STATE OF NEW JERSEY VS. BRANDON J. GILL (14-07-0807, 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NOT FOR PUBLICATION WITHOUT THE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-4381-17T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRANDON J. GILL,
Defendant-Respondent.
——————————————
Argued January 16, 2019 – Decided January 31, 2019
Before Judges Nugent and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 14-07-
0807.
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for appellant (Andrew C. Carey, Middlesex
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
David R. Oakley argued the cause for respondent
(Anderl & Oakley, PC, attorneys; David R. Oakley, of
counsel and on the brief).
PER CURIAM
The State appeals from a May 18, 2018 order granting defendant Brandon
Gill admission to pretrial intervention (PTI) over its objection. We affirm.
We have previously recounted the underlying facts in detail. State v. Gill,
No. A-0611-15 (App. Div. Sept. 8, 2017) (slip op. at 1-8). However, we briefly
summarize some of the background pertinent to this appeal. Defendant was a
twenty-five year old, gainfully employed, Florida resident, and a veteran,
currently serving in the United States Army Reserve. On the afternoon of April
25, 2014, defendant was asleep in his vehicle in the parking lot of a Target in
South Brunswick. Defendant had driven from Florida the day before to meet his
online girlfriend in New York City. He arrived at 3:00 a.m., after driving the
entire day, and left the city at 5:00 a.m. to return to Florida. Police responded
to the scene because there was a report the vehicle had been in the lot for eight
hours with its engine running.
Officers asked defendant for his credentials, which he produced. They
noticed defendant had become increasingly nervous during the questioning.
They requested he step out of the car and asked whether he had any weapons in
his possession. Without hesitation, defendant informed them he had a handgun
in his glove compartment, an extra loaded magazine, a collapsible baton, and a
knife, all of which officers recovered from his vehicle. The gun and the
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magazine contained hollow-point bullets. Defendant was subsequently arrested
and indicted for second-degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b), and fourth-degree possession of hollow-point bullets, N.J.S.A.
2C:39-3(f).
Defendant applied for admission to PTI. It is undisputed he had no
criminal history, mental illness, or history of alcohol or drug abuse. The record
reveals he was family-oriented. During his PTI interview, defendant informed
the Criminal Division Manager (CDM) that he was unaware of New Jersey gun
laws, and that the manner in which he possessed the gun was legal in Florida.
He stated he would be separated from the military, and likely lose his
employment, if the New Jersey charges were prosecuted.
Notwithstanding, the CDM recommended defendant not be admitted to
PTI, and concluded defendant's offenses were "based on complete lack of fore-
thought and ignorance" of New Jersey laws. The CDM found admission to PTI
was inappropriate because defendant was charged with a second-degree crime
and there was no causal connection between the crimes charged and the need for
rehabilitation through PTI.
As a result, the prosecutor declined to consent to defendant's admission
into PTI. Defendant appealed from the denial. Following oral argument, the
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trial court remanded the matter to the prosecutor for further consideration. After
the prosecutor filed a second letter rejecting defendant's admission to PTI , a
second hearing occurred and the trial court ordered defendant's admission into
PTI over the State's objection. The trial court denied the State's motion for
reconsideration, and on appeal we reversed and remanded for the State to further
consider defendant's PTI application. Gill, slip op. at 22.
Pursuant to our instructions, the prosecutor issued a letter and again
explained why the State would not consent to defendant's admission into PTI.
Defendant appealed, and following oral argument, Judge Joseph Paone rendered
a detailed oral opinion and entered an order compelling defendant's admission
into PTI.
The judge painstakingly addressed and analyzed every argument raised by
the State. He made detailed findings of fact and conclusions of law under the
guidelines for PTI set forth in Rule 3:28 and N.J.S.A. 2C:43-12(e). The judge
explained the State had failed to address how the information favorable to
defendant weighed into its analysis of the PTI admission factors. Judge Paone
further concluded the goals of PTI would be subverted by denying defendant's
admission into the program because
in this case PTI would, in conformance with the
guidelines, provide an alternative to prosecution for
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applicants who might be harmed by the imposition of
criminal sanctions as presently administered when such
an alternative can be expected to serve as sufficient
sanction to deter criminal conduct. PTI would provide
a mechanism for permitting the least burdensome form
of prosecution possible for defendants charged with
victimless offenses, provide assistance to criminal
calendars in order to focus expenditures of criminal
justice resources on matters involving serious
criminality and severe correctional problems, and
provide deterrence of future criminal or disorderly
behavior by an applicant in a program of supervisory
treatment.
Frankly, in view of the [Graves Act
Clarification1], this is the rare case involving
extraordinary and compelling circumstances that falls
outside the heartland of the legislative policy to deter
unauthorized gun possession. This [c]ourt therefore
concludes that the State's reliance on the nature of the
case, to the exclusion of a proper individualized
analysis and consideration of the PTI factors uniquely
related to this case, clearly subverts the goals
underlying PTI and therefore constitutes a clear error in
judgment which invariably constitutes a patent and
gross abuse of discretion.
The judge's order was stayed and this appeal followed.
The State argues the following point:
POINT I – BECAUSE DEFENDANT DID NOT
ESTABLISH BY CLEAR AND CONVINCING
EVIDENCE THAT THE DECISION BY THE STATE
1
The 2014 Clarification is available at
http://www.nj.gov/oag/dcj/agguide/directives/Graves-Act-clarification-
2014.pdf (Sept. 24, 2014).
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TO REJECT HIS PTI APPLICATION WAS A
PATENT AND GROSS ABUSE OF DISCRETION,
THE TRIAL COURT ERRED IN ORDERING HIS
ADMISSION INTO PTI OVER THE STATE'S
OBJECTION.
The decision to admit a defendant to PTI is a "quintessentially
prosecutorial function." State v. Roseman, 221 N.J. 611, 624 (2015) (quoting
State v. Wallace, 146 N.J. 576, 582 (1996)). Thus, the scope of judicial review
of a prosecutor's determination is severely limited. State v. Nwobu, 139 N.J.
236, 246 (1995); State v. Hermann, 80 N.J. 122, 127-28 (1979). Prosecutors
have wide latitude in deciding whom to divert into the PTI program and whom
to prosecute. Nwobu, 139 N.J. at 246. "Reviewing courts must accord the
prosecutor 'extreme deference.'" State v. Waters, 439 N.J. Super. 215, 225-26
(App. Div. 2015) (quoting Nwobu, 139 N.J. at 246). "We must apply the same
standard as the trial court. Therefore, we review the [trial court's ruling] of the
prosecutor's decision de novo." Id. at 226.
"Judicial review 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)). A reviewing court may order a defendant
into PTI over a prosecutor's objection only if the defendant "clearly and
convincingly establish[es] that the prosecutor's refusal to sanction admission
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into the program was based on a patent and gross abuse of . . . discretion[.]"
Wallace, 146 N.J. at 582 (alteration in original) (quoting Leonardis, 73 N.J. at
382); see also State v. Benjamin, 228 N.J. 358, 374 (2017) ("[A] defendant may
obtain a hearing to review the prosecutor's decision only after he or she has
demonstrated in a motion that the prosecutor abused his or her discretion.").
An abuse of discretion is "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." Wallace, 146 N.J. at 583(emphasis added) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "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]." Bender, 80 N.J. at 93. Absent evidence to the
contrary, a reviewing court must assume the prosecutor considered all relevant
factors in reaching its decision. State v. Dalglish, 86 N.J. 503, 509 (1981) (citing
Bender, 80 N.J. at 94).
Having reviewed the record and considered the argument raised by the
State, we affirm for the reasons expressed in Judge Paone's thorough opinion.
Defendant presented circumstances to overcome the presumption against PTI
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for individuals charged with second-degree offenses. The factors set forth in
the Graves Act Clarification clearly favored defendant. We agree with the
judge's conclusion that this case falls within the narrow band of cases, which
meet the "clear error in judgment" standard.
Affirmed.
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