STATE OF NEW JERSEY VS. SHARDAI L. SANTOS (16-12-3331, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5266-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARDAI L. SANTOS,
Defendant-Appellant.
_____________________________
Submitted December 5, 2019 – Decided December 20, 2019
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-12-3331.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Timothy Denny, Assistant Deputy
Public Defender, of counsel and on the briefs).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Linda Anne Shashoua, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Shardai L. Santos appeals from the July 18, 2017 judgment of
conviction of third-degree witness tampering, N.J.S.A. 2C:28-5(a)(2), and the
sentence imposed by the Law Division. We affirm.
I.
The following facts are derived from the record. On June 11, 2016,
defendant posted digital images of confidential police reports on a social media
site available for public viewing. The reports identified by name a cooperating
witness in an ongoing homicide investigation. Defendant labeled the witness ,
her former boyfriend, a "snitch." The reports also contained the witness's
birthdate and address, and a summary of the statement he gave to police
implicating someone in the homicide. Defendant sent the witness a text stating
she posted his identifying information because he was not to be trusted and she
wanted those with whom he associated to be aware that he "could possibl y tell
on" them.
A grand jury indicted defendant, charging her with: (1) third-degree
witness tampering, N.J.S.A. 2C:28-5(a)(2); and (2) third-degree terroristic
threats, N.J.S.A. 2C:12-3(a).
Defendant applied for admission into the pretrial intervention program
(PTI). On March 8, 2017, a Senior Probation Officer (SPO), acting on behalf of
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the PTI program director, issued a written statement declining to recommend
defendant's admission to PTI. The statement noted because defendant was
charged with making a threat of violence, pursuant to Guideline 3(i)(3), she
would ordinarily be denied admission into PTI in the absence of compelling
facts supporting admission. 1 The SPO then discussed the factors set forth in
N.J.S.A. 2C:43-12(e) to be considered when reviewing an application for
admission to PTI. After acknowledging defendant's young age and lack of
serious criminal record, the SPO determined the serious nature of the charges,
the interests of the public in protecting the identity of cooperating witnesses in
homicide investigations, the interests of the victim, and the potential
consequences of revealing the identity and address of a cooperating witness
militated against granting defendant's application. The SPO concluded
[t]o allow this defendant into the PTI program
diminishes the seriousness of the act and in essence
conveys to the public that threats to witnesses will not
only be tolerated but given minimal consequences.
This type of message will thwart cooperative efforts
with law enforcement.
1
At all times relevant to this appeal, N.J.S.A. 2C:43-12 and 2C:43-13 and the
parallel provisions of Rule 3:28 and its related Guidelines governed the
administration of PTI. The rule was repealed and replaced with Rule 3:28-1 to
-10, effective July 1, 2018, and the Guidelines were eliminated. See State v.
Johnson, 238 N.J. 119, 128 (2019). We apply the Rule and Guidelines in effect
at the time of defendant's application.
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....
Please be advised that you have ten (10) days from
receipt of this letter to appeal the decision of the
program.
Defendant did not appeal the SPO's denial of her PTI application.
On April 10, 2017, defendant entered a guilty plea to third-degree witness
tampering. Pursuant to a negotiated plea agreement, in exchange for defendant's
plea, the State agreed to dismiss the remaining count of the indictment and
recommend a five-year term of noncustodial probation. At the plea allocution,
defendant admitted she posted the information in an effort to keep the witness
from testifying and to otherwise thwart his cooperation in the homicide
investigation.
Prior to sentencing, defendant moved to vacate her guilty plea. She argued
she had a meritorious defense to the charges because she had proof the victim
hacked her social media account and posted the digital images to frame
defendant. The trial court denied defendant's motion, finding she produced no
evidence demonstrating a meritorious defense, and questioning the plausibility
of the victim voluntarily publicly identifying himself as a cooperating witness
in a homicide investigation and posting his personal identifying information.
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At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-
1(a)(3), a risk defendant will commit another offense; and nine, N.J.S.A. 2C:44-
1(a)(9), the need to deter defendant and others from violating the law. The court
found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7), defendant led a law-
abiding life for a substantial period of time before committing the offense; nine,
N.J.S.A. 2C:44-1(b)(9), defendant's character and attitude indicate she is
unlikely to commit another offense; and ten, N.J.S.A. 2C:44-1(b)(10), defendant
is particularly likely to respond to probationary treatment. The court determined
the aggravating factors outweighed the mitigating factors and imposed a five-
year noncustodial term of probation.
This appeal followed. Defendant makes the following arguments for our
consideration:
POINT I
THE PTI APPLICATION SHOULD BE
RECONSIDERED BECAUSE THE CAMDEN
COUNTY PROSECUTOR GAVE NO
CONSIDERATION WHATSOEVER TO THE
APPLICATION.
A. OUR LAW REQUIRES THE PROSECUTOR
TO EVALUATE A PTI APPLICATION BASED ON
AN INDIVIDUALIZED ASSESSMENT OF THE
APPLICANT'S AMENABILITY TO
REHABILITATION, AND TO FOLLOW THE
PRESCRIBED PROCEDURES THAT ENSURE
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BOTH MEANINGFUL CONSIDERATION OF
APPLICANTS AND MEANINGFUL APPELLATE
REVIEW.
B. THE PROSECUTOR'S FAILURE TO PROVIDE
A STATEMENT OF REASONS FOR REJECTING
MS. SANTOS IS PALPABLY DEFICIENT AS IT
FAILS TO PROVIDE ANY REASONS – LET ALONE
VALID ONES – FOR WITHHOLDING CONSENT
TO ENTER PTI.
POINT II
THE FIVE-YEAR PROBATIONARY SENTENCE
WAS MANIFESTLY EXCESSIVE, REQUIRING A
REMAND FOR RESENTENCING.
II.
The criteria for admission to PTI, as well as the procedures concerning
applications for admission to the program, are set forth in N.J.S.A. 2C:43-12 to
-22 and, at the time of defendant's application, Rule 3:28 (repealed July 1, 2018).
Admission to PTI is conditioned on "the consent of the prosecutor and upon
written recommendation of the program director . . . ." N.J.S.A. 2C:43-12(e).
If the applicant desires to challenge the decision of a
program director not to recommend, or a prosecutor not
to consent to, enrollment into a supervisory treatment
program, a motion shall be filed before the designated
judge (or assignment judge) authorized pursuant to the
Rules of Court to enter such orders.
[N.J.S.A. 2C:43-12(f) (emphasis added).]
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According to Rule 3:28(h) (repealed July 1, 2018),
[a]n appeal by the defendant shall be made on motion
to the Presiding Judge of the Criminal Division or to
the judge to whom the case has been assigned within
ten days after the rejection . . . .
The Rule "contemplates an appeal to the Law Division following the rejection
of a PTI application by the Criminal Division Manager [or his or her designee]
or the Prosecutor." State v. Moraes-Pena, 386 N.J. Super. 569, 577 (App. Div.
2006); see also Guideline 8 (repealed July 1, 2018) ("If a defendant desires to
challenge the decision of a criminal division manager not to recommend
enrollment . . . into a PTI program, a motion must be filed before the designated
judge . . . authorized to enter orders under R. 3:28.") After a conviction, a trial
court decision upholding the denial of admission to PTI may be reviewed by this
court. R. 3:28(g) (repealed July 1, 2018); State v. Waters, 439 N.J. Super. 215,
223 (App. Div. 2015).
There is, however, no legal support for defendant's argument that she may
challenge before this court the SPO's decision not to recommend her admission
into PTI without first appealing that decision to the trial court. Defendant had
the opportunity to raise any perceived flaws in the SPO's decision in a motion
to the trial court, which had the authority to admit defendant to PTI over the
prosecutor's objection. Defendant instead elected to enter a guilty plea pursuant
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to a negotiated plea agreement. Having failed to seek review by the trial court
of the denial of her application for admission to PTI, defendant may not raise
the issue for the first time before this court.
We also reject defendant's argument that her sentence is excessive. We
review sentencing determinations for abuse of discretion. State v. Robinson,
217 N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). The
sentencing court must "undertake[] an examination and weighing of the
aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)."
Roth, 95 N.J. at 359; State v. Kruse, 105 N.J. 354, 359 (1987). Furthermore,
"[e]ach factor found by the trial court to be relevant must be supported by
'competent, reasonably credible evidence'" in the record. State v. Fuentes, 217
N.J. 57, 72 (2014) (quoting Roth, 95 N.J. at 363).
We accord deference to the sentencing court's determination. Id. at 70
(citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). We must affirm
defendant's sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
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[Ibid. (quoting Roth, 95 N.J. at 364-65).]
We are satisfied the judge's findings and balancing of the aggravating and
mitigating factors are supported by adequate evidence in the record, and the
sentence is neither inconsistent with sentencing provisions of the Code of
Criminal Justice nor shocking to the judicial conscience. See Ibid.; State v.
Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81
(2009). Five years of noncustodial probation is consistent with the gravity of
defendant's criminal conduct. As the trial court noted, defendant's actions put
the witness in danger and undermined the efforts of law enforcement to
encourage cooperation from the community in the investigation and prosecution
of serious criminal activity.
Affirmed.
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