Opinion
DOCKET NO. A-4102-14T2
03-31-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. BRIAN S. GUNDY, Defendant-Respondent.
Jason M. Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Barbara E. Ungar argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-10-1186. Jason M. Boudwin, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Boudwin, of counsel and on the brief). Barbara E. Ungar argued the cause for respondent. PER CURIAM
The State of New Jersey appeals from the Law Division's order admitting defendant Brian S. Gundy into pretrial intervention (PTI) over the prosecutor's objection. We affirm.
The facts surrounding defendant's arrest and his application for PTI are generally not in dispute. They can be summarized as follows.
A New Jersey State Trooper stopped defendant while he was driving a motor vehicle, bearing Texas license plates, because he was using his cell phone in violation of N.J.S.A. 39:4-97.3. While questioning defendant, the trooper detected an odor of marijuana, which prompted his request to search defendant's vehicle. Defendant not only consented but also advised the trooper he had a handgun in the car. The trooper searched the vehicle, recovered the weapon, placed defendant under arrest, and retrieved two bags of marijuana from defendant. He charged defendant with second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), as well as a non-indictable controlled dangerous substance (CDS) offense and motor vehicle infractions. In October 2014, a grand jury indicted defendant for the same weapons offense.
The charges were possession of less than 50 grams of marijuana, a disorderly person offense, N.J.S.A. 2C:35-10(a)(4); use of a hand-held wireless telephone while operating a motor vehicle, N.J.S.A. 39:4-97.3; driving without a license, N.J.S.A. 39:3-10; and operation of a motor vehicle while in possession of a controlled substance, N.J.S.A. 39:4-49.1.
Defendant had legally purchased the weapon recovered from his vehicle in Georgia in 2008. At the time of his arrest defendant was in the process of moving from Texas to New York, temporarily staying in New Jersey, because he secured a new position as an educator in New York City. As a result of his arrest and incarceration, defendant lost his new employment opportunity.
After his arrest, defendant, who was thirty years old and without any prior criminal history, applied for admission to PTI. The PTI director recommended his admission despite the seriousness of the pending charge and the presumption against admission for second-degree offenders. In her written recommendation, the director stated that, while the rebuttable presumption existed, it was to be weighed against "factors [that] should . . . be identified on an individual basis to determine if the value of supervisory treatment is outweighed by the imposition of punitive measures." She noted that defendant had no prior criminal history, was college educated, and was employed for the preceding five years as a music teacher before leaving Texas "to further his career." The director believed that defendant's incarceration for over thirty days, the loss of his new teaching position, and his father's need to hire a lawyer for him, together with a lengthy period of PTI, would "be sufficient enough for this defendant to effect the necessary behavioral change and show that future criminal behavior will not occur." In closing, the director noted that she reviewed "14 letters referencing the defendant's good character" and that "[a] conviction in this case would have consequences beyond punishing the defendant's behavior and profoundly affect his ability to pursue his career."
As stated in the guidelines promulgated under Rule 3:28,
A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.
[Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) following R. 3:28 at 1193 (2016).]
The letters consisted of testimonials from defendant's academic and professional associates as well as from community leaders, attesting to his good character, the quality of his work as an educator, and his philanthropic efforts to improve the lives of children in his community.
Despite the director's recommendation, the prosecutor rejected defendant's application. In his rejection letter, the prosecutor first noted that a memo issued by the New Jersey Attorney General, entitled "Clarification of 'Graves Act' 2008 Directive with Respect to Offenses Committed by Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful" (Memo), was not applicable to defendant's case, stating:
Memorandum from John J. Hoffman, Acting Att'y Gen., to Elie Honig, Dir., Div. of Criminal Justice (Sept. 24, 2014), http://www.state.nj.us/oag/dcj/agguide/directives/Graves-Act-clarification-2014.pdf.
That memorandum . . . has no bearing on the case at hand, as the defendant was a New Jersey resident at the time of the offense and the possession of the gun in Texas, the state from which defendant had relocated, under similar circumstances would not have been legal either. See Tex. Penal Code § 46.02; Tex. Health & Safety Code § 481.121.The prosecutor delineated the reasons for disagreeing with the director, setting forth his view as to each of the statutory criteria for admission under N.J.S.A. 2C:43-12(e). The prosecutor began by citing the facts surrounding defendant's arrest. He addressed defendant's motivation and age, and observed that defendant had "indicated in the PTI Report that he would be a good candidate for PTI because he has dedicated his life to being a public servant and living in a positive way" and that "the present offense could seriously impact his career." However, the prosecutor found fault with defendant not admitting to CDS use when interviewed for PTI, as he was arrested with and admitted to smoking marijuana. He also noted that, because defendant did not have a criminal record, history of assaultive behavior, or involvement with organized crime that subjected him to prior supervisory treatment, there was no way to predict how defendant would respond to PTI. The prosecutor found that, although there was "no specific victim in this case, . . . society had a strong interest in deterring . . . such conduct." He concluded that defendant's crime had the potential for "injurious consequences" because he "was driving a car two hours after having smoked marijuana within arm's reach of a loaded handgun." The prosecutor found the harm to society would be outweighed by admitting defendant to PTI and that the value of supervisory treatment was therefore outweighed by the public's need for prosecution because
[c]hanneling [defendant] into the PTI program would harm society by sending a message which would minimize and trivialize the severity of defendant's actions. Any benefit to the defendant from acceptance into the PTI program would be far outweighed by the harmful message sent to society that such offenses merit a diversionary program.
Although the State did not include a copy of the cited statutes in its appendix, the two acts the prosecutor cited provide in pertinent part as follows:
Sec. 46.02. Unlawful Carrying Weapons.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun . . . if the person is not:
. . . .
(2) inside of . . . a motor vehicle . . . that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle . . . that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
. . . .
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
[Tex. Penal Code Ann. § 46.02 (West 2013) (emphasis added).]
Sec. 481.121. Offense: Possession of Marihuana.
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less . . . .
[Tex. Health & Safety Code Ann. § 481.121 (West 2013).]
Citing the statutory factors and our holding in State v. Kraft, 265 N.J. Super. 106 (App. Div. 1993), the prosecutor concluded:
In rejecting defendant's application, the prosecutor relied on factors one, N.J.S.A. 2C:43-12(e)(1) ("[t]he nature of the offense"); two, N.J.S.A. 2C:43-12(e)(2) ("[t]he facts of the case"); seven, N.J.S.A. 2C:43-12(e)(7) ("[t]he needs and interests of the victim and society"); ten, N.J.S.A. 2C:43-12(e)(10) ("[w]hether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior"); fourteen, N.J.S.A. 2C:43-12(e)(14) ("[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution"); and seventeen, N.J.S.A. 2C:43-12(e)(17) ("[w]hether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program").
While the defendant has no prior criminal record and his actions did not constitute a continuing pattern of antisocial activity, the seriousness of the offense and the public need for prosecution outweighs the positive factors that have been presented. [citation omitted] Therefore, the State must reject [defendant] from PTI.
In response to the prosecutor's rejection, defendant filed a motion seeking a court order permitting his admission into PTI. Judge Alberto Rivas considered the parties' written submissions and oral arguments presented on February 13, 2015. On April 30, 2015, the judge entered an order directing defendant's admission into PTI and explained the court's reasons in a thorough and comprehensive written decision.
In his decision, Judge Rivas reviewed the procedural history of defendant's arrest, PTI application, and indictment. He then noted that, in September 2014,
the Attorney General issued [the Memo,] addressing the discretion prosecutors have in handling cases involving out-of-state residents arrested in New Jersey on gun possession charges. The Memo states, "[I]n most of these cases, imprisonment is neither necessary nor appropriate to serve the interests of justice and protect public safety." [citation omitted] The Memo identified admission to the PTI program as an option, followed by an offer of a non-custodial probationary sentence.Judge Rivas set forth the facts surrounding defendant being stopped by the trooper and the search of his vehicle, including his volunteering the location of the handgun. He discussed defendant's background, highlighting his education and employment history as an educator teaching music to children, and his prior position as a chief executive officer of a metropolitan school system's marching band.
The judge turned to the law applicable to the court's evaluation of a defendant's application for admittance into PTI over a prosecutor's objection. He began by discussing the guidelines set forth in Rule 3:28 and the prosecutor's obligation to provide a specific statement of reasons justifying a decision to reject an application for PTI.
The Rule incorporates guidelines to be followed in consideration of PTI applications. Guideline 3 incorporates by reference the factors identified in N.J.S.A. 2C:43-12(e) and adds additional factors to be considered. See Pressler & Verniero, supra, at 1191-93.
Judge Rivas acknowledged the limited nature of judicial review of a prosecutor's rejection based on the "enhanced deference" to which the decision to admit or reject is entitled. Citing the Supreme Court's opinion in State v. Watkins, 193 N.J. 507, 520 (2008), the judge stated it was a defendant's burden to "clearly and convincingly establish" that a prosecutor's decision rejecting an application was a "patent and gross abuse of discretion." Quoting State v. Nwobu, 139 N.J. 236, 247 (1995), Judge Rivas set forth the factors a defendant must prove in order to permit his entry in to the program despite a prosecutor's rejection. He stated a defendant must prove the denial: "(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 of judgment." If proven, an abuse of the prosecutor's discretion would "be manifest."
The judge addressed each of the factors discussed by the prosecutor in his rejection letter. He first found the prosecutor "conflated" his consideration of factors one and two, and disagreed with the prosecutor's reliance on the nature of the charge. The judge noted that in addition to being a second-degree offense it was also a "Graves Act" offense, N.J.S.A. 2C:43-6(c), which does not always require a defendant be sentenced to that Act's mandatory terms of incarceration and parole ineligibility because it includes "the so-called safety valve provision" that permits either a probationary sentence or a greatly-reduced mandatory minimum period of incarceration, N.J.S.A. 2C:43-6.2.
The safety valve provided for in N.J.S.A. 2C:43-6.2, allow[s] the trial courts to exercise greater discretion sentencing first-time firearms offenders, where the imposition of the mandatory minimum terms required by the Graves Act were deemed to be "unnecessarily and unproductively harsh." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2:43-6.2 (2014)).--------
. . . .
In State v. Watson, 346 N.J. Super. 521 (App. Div. 2002), a Graves Act case, we referenced the sentence options when a prosecutorial waiver is granted: "a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2(b)(2)." Id. at 535.
[State v. Nance, 442 N.J. Super. 268, 272-73 (App. Div. 2015), certif. granted, 224 N.J. 124 (2016).]
The judge found the prosecutor did not engage in a sufficient analysis of the factors for PTI admission relating to the nature of the offense. Rather, the court concluded, the prosecutor demonstrated "[a] reflexive reliance simply on the grade of the offense without an individualized analysis of the facts[, which was] contrary to the procedures to be followed in assessing an individual's suitability for admission into PTI."
As to factor two, the judge found the prosecutor did not perform a "qualitative or substantives evaluation . . . [as to] why the particular facts in this case militate[d] against admission to PTI," especially when defendant cooperated with police, consented to the search of his vehicle, and volunteered the location of the weapon. The judge, relying on the Supreme Court's decision in State v. Leonardis, 71 N.J. 85 (1976), stated the prosecutor's failure to consider these facts was contrary to the requirement that "consideration of the factors [is to be made] with an eye as to the particular traits and characteristics of [defendant]." He concluded the prosecutor should have "[f]ocus[ed] . . . on the individual rather than the offense."
Judge Rivas also took issue with the prosecutor's conclusion as to factor seven that "the needs of society weigh[ed] heavily in favor of rejecting" defendant's application. The judge concluded that the prosecutor's "one size fits all approach," relying solely on the seriousness of the offense, again ignored the individualized assessment required by the applicable guidelines. The judge stated: "There is a deficiency in the [prosecutor's] approach to this matter in [his] failure to indicate how, in this particular instance, under these circumstances, and involving this particular defendant, society['s] needs are undermined by allowing [defendant's] admission in PTI."
The judge found the prosecutor's reliance on factor ten to be unsupported by the facts. According to the judge, the prosecutor's conclusion that defendant's behavior created a potential for injurious consequences could not be sustained absent any evidence defendant was under the influence while operating his vehicle — there were no sobriety field tests — or that defendant was about to commit some crime involving a threat of violence.
Judge Rivas observed that as to factors fourteen and seventeen, the prosecutor ignored the Attorney General's recognition in the Memo that cases such as defendant's should not be treated as Graves Act violations, especially where "[n]othing about the circumstances . . . point[ed] to any evidence that [defendant] had the purpose to use the weapon unlawfully in this State." The judge disagreed with the prosecutor's conclusion that somehow PTI "minimize[d defendant's] actions[, as it] is the equivalent of admission into a probationary sentence with the specter of criminal prosecution hanging over the head of [defendant] like the Sword of Damocles were he to violate any condition of PTI." He concluded by finding that, considering defendant's history and background, all of his positive references and achievements, and the time he already spent in jail, there was "no tangible benefit to society" in denying defendant's application.
The judge also rejected the prosecutor's claim that, because defendant "has never been subject to supervisory treatment[,] there is no way to tell whether he would be conducive to change if given the opportunity." The judge pointed out that is true for any PTI applicant who does not have a criminal record, and found "the proffered rationale [to be] specious."
The court concluded that the prosecutor's rejection unduly relied upon the factors cited by the prosecutor without giving "due and proper weight to all the positive factors submitted by [defendant]," which led "the court to conclude that there exist[ed] clear and convincing evidence that the [prosecutor] abused [his] discretion in denying [defendant] admission into PTI."
The judge entered the court's order directing defendant's admission into PTI. This appeal followed.
On appeal the State argues:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING DEFENDANT INTO PTI OVER THE STATE'S OBJECTION, BECAUSE DEFENDANT FAILED TO SHOW THAT THE PROSECUTOR'S REJECTION AMOUNTED TO
A PATENT AND GROSS ABUSE OF DISCRETION.
POINT II
THE TRIAL COURT'S COMMENTS DEMONSTRATE UNAMBIGUOUSLY THAT THE TRIAL COURT DOES NOT WANT DEFENDANT TO BE CONVICTED; IN THE EVENT THAT THIS COURT REVERSES THE TRIAL COURT ORDER ENROLLING DEFENDANT INTO PTI, THE MATTER SHOULD BE REMANDED TO A DIFFERENT JUDGE TO AVOID THE APPEARANCE OF IMPROPRIETY.
We have considered the State's arguments in light of our review of the record and applicable legal principles. We affirm essentially for the reasons stated by Judge Rivas in his thoughtful written decision. We add only the following brief comments.
"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. Roseman, 221 N.J. 611, 621 (2015) (quoting Nwobu, supra, 139 N.J. at 240). Accordingly, "a PTI determination requires that the prosecutor make an individualized assessment of the defendant considering his or her 'amenability to correction' and potential 'responsiveness to rehabilitation.'" Id. at 621-22 (quoting Watkins, supra, 193 N.J. at 520).
A prosecutor's decision to deny a defendant's PTI application is a patent and gross abuse of discretion if the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a clear error in judgment. Additionally, an abuse of discretion is patent and gross if it is shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].
[Id. at 627 (alteration in original) (citations omitted).]
In a prosecutor's consideration of an application for PTI by a second-degree offender, he or she is entitled to consider, among other factors, the presumption against admission for this class of offender. See id. at 622. However,
[e]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur. When a statutory presumption against PTI applies, as here, a criminal defendant can show that PTI is nonetheless warranted through facts or materials demonstrating the defendant's amenability to the rehabilitation process. To overcome the statutory presumption against PTI the defendant must show[] compelling reasons justifying . . . admission, and establish[] that a decision against enrollment would be arbitrary and unreasonable. Presumptions against PTI reflect an assumption that certain defendants have committed crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are presumptively unavailable. Accordingly, this Court has stated that overcoming these presumptions requires
showing something extraordinary or unusual about the defendant's background.
[Id. at 622-23 (alterations in original) (emphasis added) (citations omitted).]
Applying these principles, we conclude that defendant proved the prosecutor committed a patent and gross abuse of discretion because "the prosecutorial error complained of . . . clearly subvert[ed] the goals underlying" PTI, id. at 627 (citation omitted), by essentially ignoring the evidence of defendant's individual qualities and his amenability to supervisory treatment based on his background, and relying solely on the nature of the offense to justify his exclusion from PTI.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION