Opinion
DOCKET NO. A-3085-14T3
10-30-2015
STATE OF NEW JERSEY IN THE INTEREST OF J.H.
James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). Respondent J.H. has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FJ-01-0612-15. James P. McClain, Atlantic County Prosecutor, attorney for appellant State of New Jersey (Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). Respondent J.H. has not filed a brief. PER CURIAM
On January 15, 2015, J.H., a juvenile, was involved in an altercation with his father, J.H., Sr., with whom he was then living. According to J.H., Sr., his son assaulted him and took his iPhone. J.H. then left the home and went to reside with his mother, C.D.
Three days later, C.D. drove J.H. back to his father's home to retrieve some items of clothing. Another argument ensued, during which J.H. allegedly refused to return his father's iPhone and threatened to burn down his house. After J.H. and C.D. departed, the police were called, and J.H., Sr. advised them that he wished to sign juvenile complaints against his son relating to both incidents.
Two police officers went to C.D.'s apartment. C.D. directed them to J.H., who initially denied possessing the phone. After J.H. was placed in custody, he told the police that he previously had the phone but disposed of it in a trash can when he stayed overnight at the home of a friend, S.T., on January 15. A third police officer was dispatched to speak with S.T., who confirmed J.H.'s overnight visit. S.T. also confirmed that J.H. possessed his father's iPhone, but stated that J.H. had damaged it. The police again confronted J.H., who purportedly admitted that he had lied and that he had disposed of the phone in a trash can across from S.T.'s residence.
J.H., Sr. signed juvenile complaints against his son alleging assault, theft and damage of his iPhone, and the terroristic threat to burn down his home. The complaints charged J.H. with acts that, if committed by an adult, would constitute third-degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree theft, N.J.S.A. 2C:20-3(a); and the disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a)(1), and criminal mischief, N.J.S.A. 2C:17-3(a)(1).
The Family Part conducted a pre-trial conference on January 29, 2015, that was attended by J.H., J.H., Sr., and C.D. Both C.D. and J.H., Sr., expressed an interest in "dropping the charges." However, the State was not yet prepared to entertain a dismissal, and the court assigned counsel to represent J.H. at the next hearing. Although questions arose whether C.D. and/or J.H., Sr. might be called upon to reimburse the Public Defender's Office for its services, the assistant deputy public defender who was also in attendance advised: "I'll hold off on the reimbursement agreement."
At the next hearing on February 12, 2015, assigned counsel presented the court with "a request for a withdrawal of complaint that's been signed off by my client's father, who is the complaining witness in the matter." In the withdrawal form, J.H., Sr. certified:
that the matters and differences between defendant and myself have been amicably resolved to my full satisfaction. I do hereby respectfully request that the complaint heretofore signed by me . . . be withdrawn and that these proceedings be terminated.J.H., Sr. was placed under oath and, when questioned by the court, confirmed that he did "not wish to pursue the case." Over the State's objection, the court dismissed all charges, with prejudice. This appeal by the State follows.
I certify that I am making this request voluntarily, without any force or duress or promise of reward from defendant or anyone else.
On appeal, the State argues that the court erred in concluding that dismissal was appropriate because the State could not prove its case without the victim's cooperation and testimony. It contends that it could meet its burden through the testimony of the investigating officers, S.T., and J.H.'s damaging admissions. The State asserts that, in dismissing the charges, the court failed to accord the required deference to prosecutorial discretion. We agree, and reverse the order of dismissal on this basis.
In a variety of contexts, we have recognized that "[f]undamentally, a prosecutor is vested with broad discretion in selecting matters for prosecution. A decision to prosecute or not to prosecute is to be accorded judicial deference in the absence of a showing of arbitrariness, gross abuse of discretion or bad faith." State v. Mitchell, 164 N.J. Super. 198, 201 (App. Div. 1978) (reversing trial court order directing the Attorney General to provide defendant with certain enumerated information, including the decision to prosecute him). See also State v. LeVien, 44 N.J. 323, 326-327 (1965) ("It is the prosecution who in the first instance has the discretion" to decide whether or not to prosecute)(citations omitted).
In State v. Hermann, 80 N.J. 122, 128 (1979), the Court held that the trial judge erred in denying defendants' applications for admission into the Pretrial Intervention Program (PTI) where the prosecutor's decision to admit defendants was not "arbitrary or capricious." The Court stated:
We have long held that a prosecutor is vested with broad discretionary powers in the discharge of the manifold responsibilities of his office. This discretion includes both the decision to prosecute an individual whom he has probable cause to believe violated the law, and the converse decision to refrain from prosecuting any such offender.Similarly, in reversing a trial court's order overturning the prosecutor's rejection of a defendant's PTI application, we observed:
[Id. at 127.]
Unquestionably, policy determinations, such as which offenses to aggressively prosecute, fall within the domain of the prosecutor, not the judiciary. This stems primarily from the fact that it is the fundamental responsibility of the prosecutor to decide whom to prosecute. Additionally . . . once such a decision has been made, it is entitled to great deference.
[State v. Kraft, 265 N.J.Super. 106, 116-17 (App. Div. 1993).]
Here, defense counsel stated that, in seeking to withdraw the charges, "clearly, they are working things out as a family between Mom, Dad, and son." The judge may well have been swayed by the laudatory goal of resolving this family dispute amicably without further court intervention. Nonetheless, the court's decision to dismiss the charges, before first ascertaining the State's ability to prove them without the victim's testimony, was premature. Ultimately, it intruded on the prosecutor's discretion to pursue the charges, which the State deems serious enough to warrant prosecution even absent the victim's cooperation. Nothing in the record supports a finding of abuse of discretion, arbitrariness, or bad faith by the State. Accordingly, we vacate the order of dismissal and reinstate the complaint.
In view of our determination, we decline to accept the State's further invitation that we "preclude the Public Defender from charging the parent-victim a fee if and/or when ordered to represent the juvenile . . . and declare such practice contrary to law." Initially, we note that the Public Defender's Office is not a party to this action so that it would be improper to order such relief in its absence. Moreover, the State did not request this relief in the trial court, nor is the factual record on this issue fully developed. "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). There is also no showing that the victim was in fact compelled to execute an agreement reimbursing the Public Defender's Office for its services. Further, any argument that the victim's request to withdraw the charges was motivated by the potential that he would be made to bear the cost of the public defender's services, as opposed to preserving family unity, on this record is purely speculative.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION