State of New Jersey v. A.S.-m.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4682-14T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 26, 2016
v. APPELLATE DIVISION
A.S.-M.,
Defendant-Respondent.
______________________________
Submitted February 8, 2016 – Decided February 26, 2016
Before Judges Lihotz, Fasciale and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 13-01-0008.
Geoffrey D. Soriano, Somerset County
Prosecutor, attorney for appellant (Rory A.
Eaton, Assistant Prosecutor, of counsel and
on the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent (Jason A. Coe, Assistant
Deputy Public Defender, of counsel and on
the briefs).
The opinion of the court was delivered by
FASCIALE, J.A.D.
The State appeals from a June 16, 2015 order granting
defendant's motion to reinstate him into the pre-trial
intervention (PTI) program. The court treated defendant's
motion as one seeking reconsideration of a prior order, which
terminated defendant's participation in the program, purportedly
because he violated various PTI conditions. The State
challenges the order as erroneous arguing (1) readmission into
the PTI program contravenes N.J.S.A. 2C:43-12(g)(1) and
Guideline 3(g) of Rule 3:28, which the State contends allows a
defendant the benefit of only one opportunity to participate in
PTI; (2) the court disregarded the established procedure for PTI
admission and undermined the prosecutor's role in the process;
and (3) defendant's non-compliance rendered him a poor candidate
for reentry into the PTI program.
We hold that reconsideration of an order terminating a
defendant from the PTI program is not precluded by N.J.S.A.
2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28. That is, a
defendant terminated from the PTI program may be reinstated upon
reconsideration. Such a reconsideration is especially
permissible when circumstances show the initial order
terminating a defendant from PTI failed to adhere to the
requirements of N.J.S.A. 2C:43-13(e), including the obligation
to undertake a "conscientious judgment" to (1) adequately
consider whether the participant willfully violated the PTI
conditions; and (2) determine whether the defendant remains a
viable candidate for PTI under the original or modified PTI
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terms. State v. Devatt, 173 N.J. Super. 188, 194-95 (App.
Div.), certif. denied, 84 N.J. 441 (1980). We affirm.
I.
Defendant worked as a cashier in a department store and was
arrested for under-ringing merchandise for two individuals to
whom he owed money. A grand jury indicted and charged him with
committing third-degree shoplifting, N.J.S.A. 2C:20-11(b)(5).
Defendant, who was twenty-one-years old at the time, a lawful
permanent resident of this country, and had no criminal history,
applied for admission into the PTI program. The prosecutor
granted defendant's application and imposed various conditions
on the supervisory treatment.
Approximately four months after defendant entered the PTI
program, the State moved to terminate defendant from the
program, arguing: defendant failed to report to his probation
officer; failed to submit to a substance abuse evaluation;
tested positive for marijuana use; failed to pay fines; and
failed to complete community service. The first judge scheduled
a PTI termination hearing, at which defendant did not appear.
Following review, the judge ordered defendant's participation in
PTI terminated; however, he expressed no findings on whether
defendant willfully violated the PTI conditions or remained a
viable candidate for supervisory treatment. The first judge
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entered the termination order and re-listed the case for a
status conference.
At the next scheduled status conference, defense counsel
indicated she would "contact PTI to see if they [were] in any
way inclined to accept [defendant] back into [the] PTI
[program,]" and if so, she would file a motion for that relief.
At the next conference, before a new judge (the second judge),
defense counsel reported "probation" was unwilling "to join an
application to reopen [defendant's PTI] file[,]" and that she
intended to file a motion. The second judge listed the matter
for oral argument in March 2015.
At oral argument, defense counsel maintained defendant
generally complied with all PTI conditions, although she
acknowledged he "didn't fully comply" and missed some meetings
with his probation officer. She asserted defendant attempted to
schedule his substance abuse evaluation, but lacked the funds to
do so given the time period allotted; struggled paying his fines
because he was indigent; completed more than half of his
community service hours; and had remained offense free. She
urged the court to readmit defendant into the PTI program,
especially because he was subject to deportation and had a young
child.
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The State strenuously objected to defendant's reinstatement
into the PTI program. The assistant prosecutor argued defendant
"totally disregarded the court," which necessitated the issuance
of a bench warrant; was a poor candidate for PTI; and "had his
chance."
At the hearing, defendant admitted he would test positive
for marijuana if tested that day. The second judge, who was
clearly frustrated with defendant's lack of appreciation for the
risk of deportation, reserved decision. To fully ascertain
whether defendant remained a good candidate for supervisory
treatment, the second judge relisted the matter giving defendant
the opportunity to demonstrate he could remain drug free.
In June 2015, the parties returned to court. The second
judge noted defendant tested negative for drug use on five
separate occasions since March 2015. The assistant prosecutor
maintained the State's objection to defendant's reentry into the
PTI program, arguing that defendant was procedurally barred from
seeking reinstatement after termination by the court. The
second judge rejected the State's argument:
It seems to me the whole point of [PTI]
. . . is to help offenders get on the right
path, and do what they ought to be doing, so
that they don't end up with a criminal
record.
It does not particularly serve any of
us well if someone has a criminal record for
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one offense that perhaps was a youthful
misdirection . . . and then can't get a job
[and] can't be a part of functioning society
. . . .
. . . .
But since the underlying purpose is
rehabilitation, and we can expect from the
people in rehabilitation to make some
mistakes along the way, I am going to
readmit [defendant] to [the PTI program]
. . . .
The second judge then modified the PTI terms by extending
defendant's participation in the PTI program for one year,
requiring him to undergo a drug and alcohol evaluation, and
imposing twenty additional hours of community service. She also
warned defendant that any violations would result in termination
of his supervisory treatment.
II.
We begin by addressing the State's contention that the
plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of
Rule 3:28 prohibit defendant's readmission into the PTI program.
On this legal question, we review the second judge's conclusions
de novo. State v. Reece, 222 N.J. 154, 167 (2015). We conclude
the State's argument is misplaced.
A.
At the outset, we note that the first judge terminated
defendant from the PTI program without conducting a sufficient
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termination hearing. Termination from PTI is governed by
N.J.S.A. 2C:43-13(e), which states, in pertinent part: "the
court shall determine, after summary hearing, whether said
violation warrants the participant's dismissal from the
supervisory treatment program or modification of the conditions
of continued participation in that or another supervisory
treatment program." This review requires a judge to make a
"conscientious judgment[,]" taking into consideration whether
that defendant is fit to continue in the program" before
deciding whether defendant "wil[l]fully violated [his or her]
PTI conditions" justifying termination from PTI. Devatt, supra,
173 N.J. Super. at 194-95.
The first judge did not determine whether defendant
willfully violated the PTI conditions, whether defendant
remained a suitable candidate for supervisory treatment, or
whether dismissal from PTI or modification of the PTI conditions
was warranted. Consequently, the record lacks the factual
support for the order of termination of PTI.
B.
Even though the PTI termination hearing lacked any
meaningful determination as to whether defendant willfully
violated the conditions or was otherwise unfit as a PTI
candidate, the State argues defendant is procedurally precluded
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from seeking reconsideration of that termination based on the
plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of
Rule 3:28.
The State's argument is premised on its conclusion that
defendant will receive supervisory treatment twice as a result
of vacating the improvidently-granted termination order.
Defendant urges we reject this interpretation, arguing he is not
receiving a second opportunity for PTI related to a different
offense, but reinstated into the program based on the underlying
shoplifting charge.
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." State v. Nwobu,
139 N.J. 236, 240 (1995). PTI was
established initially by Rule 3:28 in 1970.
State v. Watkins, 193 N.J. 507, 517 (2008)
(citing State v. Leonardis, 71 N.J. 85, 103
(1976) . . . . In 1979, the Legislature
incorporated PTI into the overhaul of the
criminal codes, establishing PTI as a
statewide program pursuant to N.J.S.A.
2C:43-12. Ibid. Thus, PTI programs are
"governed simultaneously by [Rule 3:28] and
the statute which 'generally mirror[ ]' each
other." Ibid. (quoting State v. Wallace,
146 N.J. 576, 582 (1996) (citations
omitted)).
[State v. Roseman, 221 N.J. 611, 621
(2015).]
"As always, when interpreting a statute's meaning, we
attempt to discern and implement the Legislature's intent."
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State v. Drury, 190 N.J. 197, 209 (2007). Applying the basic
techniques of statutory interpretation, we first look to the
statute's plain meaning. Ibid. If the language of the statute
is ambiguous, or "admits to more than one reasonable
interpretation, we may look to sources outside the language to
ascertain the Legislature's intent." State v. Reiner, 180 N.J.
307, 311 (2004). Extrinsic sources used to discern the
Legislature's intent include "the statute's purpose, to the
extent that it is known, and the relevant legislative history."
Drury, supra, 190 N.J. at 209. Moreover, "[w]hen interpreting
court rules, we ordinarily apply canons of statutory
construction." Wiese v. Dedhia, 188 N.J. 587, 592 (2006).
Thus, we apply the same framework in construing both the statute
and court rule at issue.
N.J.S.A. 2C:43-12(g)(1) provides:
Supervisory treatment may occur only once
with respect to any defendant and any person
who has previously received supervisory
treatment under section 27 of P.L.1970,
c.226 (C.24:21-27), a conditional discharge
pursuant to N.J.S.[A.] 2C:36A-1, or a
conditional dismissal pursuant to P.L.2013,
c.158 (C.2C:43-13.1 et al.) shall not be
eligible for supervisory treatment under
this section.
Guideline 3(g) of Rule 3:28, entitled "Defendants Previously
Diverted[,]" states in part that "[s]upervisory treatment may
occur only once with respect to any defendant who has previously
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been enrolled in a program of [PTI] or conditionally discharged
pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1." Pressler &
Verniero, Current N.J. Court Rules, Guideline 3(g) to R. 3:28
(2016).
The statute and rule preclude supervisory treatment if a
participant in the PTI program has been conditionally discharged
on separate and unrelated charges. A defendant is clearly
ineligible for PTI on new, unrelated charges. State v. O'Brien,
418 N.J. Super. 428, 438 (App. Div. 2011).
We consider defendant's reentry into the PTI program, upon
reconsideration of an order terminating his participation in the
program, a single occurrence of supervisory treatment for
purposes of the rule and statute. The plain language of
N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28 do not
expressly preclude a defendant from seeking reconsideration of
an order terminating him from the PTI program, especially when a
defendant believes the order was erroneously entered. Nor is
there any language in the statute or rule which expressly bars a
defendant, who has been erroneously terminated from the program,
from being readmitted into the PTI program. Thus, neither the
statute nor rule preclude defendant from being reinstated into
the PTI program upon reconsideration.
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III.
The State alternatively contends that by reconsidering a
prior order terminating a participant from supervisory
treatment, the second judge disregarded the established
procedures for admission into PTI. The State maintains such
reconsideration undermines the prosecutor's role in the
admission process. The established procedures referenced by the
State, however, apply to a prosecutor's initial review of a PTI
application, not reconsideration of an erroneously entered
termination order.
We briefly summarize the well-settled procedures for
admission into the PTI program to demonstrate that the second
judge did not undermine the prosecutor's role.
New Jersey's PTI program is governed by N.J.S.A. 2C:43-12
and the Supreme Court's guidelines for implementation, set forth
in Rule 3:28. Generally, individuals with no prior convictions
are afforded the opportunity to avoid prosecution by receiving
rehabilitative services or supervision. N.J.S.A. 2C:43-12(a).
A PTI application is initially reviewed by the criminal division
manager, R. 3:28; however, the decision to admit an applicant
into a PTI program rests with the reasoned discretion of the
prosecutor. N.J.S.A. 2C:43-12(e); see also Nwobu, supra, 139
N.J. at 246. N.J.S.A. 2C:43-12(e) identifies seventeen factors
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for consideration when examining an application for PTI
admission.
Prosecutors exercise broad discretion in determining who to
admit into PTI. Nwobu, supra, 139 N.J. at 246. As such, we
extend "'enhanced'" deference to that decision. State v.
Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148
N.J. 434, 443 (1997)). Our "severely limited" review is
designed to address "only the 'most egregious examples of
injustice and unfairness.'" Ibid. (quoting State v. Leonardis,
73 N.J. 360, 384 (1977)).
If an application is denied, the prosecutor must provide a
statement of findings supporting his or her conclusion.
N.J.S.A. 2C:43-12(f). A defendant may appeal by moving before
the Superior Court to overturn the prosecutor's rejection.
Ibid. The burden to "clearly and convincingly establish that
the prosecutor's decision constitutes a patent and gross abuse
of discretion" rests with the defendant. Watkins, supra, 193
N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305-
06 (App. Div. 2007)). In State v. Bender, 80 N.J. 84, 93
(1979), the Court defined a "patent and gross abuse of
discretion" in the context of a prosecutor's denial of a PTI
application:
Ordinarily, an abuse of discretion will be
manifest if defendant can show that a
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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 [PTI].
[(Citation omitted).]
The "patent and gross abuse of discretion" standard applies to a
prosecutor's initial decision to reject a candidate into the PTI
program.
Here, the prosecutor considered defendant's application for
admission into the program and concluded that he was a suitable
candidate for supervisory treatment. Defense counsel did not
re-apply to the prosecutor for defendant's admission into the
PTI program after the first judge terminated defendant's
participation in the program. Rather, she filed a motion for
reinstatement of PTI essentially seeking reconsideration of the
termination order. Thus, the "patent and gross abuse of
discretion" standard ordinarily applicable to a prosecutor's
initial decision does not govern a court's discretionary
decision on reconsideration to readmit a defendant into PTI. In
other words, the court's authority to reinstate a previously
admitted participant into the PTI program is not limited to
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circumstances where the prosecutor's objection amounts to a
"patent and gross abuse of discretion."
IV.
Finally, we reject the State's argument that defendant's
non-compliance rendered him a poor candidate for reentry into
the PTI program. Defendant's motion for readmission to PTI
sought reconsideration of the earlier order terminating
defendant's participation in PTI. Motions for reconsideration
in criminal matters are committed to the sound discretion of the
trial court and are generally intended "to correct a court's
error or oversight." State v. Puryear, 441 N.J. Super. 280, 294
(App. Div. 2015).
The first judge's "error or oversight" was failing to
determine both whether defendant willfully violated his PTI
conditions and whether defendant remained a viable candidate for
PTI. On this record, the second judge's determination defendant
remained a viable candidate for PTI was amply supported. As a
result, we conclude that the second judge did not abuse her
discretion.
The second judge specifically monitored defendant's ability
to remain drug free for approximately three months, learned that
defendant tested negative for drug use on five separate
occasions, and concluded defendant remained a viable candidate
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for PTI. She modified the PTI conditions by extending the
duration of the supervisory treatment, imposing new community
service obligations, and requiring defendant to undergo a
substance abuse evaluation.
Affirmed.
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