at 117. We
explained:
It cannot reasonably be disputed that the
burglary of a residence is a serious offense.
Nor can it be earnestly debated that such an
offense accounts for a legitimate source of
fear and anxiety on the part of homeowners.
Undoubtedly, these already existent and
3
Defendant argues Caliguiri, supra, established a presumption in
favor of PTI for third-degree offenses. Rather, Caliguiri merely
ruled that where there is a presumption against PTI, "the weight
of the evidence to rebut the presumption against PTI [for a third-
degree offense] need not be as great as if the defendant had been
charged with a second-degree offense." 158 N.J. at 44.
9 A-2474-15T2
justified fears would only be heightened if
the public were to detect a lack of vigorous
prosecution, whether real or perceived,
relating to such offenses. In light of these
factors, the Prosecutor's conclusion that the
public interest would best be served in this
matter by prosecution rather than by diversion
can hardly be faulted.
[Id. at 116.]
In Kraft, supra, the trial court overturned the prosecutor's
decision because "'nobody was home, it's not that he was in the
house threatening somebody or there was a potential for violence.'"
Id. at 117 (emphasis omitted). We reversed, reasoning:
While it is true that there may have been
no one present in the particular dwelling that
defendant burglarized, the record indicates
that this residence was part of an apartment
complex and thus, was surrounded by
neighboring units. . . . Under such
circumstances, there clearly existed a
significant potential for violence, which
could easily have been realized if one of the
victim's neighbors had interrupted the
perpetrators in the middle of their crime.
Thus, not only did the trial court err in
attempting to downplay the severity of the
particular offense involved here, its
rationale for doing so was deficient.
[Ibid.]
Here, defendant similarly burglarized an apartment, raising
the possibility occupants in neighboring apartments "could hear,
and possibly even see" the burglars, just as the police later saw
the burglars from outside the apartment. Ibid. Thus, there
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clearly existed a potential for violence. Indeed, one burglar
appeared to be armed with a handgun gun which he pointed at the
resident's dog. Moreover, rather than comply with the officers'
orders to surrender peaceably, the burglars engaged in a standoff
before running outside of the apartment.
Defendant notes the CDM stated that "defendant has not
presented any compelling reasons which may justify his admission
into [PTI]." Defendant asserts this was a reference to Guideline
3(i), which provides PTI is not ordinarily granted for certain
categories of offenses, creates a presumption against admission,
and requires an applicant to show "compelling reasons justifying
the applicant's admission." However, there is no indication the
CDM, the prosecutor, or the trial court applied a presumption
against admission. In any event, "[b]ecause burglary of a home
is similar to robbery, in the sense that it raises the public's
concern regarding the threat of personal safety, it is a crime
that implicates Guideline 3(i)." State v. Baynes, 148 N.J. 434,
446 (1997) (citing Kraft, supra, 265 N.J. Super. at 117); see
Guideline 3(i) (providing PTI should not ordinarily be granted for
crimes "deliberately committed with violence or threat of
violence"). That is particularly true here, as one of the robbers
was carrying and pointing a gun. As noted by the trial court,
this burglary was "on the more extreme end factually."
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Defendant further asserts the CDM placed undue weight on the
victim's desires. However, N.J.S.A. 2C:43-12(e)(4) requires
prosecutors and CDMs to consider "[t]he desire of the . . . victim
to forego prosecution," and the victim's opposition to PTI "is an
appropriate factor to consider under Guideline 3 and N.J.S.A.
2C:43-12(e)(4)," State v. Imbriani, 291 N.J. Super. 171, 180 (App.
Div. 1996). Given that the robbers broke into the victim's home,
pointed a gun at his dog, attempted to steal his possessions, and
damaged his apartment, the victim had valid reasons to oppose PTI,
which were properly considered and weighed. In any event, the
Legislature and Rule 3:28 "leave the weighing process to the
prosecutor or program director." Wallace, supra, 146 N.J. at 585-
86; accord Waters, supra, 439 N.J. Super. at 234.
Defendant cites his age, education, children and motorcycle
injuries, and claims he was under the influence leading up to the
burglary, but those factors did not require PTI. The CDM and
prosecutor are presumed to have considered those factors. Wallace,
supra, 146 N.J. at 584. Indeed, the rejection letter stated that
"defendant's application for [PTI] has been reviewed" and the
"background and circumstances provided by" defendant have been
"taken into consideration." See id. at 588.
We agree with the trial court that defendant did not show the
denial of PTI (1) "was not premised upon a consideration of all
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relevant factors"; (2) "was based upon a consideration of
irrelevant or inappropriate factors"; or (3) "amounted to a clear
error in judgment." Id. at 583. Defendant certainly did not
establish a "patent and gross abuse of discretion." Ibid.Affirmed.
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