STATE OF NEW JERSEY VS. DONOVAN L. HAYDENÂ (16-03-0353, HUDSON COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-5084-15T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONOVAN L. HAYDEN,
Defendant-Respondent.
________________________________________________________________
Submitted February 7, 2017 – Decided August 1, 2017
Before Judges Espinosa, Suter and Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
16-03-0353.
Esther Suarez, Hudson County Prosecutor,
attorney for appellant (Stephen J. Natoli,
Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent (Rochelle Watson, Assistant
Deputy Public Defender, of counsel and on the
brief).
PER CURIAM
This is the State's appeal from a decision by the trial court
to admit defendant into the Pre-Trial Intervention (PTI) program
over the Prosecutor's objection on the ground that the State had
applied a per se rule to reject defendant's application.
At his arraignment on a second-degree weapons offense charge,
defendant's counsel stated defendant was applying for admission
into the Pre-Trial Intervention program (PTI). The assistant
prosecutor countered, "the State will be opposing any PTI
application for [defendant.]" After its review of defendant's PTI
application, the Criminal Division recommended defendant's
admission into the Pre-Trial Intervention program (PTI), citing a
number of factors personal to defendant and concluding he was "not
a danger to society." The prosecutor rejected this recommendation
and denied defendant's application in a terse letter that
essentially relied upon the presumption of ineligibility for
persons charged with second-degree offenses.
We have reviewed the prosecutor's statement of reasons for
rejecting defendant's application. We conclude the prosecutor
failed to make an individualized assessment of the defendant under
the PTI Guidelines, established by R. 3:28, that took into account
his "'amenability to correction' and potential 'responsiveness to
rehabilitation,'" State v. Roseman, 221 N.J. 611, 621-22 (2015)
(quoting State v. Watkins, 193 N.J. 507, 520 (2008)); N.J.S.A.
2C:43-12(b)(1), and to consider the statutory criteria required
by N.J.S.A. 2C:43-12(e).
2 A-5084-15T3
For the reasons that follow, we reverse the trial court's
decision to admit defendant into PTI and remand to the trial court
to: provide additional reasons for its decision, remand to the
prosecutor for further consideration or reverse its decision, in
light of the principles we review in this opinion.
I.
Defendant was twenty-six years old at the time of his arrest
on November 15, 2015. He was stopped by Jersey City police
officers for a motor vehicle offense, tailgating, N.J.S.A. 39:4-
89. When defendant opened the center console of his car to
retrieve his credentials, one of the officers observed a handgun
in the console. The gun, a loaded Taurus Model PT.22, a.22 caliber
handgun, was seized. Defendant was arrested and charged with
second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-
5(b).
"Any defendant charged with crime is eligible for enrollment
in a PTI program, but the nature of the offense is a factor to be
considered in reviewing the application." Guidelines for
Operation of Pretrial Intervention in New Jersey, Pressler &
Verniero, Current N.J. Court Rules, Guideline 3(i) following R.
3:28 at 1235 (2017). However, depending upon the nature of the
offense charged, the PTI Guidelines establishes a rebuttable
presumption that the application "should generally be rejected"
3 A-5084-15T3
or "should ordinarily not be considered." Ibid. A "defendant's
application should generally be rejected" if the charged offense
was:
(1) part of organized criminal activity; or
(2) part of a continuing criminal business or
enterprise; or (3) deliberately committed with
violence or threat of violence against another
person; or (4) a breach of the public trust
where admission to a PTI program would
deprecate the seriousness of defendant's
crime.
[Ibid.]
Defendant was not charged with an offense that fell within
these categories. Because he was charged with a second-degree
offense, his offense was subject to a different rebuttable
presumption: "A defendant charged with a first or second degree
offense . . . should ordinarily not be considered for enrollment
in a PTI program except on joint application by the defendant and
the prosecutor." Ibid. Notwithstanding this presumption, the
Guideline establishes the procedure for review of the PTI
application:
However, in such cases, the applicant shall
have the opportunity to present to the
criminal division manager, and through the
criminal division manager to the prosecutor,
any facts or materials demonstrating the
applicant's amenability to the rehabilitative
process, showing compelling reasons
justifying the applicant's admission and
establishing that a decision against
4 A-5084-15T3
enrollment would be arbitrary and
unreasonable.
[Ibid.]
The statute that governs PTI does not bar defendants charged
with a second-degree offense from admission or codify a presumption
against admission for such defendants. N.J.S.A. 2C:43-12. As
amended by L. 2015, c. 98, which was effective August 10, 2015,
prior to defendant's application, the only limitation applicable
to defendant's admission to PTI was that he enter a plea of guilty.
N.J.S.A. 2C:43-12(g)(3). The statute provides further, "the plea
shall be held in an inactive status pending termination of
supervisory treatment . . . . Upon successful completion of the
program of supervisory treatment the charges shall be dismissed."
Ibid.
At defendant's arraignment, his attorney stated he had made
application and been interviewed for PTI. The prosecutor responded
summarily, "the State will be opposing any PTI application for
[defendant.]"
Following a review of defendant's application, the Criminal
Division recommended that defendant be enrolled in PTI. The
recommendation letter cited the following reasons for that
conclusion:
5 A-5084-15T3
This case represented defendant's "initial known contact with
the criminal justice system." He had no contact with the juvenile
justice system. There was no need to refer him for a substance
abuse evaluation. He was employed, lived with his father and
sister in a "relatively quiet" neighborhood in Jersey City, and
contributed approximately twenty-five to thirty percent of the
rent each month. Defendant admitted that purchasing and carrying
the handgun "were both examples of very poor judgment," stating:
I just felt unsafe, that's all. I felt unsafe
and nervous at the time because of all the
things that were going on in the area.
Honestly I don’t even like guns or dealing
with stuff like that, but I just felt unsafe.
I actually don't want to live here anymore. I
want to move to Pennsylvania with my
girlfriend because I feel like you can't even
go outside around here anymore.
The recommendation acknowledged the seriousness of the
offense charged but noted the circumstances that led to defendant's
arrest "were not of a violent or assaultive nature." The officer's
evaluation included the following:
It is the belief of this Officer that the
defendant is not a danger to society. Taking
into consideration the defendant's lack of a
criminal history in addition to being
gainfully employed and abstaining from the use
of drugs, this Officer cannot readily identify
any evidence to suggest Mr. Hayden is likely
to reoffend.
. . . .
6 A-5084-15T3
This Officer does not believe that Mr.
Hayden's poor judgment merits a response from
the Court that would result in a conviction
on the defendant's otherwise non-existent
criminal history, especially a conviction that
carries the possibility of a custodial
sentence.
It is the belief of this Officer that the
hardships Mr. Hayden will inevitably face as
the result of having a criminal record
containing a conviction for a second degree
crime would outweigh any harm done to society
by abandoning traditional criminal
prosecution in favor of the supervisory
treatment that the defendant would receive
through acceptance into the PTI program.
[(Emphasis added).]
After receiving this recommendation, the prosecutor's office
was required to make an individualized assessment of the defendant
under the PTI Guidelines, established by Rule 3:28, that took into
account his "'amenability to correction' and potential
'responsiveness to rehabilitation.'" Roseman, supra, 221 N.J. at
621-22 (quoting Watkins, supra, 193 N.J. at 520); N.J.S.A. 2C:43-
12(b)(1).
The prosecutor was also specifically required to consider the
seventeen factors listed in N.J.S.A. 2C:43-12(e), State v. Lee,
437 N.J. Super. 555, 562 (App. Div. 2014), which we list for ease
of reference:
(1) The nature of the offense;
(2) The facts of the case;
7 A-5084-15T3
(3) The motivation and age of the
defendant;
(4) The desire of the complainant or
victim to forego prosecution;
(5) The existence of personal problems
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;
(6) 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;
(7) The needs and interests of the victim
and society;
(8) The extent to which the applicant's
crime constitutes part of a continuing pattern
of anti-social behavior;
(9) The applicant's record of criminal
and penal violations and the extent to which
he may present a substantial danger to others;
(10) Whether or not the crime is of an
assaultive or violent nature, whether in the
criminal act itself or in the possible
injurious consequences of such behavior;
(11) Consideration of whether or not
prosecution would exacerbate the social
problem that led to the applicant's criminal
act;
(12) The history of the use of physical
violence toward others;
8 A-5084-15T3
(13) Any involvement of the applicant
with organized crime;
(14) Whether or not the crime is of such
a nature that the value of supervisory
treatment would be outweighed by the public
need for prosecution;
(15) Whether or not the applicant's
involvement with other people in the crime
charged or in other crime is such that the
interest of the State would be best served by
processing his case through traditional
criminal justice system procedures;
(16) Whether or not the applicant's
participation in pretrial intervention will
adversely affect the prosecution of
codefendants; and
(17) Whether or not the harm done to
society by abandoning criminal prosecution
would outweigh the benefits to society from
channeling an offender into a supervisory
treatment program.
[N.J.S.A. 2C:43-12(e).]
When the prosecutor rejects a PTI application, N.J.S.A.
2C:43-12(f) requires the prosecutor to "precisely state his
findings and conclusion which shall include the facts upon which
the application is based and the reasons offered for the denial."
See also State v. K.S., 220 N.J. 190, 198-99 (2014); State v.
Nwobu, 139 N.J. 236, 248 (1995) (citing Pressler & Verniero, supra,
Guideline 8, at 1240-41); State v. Rizzitello, 447 N.J. Super.
9 A-5084-15T3
301, 311 (App. Div. 2016); Pressler & Verniero, supra, Official
Comment to Guideline 2 at 1234.
The rejection letter relied upon by the State to justify its
rejection of defendant's PTI application reads as follows:
The defendant is charged in the
Indictment with a second degree weapons
offense which carries a mandatory term of
imprisonment and is therefore presumptively
ineligible for admission into the PTI Program,
absent compelling reasons justifying his
admission. Defendant's first offender status,
standing alone, does not constitute a
"compelling reason," and nothing in
defendant's character or background is
sufficiently "extraordinary" or "unusual" to
overcome the presumption against admission.
See State v. Nwobu, 139 N.J. 236 (1995).
Moreover, given the alarming
proliferation of illegal, unregistered
weapons and the threat they pose to public
safety, the nature of the offense is such that
the public need for prosecution and deterrence
outweighs the value of supervisory treatment.
In sharp contrast to the Criminal Division manager's
recommendation, this letter cited no facts regarding defendant's
personal background other than his first offender status.
Similarly, the letter relies heavily upon the "nature of the
offense" but reveals no consideration of the circumstances of the
offense. Further, the letter associates the offense with "the
alarming proliferation of" firearms although there is no
10 A-5084-15T3
allegation that defendant was engaged in the trafficking of
firearms.
Defendant appealed from the State's rejection. He argued the
rejection letter sent to the Criminal Division failed to show the
prosecutor had taken all of defendant's circumstances into
consideration. He argued further that, when viewed together, the
rejection letter and the prosecutor's statement at the arraignment
that the State would oppose any application for PTI represented a
"per se" rejection. See State v. Baynes, 148 N.J. 434, 451 (1997)
(reversing the prosecutors per se rejection of the defendants PTI
application).
In opposition to defendant's motion, the prosecutor confirmed
that defendant's PTI rejection was based on the reasoning set
forth in the rejection letter. The prosecutor argued that because
the statement made at arraignment did not constitute the State's
rejection or play any role in the rejection decision, they did not
contribute to any "per se" bar. Finally, the prosecutor argued
the reasoning for rejecting defendant's application – as set forth
in the rejection letter – was "sound logically and legally." The
thrust of the argument presented was that there was nothing
extraordinary or unusual to overcome the presumption against
admission contained in Guideline 3(i).
11 A-5084-15T3
After reviewing applicable legal principles, the trial judge
found the rejection constituted a patent and gross abuse of
discretion:
And in this case, this is a second degree
offense. And it is whether or not the
defendant has overcome the presumption against
admission. Here, in the view of this Court,
that the rejection of the defendant's
application for PTI has, is considered a
patent and gross abuse of discretion where the
prosecution has created a per se bar on his
admission based on a statement at arraignment
relating to the likelihood of defendant's
rejection from PTI, based on the statement
made by the State at arraignment, and then the
subsequent rejection by the Prosecutor's
Office. It appears from the record that the
State knew it would reject defendant's
application prior to even receiving it solely
based on the nature of the offense rather than
upon examination of defendant's background and
characteristics.
Upon reviewing the transcript and
listening to the tape, or the record of the
arraignment, the State specifically noted the
State will be opposing any PTI application for
Mr. Hayden. Based on this statement in
combination with the rejection from the
Prosecutor's Office, following a careful
consideration, and acceptance into PTI by the
Criminal Division Manager, it appears that the
Prosecutor has per se barred defendant's
admission into PTI.
She then ordered that defendant be enrolled in the PTI
program.
In its appeal, the State argues:
12 A-5084-15T3
POINT I
THE COURT ERRED IN ADMITTING THE
RESPONDENT INTO PTI BASED ON THE
PROSECUTOR'S STATEMENTS MADE AT THE
ARRAIGNMENT.
POINT II
THE TRIAL COURT ERRED BY ADMITTING
RESPONDENT INTO PTI OVER THE STATE'S
OBJECTION AS RESPONDENT FAILED TO
DEMONSTRATE THAT THE PROSECUTOR'S
REJECTION AMOUNTED TO A PATENT AND
GROSS ABUSE OF DISCRETION.
A. THE STATE CONSIDERED ALL
RELEVANT FACTORS IN ITS REJECTION OF
RESPONDENT'S PTI APPLICATION.
II.
The prosecutor's decision to accept or reject a defendant's
PTI application is entitled to a great deal of deference. Roseman,
supra, 221 N.J. at 624-25; State v. Leonardis, 73 N.J. 360, 381
(1977). We do not evaluate the case as if we "stood in the shoes
of the prosecutor." State v. Wallace, 146 N.J. 576, 589-90 (1996).
A prosecutor's decision to accept or reject a PTI application may
be overruled only when the circumstances "'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, supra, 221 N.J. at 624-25
(citation omitted); see Nwobu, supra, 139 N.J. at 254 ("The
question is not whether we agree or disagree with the prosecutor's
13 A-5084-15T3
decision, but whether the prosecutor's decision could not have
been reasonably made upon weighing the relevant factors.").
Although we rarely overturn a PTI rejection, the prosecutor's
discretion is not unlimited. State v. Negran, 178 N.J. 73, 82
(2003). In rendering the decision, the prosecutor must "make an
individualized assessment of the defendant" and consider whether
the defendant is amenable to rehabilitation. Roseman, supra, 221
N.J. at 621-22 (citing Watkins, supra, 193 N.J. at 520). The
prosecutor may not weigh inappropriate factors or ignore
appropriate factors. K.S., supra, 220 N.J. at 200. Further,
judicial review is not so limited that a denial which addresses
all the statutory factors and the Guidelines escapes further
scrutiny. In Wallace, the Supreme Court instructed, "We are not
to be understood as endorsing unbridled prosecutorial discretion
simply because all relevant factors and no inappropriate factors
are in the mix." Wallace, supra, 146 N.J. at 586. Rather, we are
obligated "to check those instances where the prosecutor has so
inappropriately weighted the various considerations so as to
constitute a 'clear error in judgment.'" Ibid.; see also State
v. Denman, 449 N.J. Super. 369, 376 (App. Div. 2017).
We are mindful of the distinction between a prosecutor's
"abuse of discretion" and "gross and patent abuse of discretion"
14 A-5084-15T3
and the remedies appropriate for each. In Roseman, the Court
noted:
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 of judgment.
[221 N.J. at 625 (quoting State v. Bender, 80
N.J. 84, 93 (1979)).]
To establish a "gross and patent abuse of discretion" that
justifies supplanting the prosecutor's decision, a defendant must
also show "that the prosecutorial error complained of will clearly
subvert the goals underlying Pretrial Intervention." Ibid.
(quoting Bender, supra, 80 N.J. at 93). 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." Wallace, supra, 146
N.J. at 582-83 (citation omitted).
"If the prosecutor's abuse arises from a clear error of
judgment, a court may order that a defendant be admitted into the
program," State v. DeMarco, 107 N.J. 562, 567 (1987), and may do
so "over the prosecutor's objection." Roseman, supra, 221 N.J.
at 625; see also Nwobu, supra, 139 N.J. at 247.
15 A-5084-15T3
When there has been an error that does not meet the "patent
and gross abuse of discretion" standard, the appropriate remedy
is a remand to the prosecutor, which affords the prosecutor "an
opportunity to apply the standards set forth by the court 'without
supplanting the prosecutor's primacy in determining whether [PTI]
is appropriate in individual cases.'" K.S., supra, 220 N.J. at
200 (quoting State v. Dalglish, 86 N.J. 503, 514 (1981)); see also
Denman, supra, 449 N.J. Super. at 377.
III.
As the trial judge correctly stated, it is a patent and gross
abuse of discretion when a prosecutor applies a per se bar to
reject a defendant's application to PTI. We disagree, however,
with the conclusion that the record supports the finding that the
prosecutor applied a per se bar here.
Most typically, a per se bar is based upon an explicit,
admitted policy the prosecutor follows without regard to the
defendant's personal characteristics. For example, in Baynes,
supra, 148 N.J. at 440, the prosecutor advised the defendant in
writing "that his PTI application was rejected because of that
prosecutor's acknowledged policy to deny PTI admission to
defendants charged with "school zone offenses," including those
involving possession of CDS for personal use." (emphasis added).
Similarly, in State v. Caliguiri, 158 N.J. 25 (1999), the
16 A-5084-15T3
prosecutor treated the PTI applicant as "categorically ineligible"
based upon a directive from the Attorney General that required
prosecutors to object to any PTI application by any person charged
under N.J.S.A. 2C:35-7 unless the proofs were insufficient to
sustain a conviction. Id. at 34.
The consequences for finding a per se rule was applied are
significant:
By their nature, per se rules require
prosecutors to disregard relevant factors,
contrary to the guidelines, and when a
defendant demonstrates that a prosecutor has
relied on such a rule, the presumption that
the prosecutor has considered all relevant
facts is overcome.
[Baynes, supra, 148 N.J. at 444-45 (emphasis
added).]
Here, the conclusion that a per se rule was applied can only
be inferred from the statement of the prosecutor and the
deficiencies in the rejection letter. Although those facts are
not inconsistent with that conclusion, they are not sufficiently
probative of that conclusion. As a result, the court was required
to engage in closer scrutiny of the prosecutor's rejection.
IV.
Because defendant is charged with offenses that fall within
PTI Guideline 3(i)(2) and thus is presumptively ineligible for
admission into PTI, the court must first determine whether he has
17 A-5084-15T3
satisfied his burden to present "compelling reasons" to rebut the
presumption against his admission into PTI. Defendant was required
to present facts or materials "'demonstrating [his] amenability
to the rehabilitative process' and 'showing compelling reasons
justifying [his] admission and establishing that a decision
against enrollment would be arbitrary and unreasonable.'" State
v. Seyler, 323 N.J. Super. 360, 369 (1999), aff'd o.b., 163 N.J.
69 (2000); Pressler & Verniero, supra, Guidelines 2, 3(i), at
1234-35. This means he "must demonstrate something extraordinary
or unusual, something 'idiosyncratic,' in his . . . background."
Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 118 N.J.
1, 7 (1990). This does not, however, require proof that denial
of his PTI application "would constitute a 'serious injustice.'"
Caliguiri, supra, 158 N.J. at 44.
To determine whether defendant has presented "compelling"
reasons to justify his admission into PTI, "the prosecutor and any
reviewing court are required to consider the criteria set forth
in N.J.S.A. 2C:43-12," which "include '[t]he nature of the
offense,' '[t]he facts of the case,' '[t]he needs and interests
of . . . society,' and '[w]hether or not the crime is of such a
nature that the value of supervisory treatment would be outweighed
by the public need for prosecution.'" Seyler, supra, 323 N.J.
18 A-5084-15T3
Super. at 369-70 (alterations in original) (citations omitted);
see also K.S., supra, 220 N.J. at 198.
It is appropriate to bear in mind the rationale underlying
the presumptions contained in the Guidelines. Presumptions
against PTI reflect an assumption that certain defendants "have
committed crimes that are, by their very nature, serious or heinous
and with respect to which the benefits of diversion are
presumptively unavailable." Roseman, supra, 221 N.J. at 622
(quoting Watkins, supra, 193 N.J. at 523). The reasoning
underlying the presumption is that applicants "who have committed
serious and heinous crimes are generally recognized as problematic
from a rehabilitation standpoint." Watkins, supra, 193 N.J. at
513.
This case is ill-suited for the application of this
assumption. First, the offense charged cannot reasonably be
considered "heinous," or of such a character that the offender
should be considered unlikely to be amenable to correction.
Second, defendant's personal circumstances offer strong support
for the conclusion, reached by the Criminal Division manager, that
he is unlikely to reoffend. We leave it to the trial court to
apply the statutory criteria to the facts in defendant's background
and the circumstances of the offense to determine whether defendant
has presented compelling reasons for his admission to PTI.
19 A-5084-15T3
V.
In the event the trial court should conclude defendant has
presented compelling reasons for his admission, the next
consideration is whether defendant has shown an abuse of discretion
by satisfying one of the three factors identified in Roseman,
i.e., whether the prosecutor's rejection was "premised upon a
consideration of all relevant factors." Roseman, supra, 221 N.J.
at 625 (quoting Bender, supra, 80 N.J. at 93). Scrutiny of the
prosecutor's statement of reasons here is particularly appropriate
because the State has consistently maintained in the trial court
and on appeal that its statement of reasons reflects a full and
fair consideration of all factors relevant to defendant's PTI
application and provides a sound legal basis for rejection.
Additionally, we note, "a reviewing court's scrutiny is generally
limited to the justification contained in the statement of
reasons." Wallace, supra, 146 N.J. at 584.
Our courts have emphasized the importance of the statement
of reasons mandated by N.J.S.A. 2C:43-12(f), which "serves four
purposes: (1) It facilitates effective judicial review; (2) it
assists in evaluating the success of the PTI program; (3) it
affords the defendant the opportunity to prepare a response; and
(4) it dispels suspicions of arbitrariness." Nwobu, supra, 139
N.J. at 249 (citing Leonardis, supra, 71 N.J. at 114-15).
20 A-5084-15T3
A.
A review of the applicable principles is helpful in evaluating
the statement of reasons here.
Each PTI applicant is "entitled to full and fair consideration
of his application." N.J.S.A. 2C:43-12(f). The statement of
reasons must show that the prosecutor has made an individualized
assessment of the defendant, giving due consideration to the
statutory factors, N.J.S.A. 2C:43-12(e), and evaluating the
individual applicant's "amenability to rehabilitation," Roseman,
supra, 221 N.J. at 630 (quoting Nwobu, supra, 139 N.J. at 255).
The factors that must be considered include "the details of the
case, defendant's motives, age, past criminal record, standing in
the community, and employment performance[.]" Id. at 621
(alteration in original) (quoting Watkins, supra, 193 N.J. at
520); accord Denman, supra, 449 N.J. Super. at 376. The prosecutor
cannot ignore evidence bearing on the relevant factors in the
Guidelines and PTI statute. State v. Lee, 437 N.J. Super. 555,
567-68 (App. Div. 2014), certif. denied, 222 N.J. 18 (2015). At
a minimum, the prosecutor "should note the factors present in
defendant's background or the offense purportedly committed which
led [the prosecutor] to conclude that admission should be denied."
Nwobu supra, 139 N.J. at 249 (alteration in original) (quoting
State v. Sutton, 80 N.J. 110, 117 (1979)).
21 A-5084-15T3
The statement of reasons "must demonstrate that the
prosecutor has carefully considered the facts in light of the
relevant law." Wallace, supra, 146 N.J. at 584. "[B]ald
declarations" that "merely parrot[] the statutory language without
providing any factual justification . . . are insufficient to
support PTI denial." Roseman, supra, 221 N.J. at 627-29.
"[T]he statement of reasons must not be vague," either.
Nwobu, supra, 139 N.J. at 249. Rather, the prosecutor's reasons
for rejection of the PTI application must be stated with
"sufficient specificity so that defendant has a meaningful
opportunity to demonstrate that they are unfounded." Ibid.
(citation omitted).
Typically, a prosecutor's rejection letter addresses each of
the factors listed in N.J.S.A. 2C:43-12(e) and explains how each
factor is or is not relevant to its consideration of an
application. Although plainly a preferred approach, it need not
be followed if the prosecutor's consideration of all appropriate
factors is evident from a reading of the statement of reasons.
That is not the case here.
B.
There are certain glaring deficiencies in the rejection
letter relied upon as the prosecutor's statement of reasons. Of
the seventeen factors listed in N.J.S.A. 2C:43-12(e), only two are
22 A-5084-15T3
reflected in the statement of reasons: "(1) the nature of the
offense," and "(17) whether or not the harm done to society by
abandoning criminal prosecution would outweigh the benefits to
society from channeling an offender into a supervisory treatment
program." Even as to these two factors, the rejection letter
merely notes defendant is charged with a second-degree offense and
parrots factor (17). To the extent the rejection letter may be
viewed as invoking factors (11) and (14), it was only in conclusory
fashion.
Statutory factors that plainly should have been considered
include: N.J.S.A. 2C:43-12(e)(2), (3), and (8) through (13). While
the prosecutor noted the degree of the offense, there was no
discussion of the circumstances of the offense. See Roseman,
supra, 221 N.J. at 621; Watkins, supra, 193 N.J. at 520; Cannel,
New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-
12 (2017) (noting, "the circumstances of the crime rather than the
particular crime charged must be involved in the decision.")
Relevant to factors (2) and (10), the offense was discovered as
the result of a motor vehicle stop for tailgating. The weapon was
not associated with any other crime and was revealed only because
defendant looked in the console for his credentials to comply with
the officer's request following a motor vehicle stop. There was
nothing in the police reports to suggest that defendant was
23 A-5084-15T3
anything other than fully cooperative with their commands – no
assaultive, suspicious or evasive behavior.
Factor (3), the defendant's age and motivation were also
highly relevant factors. It was dismissive of the prosecutor to
merely describe defendant as a first-time offender. There was no
discussion of his age, personal history, standing in the community
or employment record. See Roseman, supra, 221 N.J. at 621;
Watkins, supra, 193 N.J. at 520.
At age twenty-six, this was defendant's first known contact
with the criminal justice system. That means he had no juvenile
adjudications or charges, no charges that were dismissed and no
arrests for criminal or disorderly persons offenses. And, as a
result, there is no evidence of a "continuing pattern of anti-
social behavior" (factor 8), any "record of criminal and penal
violations" that signal "a substantial danger to others" (factor
9), no "history of the use of physical violence toward others"
(factor 12), and no involvement with organized crime (factor 13).
Because "juveniles are responsible for a large share of the
total amount of crime, . . . an applicant's juvenile record
clearly is relevant to the question whether admission into a PTI
program 'can reasonably be expected to deter future criminal
behavior by an applicant,'" and "whether an applicant's history
includes 'the use of physical violence towards others[.]'" State
24 A-5084-15T3
v. Brooks, 175 N.J. 215, 227-28 (2002) (alteration in original)
(citations omitted). We note further that defendant expressed
remorse and acknowledged he exercised poor judgment in engaging
in this conduct.
Although defendant's fear does not justify arming himself in
anticipation of the need to act in self-defense, it does provide
a non-criminal purpose for his possession of the firearm relevant
to factor (3). His stated motivation was accepted as credible by
the Criminal Division manager. The lack of any criminal history
bolstered that conclusion. Yet, the rejection letter reflects no
consideration that defendant was motivated by fear rather than by
a motive consistent with the assumption underlying the presumption
against PTI, such as an intent to use the firearm to commit an
independent offense.
All these factors weigh heavily in evaluating the likelihood
that a PTI applicant may be deterred from further criminal activity
without the need for criminal prosecution. They were considered
by the Criminal Division in reaching the conclusion that defendant
was a suitable candidate for PTI but were not addressed in the
rejection letter.
In addition to failing to adequately address the statutory
factors or conduct an individualized assessment of defendant, the
rejection letter did not apply the principle set forth in N.J.S.A.
25 A-5084-15T3
2C:43-12(b)(1): "Admission of an applicant into a program of
supervisory treatment shall be measured according to the
applicant's amenability to correction, responsiveness to
rehabilitation and the nature of the offense." See also Roseman,
supra, 221 N.J. at 621-22; State v. Mickens, 236 N.J. Super. 272,
278 (App. Div. 1989) (finding a patent and gross abuse of
discretion that warranted ordering defendant into PTI where "the
prosecutor had not one positive word to say about the
rehabilitation standard, which is so fundamental a part of PTI"
and the defendant's amenability to rehabilitation). The rejection
letter demonstrates that defendant's PTI application was measured
based upon the nature of the offense to the exclusion of the other
statutorily mandated considerations, which require a focus on the
defendant's personal attributes.
The record plainly shows the prosecutor failed to consider
all relevant factors in defendant's application or to make an
individualized assessment of him.
C.
To determine whether the rejection rose to the level of a
"patent and gross" abuse of discretion the trial court must
consider whether this failure clearly subverted the goals
underlying PTI. See Roseman, supra, 221 N.J. at 625.
26 A-5084-15T3
The Guidelines for Operation of Pretrial Intervention in New
Jersey adopted by the Supreme Court include an articulation of the
program's purposes:
(1) to enable defendants to avoid ordinary
prosecution by receiving early rehabilitative
services expected to deter future criminal
behavior; (2) to provide defendants who might
be harmed by the imposition of criminal
sanctions with an alternative to prosecution
expected to deter criminal conduct; (3) to
avoid burdensome prosecutions for
"victimless" offenses; (4) to relieve
overburdened criminal calendars so that
resources can be expended on more serious
criminal matters; and (5) to deter future
criminal behavior of PTI participants.
[Nwobu, supra, 139 N.J. at 247 (citing
Pressler & Verniero, supra, Guideline 1, at
1233).]
Pursuant to Guideline 2, "[a]ny defendant accused of crime
shall be eligible for admission into a PTI program," and such
eligibility "is broad enough to include all defendants who
demonstrate sufficient effort to effect necessary behavioral
change and show that future criminal behavior will not occur."
Pressler & Verniero, supra, Guideline 2, at 1234, see also Nwobu,
supra, 139 N.J. at 247-48. Because the breadth of eligibility is
measured by the defendant's capacity to avoid future criminal
conduct, offense-related factors will not defeat eligibility in
appropriate cases. See Caliguiri, supra, 158 N.J. at 39 ("Even
offenders charged with violent or first-degree offenses are not
27 A-5084-15T3
categorically ineligible."). Guideline 3 explicitly provides for
consideration, under specific circumstances, of PTI applications
from persons who are not first offenders, Pressler & Verniero,
supra, Guideline 3(e), at 1234-35; are charged with more than one
offense, Nwobu, supra, 139 N.J. at 247-48; or are parolees or
probationers, Pressler & Verniero, supra, Guideline 3(f), at 1235.
Guideline 3(i), therefore calls for a "balance [to be] struck
between a defendant's amenability to correction, responsiveness
to rehabilitation and the nature of the offense." Id., Official
Comment to Guideline 3, at 1237-38.
The prosecutor made no effort to strike such a balance, in
contravention of Guideline 3(i). Moreover, the narrow focus on
the nature of the offense, divorced from its circumstances and the
factors in defendant's background that led the Criminal Division
manager to conclude he was unlikely to reoffend, is at odds with
the goal of PTI to afford the opportunity to avoid criminal
prosecution to "all defendants" who can show "future criminal
behavior will not occur."
The Official Comment to Guideline 1 notes that diversion "can
serve as sufficient sanction to deter future criminal conduct" in
appropriate cases; that some people "can be deterred from criminal
behavior by short term rehabilitative work or supervision" while
for others, "no more than a supervised pretrial probationary period
28 A-5084-15T3
may be necessary when no extensive need for rehabilitative services
can be discerned." Id., Official Comment to Guideline 1, at 1233.
Further, the public interest can be served when diversion "results
in the deterrence of future misconduct." Ibid.
These principles highlight the fact that the central purpose
of PTI is to "divert[] eligible defendants out of the criminal
process to their own advantage, society's and that of the criminal
justice system." Mickens, supra, 236 N.J. Super. at 277. The
relevant question is whether defendant can be deterred from future
criminal behavior and it is answered through an individualized
assessment of his amenability to refrain from such conduct. The
label placed on the offense charged does not dictate the answer
and it is understood that some PTI applicants, like defendant,
will not require extensive rehabilitative services to accomplish
this goal.
The prosecutor ignored these principles. There was no
individualized assessment of defendant's amenability to
correction. It is also noteworthy that the prosecutor failed to
consider the deterrent value of the requirement imposed by N.J.S.A.
2C:43-12(g)(3). Because he was charged with a second degree
offense, defendant would be required to enter a guilty plea that
would be held in abeyance pending defendant's successful
completion of the PTI program. Yet, there was no consideration
29 A-5084-15T3
as to whether this veritable sword of Damocles would adequately
serve any of the legitimate prosecution interests regarding
defendant's offense or provide sufficient incentive for defendant
to be deterred from future criminal activity.
Despite the manifest inadequacy of the rejection letter, the
prosecutor has maintained throughout that its rejection was based
upon a full and fair consideration of defendant's application.
"Failure to provide 'comprehensive and flexible' evaluation
'undermine[s] the efficacy of PTI.'" Caliguiri, supra, 158 N.J.
at 39 (alteration in original) (citations omitted).
D.
In the event the trial judge concludes the rejection here
constituted a patent and gross abuse of discretion, the next
decision concerns the appropriate remedy. In Mickens, supra,
Judge Pressler succinctly described the task at hand:
[T]he appellate court must distinguish between
prosecutorial abuse consisting of the failure
to consider all relevant factors specific to
the individual candidate and prosecutorial
abuse represented by a judgment reached after
a full consideration. In the first instance,
it is the obligation of the reviewing court
to remand to the prosecutor for
reconsideration. In the second instance, the
reviewing court is free to conclude that the
abuse "arises from a clear error of judgment,"
and, if it does so, it "may order that a
defendant be admitted into the program.
30 A-5084-15T3
[236 N.J. Super. at 277-78 (quoting State v.
DeMarco, 107 N.J. 562, 567 (1987)).]
Although a remand to the prosecutor is the customary remedy,
that is not the required disposition even when the prosecutor's
error is merely an abuse of discretion and does not rise to the
level of a patent and gross abuse of discretion. The reviewing
court should determine that a remand will "serve a useful purpose."
Caliguiri, supra, 158 N.J. at 43 (citing Dalglish, supra, 86 N.J.
at 509).
Although these examples are not exclusive, a useful purpose
is served when "the prosecutor failed to consider all relevant
factors," Wallace, supra, 146 N.J. at 583-84; when the prosecutor
mistakenly applied a presumption of PTI ineligibility under
Guideline 3(i) to a defendant not charged with one of the included
crimes, State v. Coursey, 445 N.J. Super. 506, 512 (App. Div.
2016); when the rejection was improperly based upon a prosecutor's
policy, State v. Baynes, 148 N.J. 434, 450 (1997), or a directive
from the Attorney General, Caliguiri, supra, 158 N.J. at 45, rather
than upon an individualized assessment of the PTI applicant; or
when the Court has announced a new interpretation of a Guideline
to be considered in evaluating the defendant's application, K.S.,
supra, 220 N.J. at 199. What is common to each of these examples
is that the rejection decision rested upon a legal error that
31 A-5084-15T3
could readily be remedied on remand pursuant to the reviewing
court's direction.
A different course of action is appropriate when the error
represents an error in judgment.
It is unlikely, on the other hand, that a
remand would serve a useful purpose if the
prosecutor's decision was based on appropriate
factors but, clearly and convincingly,
amounted to a plain error of judgment
equivalent to a patent and gross abuse of
discretion. In that situation it is usually
appropriate for a court directly to order
admission to PTI.
[Wallace, supra, 146 N.J. at 584.]
In Roseman,1 supra, the Court acknowledged that a remand was
the customary remedy for an inadequate statement of reasons by the
prosecutor. 221 N.J. at 629. Nonetheless, the Court concluded a
remand was inappropriate because the "circumstances show clearly
and convincingly that there has been a patent and gross abuse of
discretion by the prosecutor which constituted a clear error in
judgment that will 'subvert the goals underlying [PTI].'" Id. at
629-30 (alteration in original) (citation omitted); see also
Wallace, supra, 146 N.J. at 582 (noting a reviewing court may
order a defendant into PTI if the defendant can "clearly and
1
In Roseman, the defendants were charged with second-degree
official misconduct, which creates a presumption against
acceptance into PTI under both the Guidelines and N.J.S.A. 2C:43-
12(b). 221 N.J. at 617, 618-19.
32 A-5084-15T3
convincingly establish that the prosecutor's refusal to sanction
admission into the program was based on a patent and gross abuse
of . . . discretion." (alteration in original) (citation
omitted)). "[A]n error in applying guidelines to the facts of the
case" will rise to a "clear error of judgment" if it "is one that
'could not have reasonably been made upon a weighing of the
relevant factors.'" Nwobu, supra, 139 N.J. at 253-54 (quoting
State v. Roth, 95 N.J. 334, 366 (1984)).
At the time the assistant prosecutor announced at defendant's
arraignment that the State would oppose his PTI application, it
was evident that the statement was made without any access to or
consideration of defendant's personal background or amenability
to correction. The State has not contended otherwise. If the
rejection here was not based on the offense charged, per se, the
rejection letter was not just the prosecutor's opportunity to
elaborate; it was the prosecutor's obligation to show there had
been an individualized assessment of defendant and the offense
committed, applying the statutory factors. The statement of
reasons relied upon by the State utterly failed to do so.
Certainly, the nature of the offense is a relevant factor,
but the rejection letter also includes an implicit conclusion —
that defendant is not amenable to correction. That factor is at
the core of any assessment of a defendant's PTI application. Yet,
33 A-5084-15T3
despite the State's persistence it has fully and fairly considered
all relevant factors, there is no evidence that the prosecutor
properly considered and weighed defendant's amenability to
correction.
We therefore remand this matter to the trial judge for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
34 A-5084-15T3