Opinion
DOCKET NO. A-2097-14T3
05-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAQUAN A. LOVETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 14-03-0164. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jaquan Lovett pled guilty to third-degree theft and was sentenced to three-years of probation, community service, and the payment of fines and penalties. He appeals from the October 31, 2014 judgment of conviction entered by the trial court. We affirm.
I.
Defendant was charged in an indictment with third-degree theft from the person in violation of N.J.S.A. 2C:20-3(a). He thereafter filed an application for admission into the pre-trial intervention (PTI) program.
By notice dated April 4, 2014, the Somerset County Criminal Division PTI Director denied defendant's application. The PTI Director summarized the defendant's offense, stating that it involved a theft of personal property from a developmentally disabled juvenile victim and included a threat of physical violence, and detailed various reasons for the recommended denial.
The Somerset County Prosecutor's Office (SCPO) subsequently issued a decision concurring with the PTI Director's denial of defendant's application. The SCPO's decision was supported by a summary of defendant's offense and a statement of each of the reasons for the SCPO's decision.
Defendant appealed the SCPO's rejection to the trial court. In a detailed written decision, the court denied defendant's appeal, finding that defendant failed to present evidence demonstrating that the SCPO's decision was unreasonable in light of the PTI guidelines and that there was no showing that the "decision was . . . arbitrary, irrational or otherwise inappropriate."
At oral argument on defendant's appeal to the trial court, the SCPO noted that the codefendant's matter had been resolved and that the court should not consider the effect of defendant's admission into the program on the prosecution of the codefendant under N.J.S.A. 2C:43-12(e)(16) as a factor affecting defendant's admission into PTI.
Defendant pled guilty to third-degree theft, N.J.S.A. 2C:20-3(a), pursuant to a plea agreement. The court sentenced defendant to a three-year probationary term, seventy-five hours of community service, and imposed appropriate monetary penalties. This appeal followed.
On appeal, defendant makes the following argument:
POINT I:
THE REJECTION OF MR. LOVETT FROM PTI CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION REQUIRING REVERSAL AND HIS ADMISSION TO THE PROGRAM. ALTERNATIVELY, THE MATTER SHOULD BE REMANDED FOR THE PROSECUTOR'S RECONSIDERATION.
II.
A prosecutor has wide discretion in making determinations on PTI applications, and those decisions "will rarely be overturned." State v. Baynes, 14 8 N.J. 434, 443 (1997) (quoting State v. Wallace, 146 N.J. 576, 585 (1996)). A court reviews a prosecutor's denial of a defendant's admission into PTI "to check only the most egregious examples of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)). This elevated standard of review stems from "[t]he need to preserve prosecutorial discretion in deciding whether to divert a particular defendant from the ordinary criminal process." Ibid. (alteration in original) (quoting Kraft, supra, 265 N.J. Super. at 111-12). We apply the same standard of review of the PTI denial as the trial court. State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).
A prosecutor's decision denying a defendant's PTI application is afforded great deference. State v. Roseman, 221 N.J. 611, 624 (2015) (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). "[T]he level of deference [given to prosecutors] . . . is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Kraft, supra, 265 N.J. Super. at 111 (quoting State v. DeMarco, 107 N.J. 562, 566 (1987)). "[A] trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor," even if the court may disagree with the prosecutor's decision. Id. at 112 (second and third alterations in original) (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980)).
A prosecutor's recommendation may be reversed only if the defendant can "clearly and convincingly" demonstrate that the prosecutor's decision constitutes a "patent and gross abuse of . . . discretion." Roseman, supra, 221 N.J. at 625 (alteration in original) (quoting Wallace, supra, 146 N.J. at 582); Nwobu, supra, 139 N.J. at 246; State v. Bender, 80 N.J. 84, 90 (1979). A patent and gross abuse of discretion represents "a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention,'" Wallace, supra, 146 N.J. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)), and exists if the prosecutor's decision was not premised upon a consideration of all relevant factors, was based upon a consideration of "irrelevant or inappropriate factors," or amounted to a "clear error in judgment." Nwobu, supra, 139 N.J. at 247 (quoting Bender, supra, 80 N.J. at 93); State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014), certif. denied, 222 N.J. 18 (2015).
A "patent and gross abuse of discretion," however, "is more than just an abuse of discretion as traditionally conceived." Wallace, supra, 146 N.J. at 582-83. "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 Pretrial Intervention." Bender, supra, 80 N.J. at 93. Mere judicial disagreement with the prosecutor's determination does not establish a patent and gross abuse of discretion. State v. Motley, 369 N.J. Super. 314, 323 (App. Div. 2004).
The goals of the PTI program are:
(1) to enable defendants to avoid ordinary prosecution by receiving early rehabilitative services expected to deter future criminal behavior; (2) to provide defendants who might be harmed by the imposition of criminal sanctions with an alternative to prosecution expected to deter criminal conduct; (3) to avoid burdensome prosecutions for "victimless" offenses; (4) to relieve overburdened criminal calendars so that resources can be expended on more serious criminal matters; and (5) to deter future criminal behavior of PTI participants.
[Nwobu, supra, 139 N.J. at 247; accord N.J.S.A. 2C:43-12(a); Pressler & Verniero, current N.J. Court Rules, Guideline 1 on R. 3:28 (2016).]
Based upon our review of the record, and substantially for the reasons set forth in the trial court's written decision, we are convinced that the prosecutor's decision rejecting defendant's application did not constitute a patent and gross abuse of discretion. We add the following brief comments regarding defendant's arguments on appeal.
We reject defendant's argument that the denial of his admission into PTI constituted a patent and gross abuse of discretion because the prosecutor failed to consider that defendant suffered from certain cognitive disabilities. Defendant failed to provide any documentation regarding his claimed disabilities to the PTI Director and SCPO prior to their respective decisions.
The records regarding defendant's disabilities were provided for the first time to the trial court on defendant's appeal from the SCPO's decision. The court, however, fully considered the evidence that defendant suffered from certain disabilities, but nonetheless concluded the SCPO's decision did not constitute a patent and gross abuse of discretion. We are not persuaded that the evidence regarding defendant's disabilities sufficiently undermined the numerous, varied, and valid grounds for the SCPO's decision and clearly and convincingly established that the SCPO's decision constituted a "patent and gross abuse of discretion." Roseman, supra, 221 N.J. at 625.
Defendant also challenges the SCPO's finding that defendant's crime included a threat of violence or assaultive behavior. The victim of the offense reported that immediately after taking possession of the stolen sneakers, defendant threatened to "beat up" the victim if he attempted to obtain the return of the sneakers. Although defendant disputes the victim's version of the events, the SCPO was entitled to rely upon the victim's statements regarding defendant's threat of violence in making its PTI determination. See Lee, supra, 437 N.J. Super. at 568 (finding that "[a] prosecutor is . . . free to disbelieve statements presented by defense witnesses and to . . . credit the anticipated contrary testimony of the State's witnesses" in making a PTI determination).
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION