STATE OF NEW JERSEY VS. YUJIE GAOÂ (14-10-0483, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3173-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YUJIE GAO,
Defendant-Appellant.
_________________________
Submitted May 24, 2017 – Decided July 18, 2017
Before Judges Fuentes and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Accusation No. 14-10-0483.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lauren S. Michaels, Assistant
Deputy Public Defender, of counsel and on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Yujie Gao appeals from the October 29, 2015 Law
Division order, which denied his appeal of the rejection of his
application for admission into the pre-trial intervention (PTI)
program. We affirm.
Defendant was charged with fourth-degree criminal sexual
contact, N.J.S.A. 2C:14-3(b). The charges stemmed from an incident
on a public bus where defendant sat next to a female passenger,
who was asleep, and groped her breast and buttocks. The victim
awoke when she felt a hand on her right breast and a hand on her
buttock. She jumped up and screamed, and asked for the bus to be
stopped. Another passenger moved defendant to the back of the
bus. The bus driver stopped the bus and the New Jersey State
Police were called.
A State Trooper arrived at the scene and saw that the victim
appeared visibly disturbed and was crying and gasping for breath
between sobs. The Trooper entered the bus and saw that defendant's
pants button was unclasped and his zipper was lowered. Two
passengers told the Trooper that after hearing the victim scream,
they saw defendant masturbating and attempting to cover his penis
with his jacket. Defendant told the Trooper that his elbow touched
the victim's elbow and she seemed like a nice girl, so he decided
to give her a massage, but stopped when she began screaming.
Defendant admitted that he touched his penis during the incident
and touched the victim under her pants and shirt.
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Defendant legally emigrated from China in 1997. He has no
criminal history or substance abuse issues, and dedicated himself
to raising his son while his wife continued living and working in
China to support the family. He has two Masters Degrees, one in
Engineering Mechanics, and another in Computer Science and
Engineering, and had a job offer to work as a Clinical Programmer,
but the start date was delayed due to the pending charge.
Defendant applied for admission into the PTI program. The
Criminal Division manager (CCM) did not recommended defendant's
admission, finding as follows:
The nature of the offense is of such
severity that admission into PTI would
deprecate the seriousness of the offense
(Guideline 3(i)). PTI is a short-term program
intended for victimless crimes (Guideline 1)
. . . .
The defendant committed the offense while
on a public bus. He took advantage of a young
woman sleeping whose life could be
significantly affected by the defendant's
actions. The offense is a violation of an
individual's body. It is felt defendant's
admission into the program would not
significantly protect the needs of the
victim[] and society (Guideline 3(7)).
It appears the defendant is in need of mental
health counseling. The defendant advised
[State Troopers] he was "messaging" the victim
because they touched elbows and the victim
"seemed like a nice girl." the defendant's
actions cannot be excused. According to PTI
Guideline 3(i) there must be a balance struck
between a defendant's amenability to
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correction, responsiveness to rehabilitation
and the nature of the offense. At the time
of the defendant's PTI application, he did not
take responsibility for his actions and
indicated he did not commit the offense. CCM
believes the defendant requires more intense
supervision than is provided by the [PTI]
program.
The CDM recognized favorable factors, including that defendant was
charged with a fourth-degree offense, had a minimal court history,
and a conviction could prohibit him from obtaining employment.
However, the CDM rejected defendant's application "based on the
seriousness of the offense, the need to protect society, and the
public need for prosecution[.]"
The prosecutor agreed with the CCM's reasons and incorporated
them in her reasons for rejecting defendant's admission into the
PTI program. The prosecutor also considered all relevant factors
set forth in N.J.S.A. 2C:43-12, stating as follows:
The State has evaluated this case from all
aspects noted in the PTI guidelines and
statutes. Among the factors which bear upon
the Prosecutor's decision is the fact that
this is a crime that involves a victim of a
sexual assault. As noted in PTI Guideline
1(c) and N.J.S.A. 2C:43-12(a)(3), the purpose
of [PTI] is to "provide a mechanism for
permitting the least burdensome form of
prosecution possible for defendant's charged
with 'victimless' offenses." Defendant's
actions clearly do not constitute a victimless
offense. The victim in this case has been in
contact with the State on numerous occasions.
It is her sincere desire for this case to be
handled through the traditional means of
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prosecution. The needs and interests of the
victim and society in prosecuting this case
weigh in favor of rejecting this defendant
from the PTI program. N.J.S.A. 2C:43-
12(e)(7).
The nature of the offense and the facts
of the case, as set forth above, weigh against
admission into the PTI program. In this case,
the value of supervisory treatment is
outweighed by the public need for prosecution.
N.J.S.A. 2C:43-12(e)(1), (2) and (14).
Defendant appealed the prosecutor's decision. While the
appeal was pending, the CDM issued an addendum, stating that
documents she received from defendant's attorney after the
rejection of defendant's PTI application did not change the initial
recommendation. In an oral opinion, Judge Diane Pincus denied
defendant's appeal, finding there was no abuse of discretion or
misapplication of the law, and no compelling reason warranting
admission into PTI.
Defendant then pled guilty to fourth-degree criminal sexual
contact in exchange for the State's agreement to recommend a one-
year term of non-custodial probation. The trial court sentenced
defendant to a one-year term of probation, and imposed the
appropriate assessments, fines, and penalties.
On appeal, defendant raises the following contention:
POINT I
THE PROSECUTOR'S REJECTION OF
DEFENDANT'S ADMISSION INTO [PTI] IS A
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PATENT AND GROSS ABUSE OF DISCRETION THAT
CLEARLY SUBVERTED THE GOALS UNDERLYING
PTI, WHICH MUST BE CORRECTED BY THIS
COURT.
We have considered this contention in light of the record and
applicable legal principles and conclude it is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by Judge Pincus
in her comprehensive and cogent oral opinion. However, we make
the following comments.
We have held that
PTI is a diversionary program designed
to augment the options of prosecutors in
disposing of criminal matters . . . [and]
provide applicants with opportunities to avoid
ordinary prosecution by receiving early
rehabilitative services or supervision, when
such services or supervision can reasonably
be expected to deter future criminal behavior
by an applicant.
[State v. Motley, 369 N.J. Super. 314, 320
(App. Div. 2004) (quoting State v. Brooks, 175
N.J. 215, 223 (2002)).]
To gain admission, a defendant must obtain a positive
recommendation from the PTI director and the consent of the
prosecutor. Ibid.
In making a PTI determination, the prosecutor must evaluate
the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28
Guidelines. State v. Negran, 178 N.J. 73, 80-81 (2003). As part
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of that determination, the prosecutor must assess a defendant's
"amenability to correction," potential "responsiveness to
rehabilitation," and the nature of the offense charged. State v.
Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b);
State v. Bender, 80 N.J. 84, 89 (1979)).
A "[d]efendant generally has a heavy burden when seeking to
overcome a prosecutorial denial of his [or her] admission into
PTI." Ibid. (citation omitted). 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." State v. Hoffman, 399 N.J. Super.
207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J.
Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008)). "A
patent and gross abuse of discretion is defined as a decision that
'has gone so wide of the mark sought to be accomplished by PTI
that fundamental fairness and justice require judicial
intervention.'" Watkins, supra, 193 N.J. at 520 (quoting State
v. Wallace, 146 N.J. 576, 582-83 (1996)). "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." State v. Bender, 80 N.J. 84, 93 (1979).
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Prosecutors are granted "wide latitude in deciding whom to
divert into the PTI program and whom to prosecute through a
traditional trial." Negran, supra, 178 N.J. at 82. We afford the
prosecutor's decision great deference. Wallace, supra, 146 N.J.
at 589. For that reason, "[t]he scope of judicial review of a
decision to reject a PTI application is 'severely limited.'"
Hoffman, supra, 399 N.J. Super. at 213 (quoting Negran, supra, 178
N.J. at 82). A trial court can only overturn a prosecutor's
decision to deny PTI upon finding a patent and gross abuse of
discretion. Kraft, supra, 265 N.J. Super. at 112-13.
Here, there is no evidence, let alone clear and convincing
evidence of a patent and gross abuse of discretion.
Affirmed.
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