Opinion
DOCKET NO. A-4127-15T3
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JAMES L. OTT, Defendant-Respondent.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Charles J. Wettstein, Assistant Prosecutor, of counsel and on the brief). Michael J. Silvanio, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fuentes, Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Accusation No. 15-12-1190. Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (Charles J. Wettstein, Assistant Prosecutor, of counsel and on the brief). Michael J. Silvanio, attorney for respondent. PER CURIAM
After waiving his right to indictment by a grand jury, defendant James L. Ott was charged in a single-count accusation with fourth-degree recklessly creating a risk of widespread injury or damage, N.J.S.A. 2C:17-2c. The alleged victim is Durand Glass Manufacturing Company (Durand), where defendant was employed for twenty years prior to the incident giving rise to the charge. The trial court admitted defendant into the Pretrial Intervention (PTI) Program, with the consent of the vicinage PTI Director, but over the objection of the Cumberland County Prosecutor's Office (CCPO). The State appeals, arguing that the trial court erred when it found the CCPO's decision constituted a patent and gross abuse of discretion. For the reasons that follow, we affirm.
I.
In his comprehensive sixteen-page written opinion, Judge Robert G. Malestein accepted the State's version of the offense, which he recounted as follows:
[D]efendant was employed by Durand Glass, a glass company which employs almost 1,000 people in the local area. The two main ingredients in the production of glass are silica sand and soda ash. Both the sand and the soda ash are delivered in covered rail cars where they are brought into a batch house and unloaded into a silo. There are various checks and balances to ensure that the appropriate materials in the appropriate quantity are precisely measured and mixed since that mixture is delivered to the furnaces where they are melted into molten glass and ultimately formed into a finished product. The data and information is loaded into a computer to track the product.
[D]efendant reported for work an hour and ten minutes early on the evening of February 13, 2014. The individual assigned to the area loaded the first compartment of three
compartments of the sand car into the sand silo. Instead of loading the sand from the second compartment into the sand silo, [] defendant loaded the sand into the soda ash silo. This was clearly a mistake. Defendant thereafter allegedly tried to hide the error by logging into the computer and entering data to indicate that the third compartment of the soda ash car was loaded into the soda ash silo. Later that same shift he then unloaded the third compartment of the soda ash car into the proper silo, covering up the sand that he had placed there before and moved the rail cars to the wrong areas to further hide his mistake. He thereafter left for the day following the completion of his shift.
The next operator started his shift and realized that the wrong mixture had occurred which resulted in glass being made which it was not qualified to form. The molten glass therefore had to be discarded into the basement in molten form. Because of the defendant's errors, regular plant production needed to cease and teams of workers needed to be deployed to keep the glass flowing. The State further alleges that had they not kept the glass flowing, there could have been a possible furnace breach, leakage of molten glass, fire and complete furnace collapse.
The investigation of the incident performed by Durand Glass revealed that [] defendant knew of his mistake and it was their opinion that he tried to cover it up. The employer alleged that [] defendant had been changed from day shift to night shift and he was mad about that change. The [CCPO] concedes that this motive was not developed and since he was not charged with a purposeful crime, defendant's actions in this matter could be considered a mistake as opposed to a purposeful event. Nevertheless, the [CCPO] submits that the evidence was "overwhelming" that [defendant knew] he made a mistake and
took steps to cover it up. [The CCPO] considered [the act of covering his actions up] to be "egregious."
Defendant was sixty-six years old at the time he applied for admission into PTI in December 2015. He had been married to his current wife for approximately fifteen years and has four adult children. As noted, he had been employed by Durand as a machine operator for twenty years before being terminated as a result of this incident. He has no prior arrest record. Defendant has an extensive history of service to the community. Specifically, he has served as a volunteer firefighter and EMT for Upper Deerfield Township for forty-five years, and as President, Treasurer, and a coach for the North Cumberland Little League for twenty-five years. He is a member of a local gun club, and has hosted Boy Scout troops at the club's site. He was a first responder in New York City following the tragic events of September 11, 2001, for which he received a commendation from Durand's president.
We note a discrepancy in the record as to this point. Defendant's PTI report indicates he has four adult children. However, defendant's brief, and the trial court's written decision, both refer to defendant as a "married man with six children." This discrepancy is not material to our ultimate determination. --------
In February 2016, the vicinage's PTI Director recommended admitting defendant into PTI. The CCPO, however, rejected defendant's application, thereby overriding the Director's recommendation. In its March 1, 2016 letter memorandum, the CCPO found the following factors set forth in N.J.S.A. 2C:43-12(e) warranted defendant's rejection: factor one, "[t]he nature of the offense"; factor two, "[t]he facts of the case"; factor fourteen, "[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 factor seventeen, "[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". Notably, the letter did not address any of defendant's personal history or background, or cite any factors that might weigh in favor of PTI.
In rejecting defendant's application, the State conceded that his action in loading sand into the soda ash bin "was a mistake rather than a purposeful event." The State emphasized, however, that defendant's conduct in covering up his mistake resulted in Durand incurring five to seven days of lost production, equipment damage, and substantial financial costs, which could have been averted had defendant given timely notice of his mistake. The CCPO concluded:
Allowing [] defendant to participate in the PTI program would only serve to minimize and deprecate the serious nature of his actions. The harm done by abandoning criminal prosecution would send a message that to take
overt steps to cover up a mistake and fail to report it even when that mistake threatens the health and safety of others will only result [in] a slap on the wrist. This case needs to be prosecuted in hope of returning a conviction to demonstrate that this is no[t] so.
As provided in Rule 3:28, defendant appealed the denial of his PTI application to the Criminal Part Judge assigned to the case. In his written decision, Judge Malestein granted defendant's request for admission into PTI. The judge began his analysis by acknowledging the enhanced level of deference that is accorded a prosecutor's decision denying a defendant's entry into PTI. The judge noted that the scope of review is "severely limited" (quoting State v. Bender, 80 N.J. 84, 89 (1979)), and that "[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'" (quoting State v. Roseman, 221 N.J. 611, 625 (2015)).
In overturning the prosecutor's decision, Judge Malestein found that while a presumption normally exists that the prosecutor considered all relevant factors, here "there [was] a clear lack of any evidence to suggest that the Prosecutor considered the unique characteristics of [defendant] when making her determination." The judge also found there was "nothing before the [c]ourt to support the assertion . . . that the public need for prosecution outweighs the value of supervisory treatment for this defendant." The judge noted defendant was charged with a fourth-degree crime, which carried a presumption against his incarceration. Additionally, the facts here established that defendant's criminal activity had its genesis in a "mistake in the workplace."
Judge Malestein independently reviewed each of the seventeen statutory factors and determined "the balancing of the factors leads to the inexorable conclusion that the benefit to society by channeling this defendant into supervisory treatment is substantial and overwhelming." The judge also considered the significant negative impact a criminal conviction would have on defendant's status as a volunteer firefighter, EMT, Little League coach, and organizer of Boy Scout activities. Ultimately, the judge concluded this was "the rarest of instances [where] defendant has clearly and convincingly established that the Prosecutor's decision constitutes a patent and gross abuse of discretion."
II.
"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.'" Roseman, supra, 221 N.J. at 621 (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). 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 State v. Watkins, 193 N.J. 507, 520 (2008)).
The scope of our review of a PTI rejection is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). "'Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options.'" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)). Accordingly, courts give prosecutors "broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015). Thus, on appellate review, PTI decisions are given "enhanced deference." State v. Brooks, 175 N.J. 215, 225 (2002).
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" Roseman, supra, 221 N.J. at 621 (alteration in original) (quoting Watkins, supra, 193 N.J. at 520).
As Judge Malestein correctly recognized, "[i]n order to overturn a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (citation and internal quotation omitted). "A patent and gross abuse of discretion is defined as a decision that has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Ibid. (citation and internal quotation omitted). An abuse of discretion is manifested where it can be proven "that the [PTI] 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 in judgment[.]'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014), (quoting Bender, supra, 80 N.J. at 93, certif. denied, 222 N.J. 18 (2015).
Applying these principles, we agree with Judge Malestein that the prosecutor failed to consider relevant factors. Specifically, the prosecutor failed to consider: (1) that defendant was then sixty-seven years of age, N.J.S.A. 2C:43-12(e)(3); (2) defendant's amenability to rehabilitation, as evidenced by the Program Director's recommendation and defendant's willingness to waive indictment, thereby saving the time, effort and cost associated with grand jury presentment, N.J.S.A. 2C:43-12(e)(6); (3) the fact that the offense was not "part of a continuing pattern of anti-social behavior[,]" N.J.S.A. 2C:43-12(e)(8), nor "of an assaultive or violent nature[,]" N.J.S.A. 2C:43-12(e)(10); (4) defendant's complete lack of any criminal record, N.J.S.A. 2C:43-12(e)(9), "history of the use of physical violence toward others[,]" N.J.S.A. 2C:43-12(e)(12), or involvement with organized crime, N.J.S.A. 2C:43-12(e)(13); and (5) that no other people were involved in the crime charged, N.J.S.A. 2C:43-12(e)(15), whose prosecution would be adversely affected by defendant's admission into PTI, N.J.S.A. 2C:43-12(e)(16).
Notably, although Durand allegedly suffered substantial financial loss as a result of defendant's wrongful conduct, in its "victim-impact information form" Durand advised the CCPO that it did not wish the judge to order defendant to pay restitution. The victim's willingness to forego restitution bears relevance to "[t]he needs and interests of the victim[,]" N.J.S.A. 2C:43-12(e)(7). Finally, as with the other factors previously mentioned, the CCPO completely failed to address any of defendant's unique personal characteristics, including his employment history and many long years of active community involvement, which weighed in favor of his admission into PTI.
Like Judge Malestein, we are indeed mindful that we are not to substitute our judgment for that of the prosecutor in determining whether to admit a defendant into PTI. See Kraft, supra, 265 N.J. Super. at 111. However, we note that notwithstanding the seriousness of the offense, PTI has nonetheless been found warranted in appropriate cases. Cf. Roseman, supra, 221 N.J. at 626-30 (admitting defendant mayor charged with second-degree official misconduct into PTI over prosecutor's objection); In re Cohen, 220 N.J. 7, 13 (2014) (discussing license suspension of attorney who was admitted to PTI after pleading guilty to endangering the welfare of a child by possessing child pornography). Moreover, the Court "has warned that conditioning a defendant's admission to PTI solely on the nature of his or her offense 'may be both arbitrary and illogical' and that '[g]reater emphasis should be placed on the offender than on the offense.'" Brooks, supra, 175 N.J. at 224-25 (quoting State v. Leonardis, 71 N.J. 85, 102 (1976)).
We also recognize that "[o]rdinarily, the appropriate remedy for an inadequate statement of reasons by the prosecutor would be remand for further consideration of a defendant's PTI application, and the opportunity to provide an adequate factual basis for the prosecutor's findings." Roseman, supra, 221 N.J. at 629. However, where, as here, defendant is just shy of sixty-eight years old and now unemployed, and the "circumstances show clearly and convincingly that there has been a patent and gross abuse of discretion by the prosecutor which constituted a clear error in judgment that will subvert the goals underlying [PTI], remand is inappropriate." Id. at 630 (citation and internal quotation marks omitted). Accordingly, we see no cause to disturb Judge Malestein's well-reasoned written decision to admit defendant into 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