STATE OF NEW JERSEY VS. MARK A. HIGHSMITH (15-08-1186, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0521-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK A. HIGHSMITH,
Defendant-Appellant.
____________________________
Submitted November 8, 2018 - Decided November 29, 2018
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 15-08-1186.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa A. Aiello, Assistant Deputy Public
Defender, of counsel and on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Svjetlana Tesic, Assistant Prosecutor, on
the brief).
PER CURIAM
Defendant appeals from an order denying his admission into a pretrial
intervention (PTI) program. We reverse and remand for the prosecutor to
reconsider defendant's PTI application.
This case involves a city on edge in the days following the July 13, 2014
shooting deaths of a police officer and the man who shot the officer. The two
deaths inflamed tensions among city residents, who built a shrine at the location
where the man was killed. City police officers were on high alert following the
shootings.
The day after the shootings, defendant was in the area of the shrine,
meeting friends for drinks. The bar where defendant met his friends was located
at the same intersection as the shrine.
Defendant had three different encounters with the police in the early
morning hours of July 15, 2014. In the first encounter, defendant was walking
with a friend and drinking alcohol from an open container. The two were
stopped by the police, asked to produce identification, searched, and then told
to go home.
The second encounter between police and defendant occurred near the
shrine. According to defendant and his friend, the officers "roughed them up,"
cursed at them, ordered them to kneel, and forced the two men to watch while
A-0521-17T1
2
officers desecrated and dismantled the shrine. This encounter with the police
was captured on videotape. The videotape shows defendant walking past the
shrine over the course of an hour with his friend, two females, and another male.
During the course of walking the streets that evening, defendant picked up a
fence post with a point from a nearby construction site. Defendant explained he
took the fence post to fix a door frame in his home.
The third encounter between defendant and the police occurred around
1:30 in the morning. Video from a surveillance camera showed a police vehicle,
traveling in the wrong direction, stop in front of defendant and his friend.
Defendant thought the police truck would pass without incident. However, the
officers in the truck were the same officers who stopped defendant during the
first encounter.
Defendant saw the officer in the passenger seat of the truck holding a gun.
According to defendant, he was afraid he would be shot by the officer. As a
result, he hurled the fence post at the truck. An officer, struck in the head by
the fence post, suffered a cut. The officer then fired two shots through the door
of the truck. When he heard the shots, defendant turned and ran from the police.
Defendant was shot in the back, thigh, shoulder, and forearm by another officer.
A-0521-17T1
3
Defendant was taken to the hospital to be treated for his gunshot wounds , and
remained hospitalized for eight months.
Defendant was arrested and charged with several offenses, including
third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).
Defendant pleaded guilty to that charge.
After his guilty plea, but prior to sentencing, defendant applied for PTI.
By order dated December 9, 2016, the PTI judge permitted defendant to apply
for PTI out of time.1
In a report dated January 10, 2017, the assistant criminal division manager
(ACDM) of Hudson County recommended defendant be admitted into the PTI
program. In the ACDM's recommendation, she wrote:
Taking into consideration the defendant's nominal
criminal history, the count and degree the defendant is
pleading guilty to being in the third degree range, and
the leaps and bounds he has made personally and
professionally by taking a number of positive steps
following his involvement with the present pending
offense coupled with the minimal injury the victim
suffered as opposed to the overwhelming injury and
pain the defendant endured as a result of his actions,
this officer respectfully recommends the defendant be
afforded the opportunity to participate in the Pretrial
1
On appeal, the State raises a procedural challenge to the timing of defendant's
PTI application. Because the issue was not presented to the PTI judge, we
decline to address this argument. R. 2:10-2.
A-0521-17T1
4
Intervention Program and continue on the positive path
he has begun.
Despite the ACDM's recommendation, the prosecutor denied defendant's
admission to PTI. In considering the criteria for enrollment in PTI, the
prosecutor reviewed the factors set forth in N.J.S.A. 2C:43-12(e) and Rule 3:28.
See also Guidelines for Operation of Pretrial Intervention in New Jersey
(Guidelines), Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i)
(2017). The prosecutor found several factors weighed against defendant's
admission to the program, focusing on the offense, the facts of the case, and the
"assaultive and violent nature of [d]efendant's crime." According to the
prosecutor, "[c]onsidering the extraordinarily high number of police officers
being indiscriminately executed in the line of duty, there is a strong public need
for prosecution of this case." Further, the prosecutor explained, "deterring the
assault of police officers is a strong victim and societal interest." The prosecutor
concluded, "[a]dmission into PTI after such a horrifying assault on public
servants would minimize the seriousness of [d]efendant's crime, and perhaps
even encourage more assaults."
Defendant appealed the prosecutor's denial of his PTI application. A
hearing on defendant's PTI request was held on April 6, 2017. During the
hearing, the PTI judge expressed that she might have reached a different
A-0521-17T1
5
determination regarding defendant's application. However, the PTI judge
acknowledged she could not substitute her judgment in reviewing the request.
The judge denied the PTI application, finding the prosecutor considered the
relevant factors and defendant's rejection from PTI was not a patent and gross
abuse of discretion.
Defendant was sentenced on May 18, 2017. A June 6, 2017 judgment of
conviction sentenced defendant to probation for two years.
On appeal, defendant raises the following arguments:
POINT I
THE PROSECUTOR'S DECISION TO OVERRIDE
THE CRIMINAL DIVISION MANAGER'S
RECOMMENDATION IN FAVOR OF ADMITTING
HIGHSMITH TO PTI CONSTITUTED A PATENT
AND GROSS ABUSE OF DISCRETION.
A. The Prosecutor Committed A Clear Error In
Judgment By Refusing To Reconsider Highsmith's
Application In Light Of The Documented Account That
Highsmith Presented Of The Events Leading Up To
The Offense.
B. The Prosecutor Considered Inappropriate
Factors.
C. The Prosecutor's Decision Must Be Reversed
Because Highsmith's Rejection From PTI Clearly
Subverts The Goals Underlying Pretrial Intervention.
A-0521-17T1
6
D. Under The Circumstances Of This Case, There Is
No Validity To The Prosecutor's Belated Procedural
Challenge To Highsmith's PTI Application.
POINT II
IN THE ALTERNATIVE, THE MATTER SHOULD
BE REMANDED TO FURTHER ADDRESS
HIGHSMITH'S CONFLICT-OF-INTEREST CLAIM.
We afford prosecutors "broad discretion to determine if a defendant
should be diverted." State v. K.S., 220 N.J. 190, 199 (2015). Our scope of
review is "severely limited[,]" and we address "only the most egregious
examples of injustice and unfairness." State v. Negran, 178 N.J. 73, 82 (2003)
(internal quotations and citation omitted). A defendant rejected from PTI "must
'clearly and convincingly' show that the decision [to deny admission into PTI]
was a 'patent and gross abuse of . . . discretion.'" K.S., 220 N.J. at 200 (citations
omitted).
However, "[i]ssues concerning the propriety of the prosecutor's
consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State
v. Maddocks, 80 N.J. 98, 104 (1979). If a "'prosecutor's decision was arbitrary,
irrational, or otherwise an abuse of discretion, but not a patent and gross abuse
of discretion,' the reviewing court may remand to the prosecutor for further
A-0521-17T1
7
consideration." K.S., 220 N.J. at 200 (quoting State v. Dalglish, 86 N.J. 503,
509 (1981)).
A prosecutor must set forth reasons for rejecting a defendant's application
for PTI. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A prosecutor "may not
simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at
249 (citations omitted). If "the prosecutor considers inappropriate factors," a
remand is proper. K.S., 220 N.J. at 200.
Here, the prosecutor did not consider all relevant factors regarding
defendant's PTI application. The prosecutor failed to consider the heightened
tensions among the city's residents and the city's police force subsequent to the
shooting deaths of a police officer and another individual two days before this
incident.
Further, the ACDM expressed support for defendant's PTI application.
The ACDM highlighted defendant's completion of various work training
programs to improve his job skills subsequent to his arrest. In examining
defendant's prior arrest record, the ACDM noted defendant's "nominal criminal
history," resulting in only one municipal court conviction. The ACDM believed
defendant should "be afforded the opportunity to participate in [PTI] and
A-0521-17T1
8
continue on the positive path he has begun." The prosecutor did not
acknowledge the ACDM's findings in her report.
Having reviewed the record, we cannot determine whether the
prosecutor's decision was arbitrary or irrational under the unique circumstances
in this case, such that denial of defendant's PTI application constituted a clear
error in judgment. Thus, the appropriate remedy is to remand the matter to the
prosecutor for further consideration of defendant's PTI application.
On remand, the prosecutor shall follow the Attorney General's
supplemental law enforcement directive "Uniform Statewide Procedures and
Best Practices for Conducting Police-Use-of-Force Investigations" (Directive)
to determine if the prosecutor had a conflict of interest in serving as both the
head of the internal affairs unit investigating the officers' use-of-force in this
case and simultaneously prosecuting defendant's criminal case. The Directive
mandates the county prosecutor, within three days of conducting a use-of-force
investigation, to "determine whether any actual or potential conflict of interest
exists that might undermine public confidence in the impartiality and
independence of the investigation." The county prosecutor "shall report the
A-0521-17T1
9
results of the comprehensive conflicts inquiry to the Director."2 The Directive
compels the county prosecutor to update the comprehensive conflicts inquiry so
the Director may "determine whether the interests of justice would best be
served by . . . taking . . . actions as may be needed to ensure the impartiality and
independence of the investigation."
Prior to reviewing defendant's PTI application on remand, based on the
Directive now in effect, the prosecutor shall provide the Director with an
updated "comprehensive conflicts inquiry" to determine whether the use-of-
force investigation in this case requires reassignment of the investigation to
another county prosecutor's office, recusal of the person in charge of the
investigation, or such other action as may be necessary to safeguard the
impartiality of the investigation
Reversed and remanded to the prosecutor for reconsideration of
defendant's PTI application consistent with this opinion. We do not retain
jurisdiction.
2
Pursuant to the Directive, all use-of-force investigations are conducted under
the supervision of the Director of the New Jersey Division of Criminal Justice
(Director).
A-0521-17T1
10