Opinion
DOCKET NO. A-4048-11T4
03-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL A. WARNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-08-01069.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After a bench trial, defendant Michael A. Warner appeals from the conviction of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a). He argues that the State presented insufficient evidence of guilt and that he should have been admitted to the Pretrial Intervention Program (PTI), pursuant to Rule 3:28, post-conviction. We disagree and affirm.
Defendant and the victim began dating in 2006 and lived together in 2008 in a home titled in the victim's name. At the victim's request, defendant moved out of the home several months later at the end of 2008. They still engaged in sexual relations from time to time and exchanged email and text messages frequently. The victim changed the locks on most of the doors, but due to the cost, she did not change the lock to the front door. Defendant assured the victim that he did not have a key to the front door of the home. Nonetheless, defendant's text messages made clear that he did enter the home at least once during the daytime to do laundry. He generally asked for permission to enter the home.
On February 21, 2009, the victim cancelled plans to go to Atlantic City with defendant and told him she was at work. Instead, she met another man. The man drove to the victim's home late that night. The man parked his car in the victim's driveway and the victim and her date proceeded to the living room where they were kissing. At approximately 2 a.m., after seeing two cars in the driveway, defendant, who lived almost two hours away, entered the victim's living room. He carried a loaded gun and threatened to kill the victim. After a struggle between the two men, as defendant was propelled out of the door, the victim heard the gun discharge.
The victim obtained a temporary restraining order that was later dismissed by another judge who found that she did not prove defendant did not have permission to enter the home. This finding is not controlling in this criminal case. See State v. Brown, 394 N.J. Super. 492 (App. Div. 2007).
Defendant was indicted for burglary, N.J.S.A. 2C:18-2 (count one); aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count two) and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three).
The trial judge found that defendant knew that the victim did not want him in her home without her permission. He found defendant guilty of criminal trespass only and allowed defendant to apply to PTI post-verdict. The judge then upheld the PTI director's denial of admission based on the threat of violence intrinsic in bringing a loaded gun to the victim's home in the middle of the night and discharging it. Defendant was sentenced to probation for two years.
On appeal defendant raises the following two issues:
POINT I: DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE STATE FAILED TO PROVE CRIMINAL "CULPABILITY" BEYOND A REASONABLE DOUBT, AND BECAUSE THE TRIAL COURT FOUND DEFENDANT GUILTY OF CRIMINAL TRESPASS ONLY BECAUSE HE WAS "NOT INNOCENT" OF BURGLARY.
POINT II: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S POST-VERDICT MOTION TO BE ADMITTED INTO PTI.
I
We will not interfere with the findings of a judge sitting without a jury if those findings are based upon substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). "A disagreement with how the . . . judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." State v. Elders, 192 N.J. 224, 245 (2007).
Defendant argues that the judge did not find the required element of knowledge. To be guilty of criminal trespass, a defendant must enter a building "knowing that he had no right to enter . . . at that time." State v. Wickliff, 378 N.J. Super. 328, 338 (App. Div. 2005).
The judge found that defendant was "trying desperately to get back into a relationship with" the victim. The judge found credible the victim's father's testimony that defendant told him that defendant saw the victim with another man through the sliding glass door to the living room, became angry and entered the house with a gun.
The judge found the time of day very important with regard to defendant's knowledge that he had no right to enter the home. He stated that the victim told defendant to move out and changed the locks. The judge noted that the fact that defendant had entered the home without permission one afternoon to do laundry did not mean he did not know that the victim did not want him entering after two in the morning when she had a visitor.
The judge's findings were based on sufficient credible evidence and we therefore affirm.
II
Defendant also argues that the judge should have ordered his admission to the PTI program over the objection of the program director and the State. The judge allowed defendant to apply to PTI after the verdict over the objection of the State, although the program anticipates application prior to trial. State v. Moraes-Pena, 386 N.J. Super. 569, 578 (App. Div.) certif. denied, 188 N.J. 492 (2006) ("[Rule 3:28] contemplates that the issue concerning enrollment into PTI shall be resolved before or at the pretrial conference and, in any event, before a plea or verdict.").
Legislatively established by N.J.S.A. 2C:43-12(e), and implemented by our Supreme Court pursuant to Rule 3:28, PTI is a discretionary program. A defendant's admission into PTI requires a positive recommendation from the program director and also the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). The program director and the State are to be guided by seventeen factors enumerated in the PTI statute. N.J.S.A. 2C:43-12(e)(1) to (17).
[A] PTI director's decision whether to admit a defendant to PTI must be evaluated according to the standard of review set forth in the plain language of Rule 3:28, Guideline 8. Thus, in order to overturn the PTI director's decision, the defendant must establish 'arbitrary [or capricious] action on the part of the [p]rogram [d]irector which would constitute an abuse of the discretion vested in him.'
[State v Lopes, 289 N.J. Super. 460, 478 (App. Div. 1996) (alterations in original) (internal citation omitted).]
We have not been provided with a copy of the director's PTI denial decision, or the State's letter objecting to defendant's admission, although both were marked into evidence. The State also supplied proof of the victim's need for psychiatric treatment after the trauma of the incident. The judge based his decision on his review of the PTI director's reasons without mention of the reasons supplied by the State. We will therefore confine ourselves to those reasons as restated by the judge:
First, that the offense committed was either committed with violence or the threat of violence against another person.
The second reason was that admission to PTI would deprecate the serious nature of the offense.
The third would be the needs and interest of the victim and/or society, that those needs
would not be met by a PTI enrollment of the defendant.
And the fourth reason given was that the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.
The judge stated that defendant was in the victim's home at 2:30 a.m. with a gun and "a shot rang out and without question, this could have very easily been a homicide case." He commented that some of the inconsistencies in the victim's various versions of the events had caused him to find defendant not guilty of the more serious charges, but that he found defendant's criminal behavior contained the threat of violence and was "egregious." Citing the applicable standard of review, the judge found that the PTI director's decision was not an arbitrary or capricious abuse of discretion. We agree that the stringent standards for reversing the denial of a PTI admission are not met in this case.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION