State of New Jersey v. J.c-m. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0676-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.C-M.,1
Defendant-Appellant.
Submitted March 20, 2024 – Decided July 2, 2024
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 21-06-1438.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Alyssa Aiello, Assistant Deputy Public
Defender, of counsel and on the brief).
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
1
We use initials to protect defendant's identity pursuant to Rule 1:38-3(c)(5).
Defendant appeals from the September 1, 2022 order affirming the
prosecutor's denial of entry into the Pretrial Intervention Program (PTI).
Perceiving no abuse of discretion, we affirm.
In December 2019, defendant was pulled over by law enforcement for a
traffic violation. When asked for her credentials, defendant advised she did not
have a valid driver's license. During the motor vehicle stop, an officer observed
a gun case on the backseat of the car. Defendant told police she found the gun
case when she cleaned out her father's storage unit. Defendant opened the case
and the police officer saw it contained ammunition.
Defendant first denied to the officer that she had a gun in the car, but
during a consensual search, the officer found a loaded handgun in the center
console of the front seat. Defendant told the officer the gun belonged to her and
that she had removed the gun from the box and put it into the console after being
pulled over. Defendant explained she purchased the gun "off the street" a year
ago for protection and kept it in a storage unit. Defendant told the officer she
had removed the gun from the storage unit earlier that night and put the gun in
the car with the intention of killing herself.
Defendant said during an argument with her child's father earlier that
night, he told her that "she would be better off dead." Defendant showed the
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officer text messages exchanged with her child's father, where she "stated she
was going to kill herself" and included a picture of herself holding the gun to
her temple. Defendant was arrested and transported to the hospital for a crisis
evaluation. She remained in a crisis center for seven days.
During a behavioral assessment completed approximately two weeks after
these events, defendant reported she had no suicidal ideation. She declined a
psychiatric evaluation, individual therapy, and medication and said she would
attend group therapy as a "walk-in" when able to do so. Defendant advised she
was only attending the assessment because the Department of Child Protection
and Permanency required her to do so.
In June 2021, defendant was charged in an indictment with second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and fourth-degree
possession of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1). The State's
investigation revealed defendant did not apply for and was not issued a permit
to carry or purchase a handgun, or a Firearms Purchaser Identification Card.
The serial number on the gun was not registered.
In defendant's subsequent application for PTI, she stated that on the day
of her arrest, "she was facing an overwhelming mental health crisis . . . that she
has since sought treatment for, and she made great strides in her life to provide
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for her young daughter." Defendant asserted that until she took the gun out of
its case, she was lawfully transporting it even though she did not lawfully
possess it.
The State rejected defendant's application. The State asserted that
"[d]efendant appears to have been in the midst of a personal crisis and after her
arrest did undergo treatment and therapy as directed." However, the State
concluded:
Defendant has provided nothing regarding her
legally purchasing or possessing any firearm.
Defendant has submitted no documentation that she
lawfully acquired the firearm at issue here. The State
is not convinced that defendant's submission constitutes
something extraordinary and compelling or
idiosyncratic in her background, related to the weapons
charge. The State objects to defendant's application on
this basis. It is the State's position that defendant has
not overcome the presumption of ineligibility based on
the second-degree unlawful possession of a weapon
charge.
Defendant appealed the denial of her PTI application, arguing it
constituted a patent and gross abuse of discretion because the State did not
evaluate the factors as required under N.J.S.A. 2C:43-12(e), and ignored
defendant's lack of culpable conduct and "otherwise amenability to PTI."
After oral argument, the court remanded the matter to the State to consider
defendant's application under the required statutory factors, finding the State
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abused its prosecutorial discretion in not considering defendant's entire
application. The court found the State did not consider defendant's "substantial
mental health history" and that defendant "did overcome at least the initial
burden of . . . extraordinary and compelling circumstances."
Thereafter, the State submitted an eleven-page letter brief, asserting it
considered defendant's PTI application and accompanying documents and
concluded it was "not convinced defendant's submissions provided
extraordinary and compelling circumstances that would overcome the
presumption of PTI ineligibility."
The State determined the following factors under N.J.S.A. 2C:43-12(e)
weighed against defendant's admission into PTI: the nature of second-degree
and fourth-degree unlawful possession offenses; her initial denial of a gun being
in the car; the lack of documentation establishing defendant lawfully acquired
or was lawfully permitted to have possession of the gun; the availability of
services in the criminal justice system that defendant might require; the lack of
indices "that the causes of defendant's criminal behavior can be controlled by
proper treatment"; that the "crime [was] not related to a condition or situation
conducive to change through participation in PTI"; the needs and interests of
society to deter unlawful acquisition and possession of handguns; prosecution
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would not exacerbate the social problem of "[e]motional abuse by an ex-
boyfriend and the mental health issues resulting" from it, because "[t]he issue of
defendant's possession of the handgun and carrying the handgun is independent
of the communications of [her] ex-boyfriend"; "the presumption of incarceration
and mandatory minimum period of incarceration" reflect the seriousness of the
second-degree offense and the need to prosecute. The State asserted it was "not
convinced . . . defendant was lawfully transport[ing] her firearm," and that
possession of an unregistered firearm "is not related to a condition or situation
conducive to change through participation in PTI."
The State determined the following factors under N.J.S.A. 2C:43-12(e)
weighed in favor of defendant's admission into PTI: defendant's age of nineteen
at the time of the offense; the lack of a pattern of anti-social behavior, even
though defendant was previously charged with fourth-degree aggravated assault
on law enforcement and fourth-degree unlawful possession of weapons offenses,
because the disposition of those charges were unknown; defendant "ha[d] no
history of penal or criminal violations" and did not "pose a substantial danger to
others"; defendant was not charged with possession for an unlawful purpose and
there was no evidence that she intended to harm anyone else; and "defendant
was the only individual charged under th[e] indictment." The State also
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determined that "society," as it relates to defendant's ability to support her child
and obtain employment, might benefit from her admission into PTI, but this
factor did not overcome the weight of the other factors.
The State determined that defendant's desire to forego prosecution, the
fact that this was a victimless offense, and the lack of evidence of any "prior
history of physical violence towards others" or defendant's involvement in
organized crime were not applicable factors. The State asserted it was "not
convinced defendant's crime . . . arose from any personal problems or character
traits," and that "[t]he gravamen . . . [wa]s defendant's possession of an
unlawfully acquired handgun."
The State concluded that defendant was "not an appropriate candidate for
admission to PTI" and denied her application. Defendant again appealed the
denial.
After hearing arguments for a second time, the court requested the parties
brief the "narrow issue" of "whether a person needs to lawfully possess [a]
weapon in order to transport it lawfully" under N.J.S.A. 2C:39-5. Following the
submission of briefs and additional arguments, the court stated:
[I]t's clear to this [c]ourt now that that is not an element
of the offense under [N.J.S.A.] 2C:39-5, that it is
possible that someone could not have lawfully acquired
the weapon, but still lawfully could carry it under
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[N.J.S.A. 2C:]39:5, provided that they're doing it in
compliance with [N.J.S.A.] 2C:39-6(e) . . . either being
at those certain locations that are detailed in the statute
or carrying it between those certain locations if they
also, in addition, comply with the requirements under
[N.J.S.A.] 2C:39-6(g).
So, it seems to this [c]ourt that the [S]tate's
reliance on this issue that she did not lawfully acquire
the weapon . . . when it wasn't and isn't an element for
the offense of [N.J.S.A.] 2C:39-5, which is what she is
charged with here[,] is an error and that it was an
improper factor then for the [S]tate to consider that in
its decision whether she should come into the PTI
program.
Now, what I am not finding, however, is that it is
a patent and gross abuse of discretion. I don't find that
. . . defendant has shown by clear and convincing
evidence that the goals of the program would be
undermined. Certainly[,] this defendant has already
. . . undergone certain therapeutic services based on the
submission, even without the supervision of PTI. It
does also seem that she has successfully undergone . . .
therapeutic services. There certainly is . . . some harm
that is provided to or suffered by all defendants by
criminal prosecutions. This defendant has not shown
this [c]ourt that she would suffer any sort of unique
harm, particularly to . . . her circumstances. There's
nothing extraordinary about the harm that would come
to her if she was to be prosecuted. These aren't
particularly complex charges that would . . . overburden
the [c]ourt and these are very serious charges, . . . which
potentially causes [a] significant threat to the public.
The trial court denied defendant's appeal in a September 1, 2022 order.
A-0676-22
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Several days later, defendant pleaded guilty to one count of fourth-degree
possession of hollow nose bullets. The court sentenced defendant to a three-
year term of probation and ordered her to undergo a substance abuse evaluation
and cooperate with the recommended treatment.
On appeal, defendant raises the following sole argument for our
consideration:
THE PROSECUTOR'S DENIAL OF PTI WAS A
PATENT AND GROSS ABUSE OF DISCRETION;
ACCORDINGLY, THE MATTER SHOULD BE
REMANDED TO THE TRIAL COURT WITH
INSTRUCTIONS TO ADMIT [DEFENDANT] INTO
PTI OVER THE PROSECUTOR'S OBJECTION.
Our review of a PTI rejection "is severely limited" and "serves to check
only the 'most egregious examples of injustice and unfairness.'" State v. Negran,
178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).
"[T]he prosecutor's decision to accept or reject a defendant's PTI
application is entitled to a great deal of deference." State v. Roseman, 221 N.J.
611, 624 (2015). "[T]o overturn a prosecutor's decision to exclude a defendant
from the program, the defendant must '"clearly and convincingly"' show that the
decision was a '"patent and gross abuse of . . . discretion."'" State v. K.S., 220
N.J. 190, 200 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
A-0676-22
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"Issues concerning the propriety of the prosecutor's consideration of a
particular [PTI] factor are akin to 'questions of law'" and must be reviewed de
novo. State v. Denman, 449 N.J. Super. 369, 375-76 (App. Div. 2017)
(alteration in original) (quoting State v. Maddocks, 80 N.J. 98, 104-05 (1979)).
"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)).
"[A]cceptance into PTI is dependent upon . . . consent of the prosecutor.
The assessment of a defendant's suitability for PTI must be conducted under the
Guidelines for PTI provided in Rule 3:28, along with consideration of factors
listed in N.J.S.A. 2C:43-12(e)." Ibid. (citation reformatted). "Additionally, a
PTI determination requires that the prosecutor make an individualized
assessment of the defendant considering his or her '"amenability to correction"
and potential "responsiveness to rehabilitation."'" Id. at 621-22 (quoting State
v. Watkins, 193 N.J. 507, 520 (2008)).
Under Rule 3:28-1(d),
[P]ersons who are not ineligible for pretrial
intervention under paragraph (c) shall be ineligible for
pretrial intervention without prosecutor consent to
consideration of the application:
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(1) Certain Crimes. A person who is charged
with a crime, or crimes, for which there is a
presumption of incarceration or a mandatory
minimum period of parole ineligibility.
Since a second-degree offense falls into this category, there is a statutory
presumption against acceptance into PTI. Roseman, 221 N.J. at 622. "To rebut
the presumption against admission . . . , applicants shall include with their
application for admission a statement of the extraordinary and compelling
circumstances that justify consideration of the application notwithstanding the
presumption against admission." R. 3:28-1(e)(3).
When considering a PTI application, prosecutors are required to consider
the factors enumerated in N.J.S.A. 2C:43-12(e). For a trial court to overcome
prosecutorial discretion owed to the prosecutor, the circumstances must
"'"clearly and convincingly establish that the prosecutor's refusal to sanction
admission into the program was based on a patent and gross abuse of . . .
discretion."'" Roseman, 221 N.J. at 624-25 (quoting Wallace, 146 N.J. at 582).
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 judgement. 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
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will clearly subvert the goals underlying Pretrial
Intervention.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation
omitted).]
"The question is not whether [a court would] agree or disagree 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.
Governed by these principles, we discern no basis to reverse the
challenged order denying defendant's PTI appeal.
Defendant was charged with a second-degree crime which carries a
presumption of imprisonment, N.J.S.A. 2C:44-1(d), and is subject to a
mandatory minimum period of parole ineligibility, N.J.S.A. 2C:43-6(c).
Therefore, her acceptance into PTI was dependent on the State's consent.
The prosecutor thoroughly analyzed each statutory factor and determined
defendant did not meet her burden to overcome the presumption of denial into
PTI. We are unpersuaded by defendant's contention the prosecutor improperly
weighed the applicable aggravating and mitigating factors. The State did not
solely rely on the unlawful acquisition of the gun. We see nothing in this
exercise of prosecutorial discretion that approaches an egregious injustice or
unfairness as to warrant our intervention. See Negran, 178 N.J. at 82.
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Furthermore, after several submissions of briefs and rounds of oral
arguments, the trial court determined the prosecutor's determination was not a
"patent and gross abuse of discretion" that warranted reversal. We see no reason
to disturb that decision.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack "sufficient merit to warrant discussion." R.
2:11-3(e)(2).
Affirmed.
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