STATE OF NEW JERSEY VS. DAVONNE HORTON(15-07-1006, HUDSON COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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.
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-4462-15T3
    
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    DAVONNE HORTON,
    
         Defendant-Appellant.
    _________________________________________
    
                  Argued July 6, 2017 – Decided July 18, 2017
    
                  Before Judges Yannotti and Haas.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Indictment No.
                  15-07-1006.
    
                  Michael   Denny,   Assistant   Deputy   Public
                  Defender, argued the cause for appellant
                  (Joseph E. Krakora, Public Defender, attorney;
                  Mr. Denny, of counsel and on the brief).
    
                  Frances Tapia Mateo, Assistant Prosecutor,
                  argued the cause for respondent (Esther
                  Suarez, Hudson County Prosecutor, attorney;
                  Ms. Mateo, on the brief).
    
    PER CURIAM
    
            Defendant pled guilty to aggravated assault, contrary to
    
    N.J.S.A. 2C:12-1(b)(7), causing significant bodily injury, and the
    trial court sentenced defendant to three years of probation.
    
    Defendant appeals from the judgment of conviction dated May 17,
    
    2016, and argues that the trial court erred by affirming the
    
    prosecutor's denial of his application for admission to pre-trial
    
    intervention (PTI).      We affirm.
    
           A Hudson County grand jury charged defendant with first-
    
    degree    robbery,    N.J.S.A.    2C:15-1   (count   one);   second-degree
    
    aggravated assault, causing serious bodily injury, N.J.S.A. 2C:12-
    
    1(b)(1)   (count     two);   third-degree   burglary,   N.J.S.A.   2C:18-2
    
    (count three); and fourth-degree kidnapping, N.J.S.A. 2C:13-1(b)
    
    (count four). On December 3, 2015, defendant pled guilty to count
    
    two,   which   was    amended    to   third-degree   aggravated    assault,
    
    attempting to cause significant bodily injury, N.J.S.A. 2C:12-
    
    1(b)(7). The State agreed to recommend a term of non-custodial
    
    probation and dismissal of the other charges.
    
           At the plea hearing, defendant admitted that on December 22,
    
    2014, he punched J.I. with the intent to cause him significant
    
    bodily injury. Defense counsel asked the court to allow defendant
    
    to apply for admission to PTI as part of his presentence interview.
    
    The judge agreed that defendant could submit a PTI application.
    
    The judge stated, however, there was "no guarantee" he would be
    
    accepted into the program.
    
    
    
                                           2                            A-4462-15T3
         Thereafter,       defendant    submitted   an     application     to    the
    
    prosecutor for admission to PTI. By letter dated January 11, 2016,
    
    the Assistant Manager of the Criminal Division, Hudson County,
    
    advised she was recommending denial of defendant's application.
    
    On January 26, 2016, Assistant Prosecutor Thomas J. Carroll wrote
    
    to the Assistant Manager of the Criminal Division and stated that
    
    her recommendation was accepted. Carroll sent a copy of his letter
    
    to the court and to defendant's attorney.
    
         In his letter, Carroll noted that defendant had been charged
    
    with multiple first- and second-degree offenses of a violent and
    
    assaultive    nature,     making    him   presumptively        ineligible    for
    
    admission    to    PTI.   Carroll   stated   that    there   was   nothing    in
    
    defendant's       background   or   character   that     was     "unusual"    or
    
    "extraordinary," which would overcome the presumption against his
    
    admission to PTI.
    
         Defendant appealed the prosecutor's determination to the
    
    trial court, arguing that the prosecutor erred by considering
    
    certain factors when deciding whether he should be admitted to
    
    PTI. On March 21, 2016, the judge heard oral arguments on the
    
    appeal. The judge remanded the matter to the prosecutor's office
    
    to clarify whether in denying defendant's application, the State
    
    had considered defendant's inability to pay court-imposed fines,
    
    his dismissed contacts with the criminal justice system, and his
    
                                          3                                A-4462-15T3
    admitted use of marijuana. The judge asked the prosecutor to
    
    determine if these factors were not considered, whether the State
    
    still took the position that defendant should not be admitted to
    
    PTI.
    
           On March 30, 2015, Carroll wrote to the judge and stated that
    
    in rejecting defendants' application for admission to PTI, the
    
    State had not given any weight to defendant's ability or inability
    
    to pay court-imposed fines, his prior municipal court history, or
    
    his admitted use of marijuana. Carroll also stated that admitting
    
    defendant to PTI, after he entered a valid guilty plea, would be
    
    inconsistent with the PTI guidelines and relevant case law.
    
           The judge considered the matter again on April 29, 2016.
    
    After hearing oral arguments, the judge placed her decision on the
    
    record. The judge noted that under a recent amendment to the PTI
    
    statute, a defendant could plead guilty to a second-degree offense
    
    and still be admitted to PTI.
    
           The judge asked the assistant prosecutor if defendant had
    
    been charged with a third-degree offense, whether the State would
    
    still deny him admission to PTI. The assistant prosecutor replied
    
    that based on the nature of the offense, which was violent and
    
    assaultive, the State would deny defendant's application. The
    
    judge then ruled that the prosecutor's determination was not a
    
    patent and gross abuse of discretion.
    
                                      4                          A-4462-15T3
         The judge sentenced defendant on count two to three years of
    
    probation and dismissed the other counts of the indictment. The
    
    judge imposed fees and penalties and ordered defendant not to have
    
    any contact with the victim or the victim's family. The judge
    
    stated that if defendant complied with all of the conditions of
    
    probation, he could apply to terminate probation after one and
    
    one-half years. The judge entered a judgment of conviction dated
    
    May 17, 2016. This appeal followed.
    
         On appeal, defendant raises the following single point:
    
                POINT I
    
                BECAUSE THE PROSECUTOR AND PTI DIRECTOR
                CONSIDERED   INAPPROPRIATE  FACTORS,   THEIR
                REFUSALS TO ALLOW DEFENDANT TO ENROLL IN PTI
                EACH CONSTITUTE A PATENT AND GROSS ABUSE OF
                DISCRETION[.]
    
         "PTI   is   essentially   an   extension   of   the   [prosecutor's]
    
    charging decision, therefore the decision to grant or deny PTI is
    
    a 'quintessentially prosecutorial function.'" State v. Roseman,
    
    
    221 N.J. 611
    , 624 (2015) (quoting State v. Wallace, 
    146 N.J. 576
    ,
    
    582 (1996)). Accordingly, the prosecutor's decision to grant or
    
    deny a defendant's application for PTI "is entitled to a great
    
    deal of deference." Ibid. (citing State v. Leonardis, 
    73 N.J. 360
    ,
    
    381 (1977)).
    
         A trial court may only reverse a prosecutor's PTI decision
    
    "when the circumstances 'clearly and convincingly establish that
    
                                        5                             A-4462-15T3
    the prosecutor's refusal to sanction admission to the program was
    
    based on a patent and gross abuse of . . . discretion.'" Id. at
    
    624-25 (quoting Wallace, supra, 146 N.J. at 582). The denial of a
    
    defendant's      PTI   application   is    a    patent   and   gross   abuse    of
    
    discretion if the prosecutor failed to consider all relevant
    
    factors,   the    prosecutor   based      the   decision   on   irrelevant      or
    
    inappropriate factors, or the decision constitutes "a clear error
    
    of judgment." Id. at 627 (quoting State v. Nwobu, 
    139 N.J. 236
    ,
    
    247 (1995)).
    
         Defendant argues that the prosecutor's decision to deny his
    
    application for admission to PTI was a patent and gross abuse of
    
    discretion because it was based upon unproven facts and inferences
    
    of guilt, which are not supported by the record. Defendant asserts
    
    that the prosecutor based his decision on the victim's version of
    
    the incident, as recounted in the pre-sentence report, rather than
    
    on the facts he admitted to at the plea hearing.
    
         Admission to PTI is governed by N.J.S.A. 2C:43-12(e), which
    
    sets forth seventeen factors the prosecutor should consider in
    
    determining whether a defendant should be diverted to PTI. The
    
    statutory factors include "the nature of the offense," "the facts
    
    of the case," and whether the crime charged "is of an assaultive
    
    or violent nature[.]" N.J.S.A. 2C:43-12(e)(1), (2), and (10).
    
    
    
                                           6                                 A-4462-15T3
          Admission to PTI is also governed by Rule 3:28 and the
    
    guidelines adopted by the Supreme Court. Guideline 3 requires the
    
    prosecutor to consider the statutory criteria in N.J.S.A. 2C:43-
    
    12(e) and other relevant circumstances, including the nature of
    
    the   offense.     Pressler   &   Verniero,      Current   N.J.   Court    Rules,
    
    Guideline 3(i) on R. 3:28, at 1235 (2017). There is a presumption
    
    against    admitting       "defendants     who     have    committed      certain
    
    categories of offenses" into PTI. State v. K.S., 
    220 N.J. 190
    , 198
    
    (2015) (citing State v. Baynes, 
    148 N.J. 434
    , 442 (1997)).
    
          A person who has deliberately committed a crime of violence
    
    or threatened violence against another person "should generally"
    
    not be admitted to PTI. Ibid. (citing Pressler & Verniero, Current
    
    N.J. Court Rules, Guideline 3(i) on R. 3:28, at 1169 (2015)). A
    
    defendant can overcome the presumption against admission if the
    
    defendant shows "compelling reasons" for admission to PTI. Ibid.
    
    (citing Pressler & Verniero, supra, Guideline 3(i) on R. 3:28, at
    
    1169 (2015)).
    
          In   count    one,   defendant     was     charged   with   first-degree
    
    robbery, contrary to N.J.S.A. 2C:15-1. The indictment alleged that
    
    during the commission of a theft, defendant inflicted serious
    
    bodily injury on the victim, J.I. In count two, defendant was
    
    charged    with    second-degree     aggravated      assault,     contrary       to
    
    N.J.S.A. 2C:12-1(b)(1). The indictment alleged that defendant
    
                                           7                                  A-4462-15T3
    purposely     attempted    to   cause     serious       bodily    injury   to   J.I.
    
    Defendant     also   was   charged   in       count    three    with   third-degree
    
    burglary, contrary to N.J.S.A. 2C:18-2; and in count four with
    
    fourth-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b).
    
          As we noted previously, in December 2015, defendant pled
    
    guilty to count two, which was amended to charge third-degree
    
    aggravated assault, attempting to cause significant bodily injury,
    
    contrary to N.J.S.A. 2C:12-1(b)(7). The State agreed to dismiss
    
    the other charges.
    
          It is well established that when a prosecutor and PTI program
    
    director consider a PTI application, they "may not infer guilt
    
    from the sole fact that a defendant was charged, where the charges
    
    were dismissed." K.S., supra, 220 N.J. at 199 (citing State v.
    
    Brooks, 
    175 N.J. 215
    , 229 (2002)). In this case, however, the
    
    prosecutor properly considered the original charges in counts one,
    
    three, and four, because when the prosecutor denied defendant's
    
    PTI application, those charges had not yet been dismissed.
    
          Indeed, the charges were not formally dismissed until after
    
    the   court    sentenced    defendant         and     entered    the   judgment    of
    
    conviction. As noted, in count one, defendant was charged with
    
    committing a crime of violence against another person. In deciding
    
    whether defendant should be admitted to PTI, the prosecutor did
    
    
    
                                              8                                 A-4462-15T3
    not err by considering the facts and circumstances of that offense,
    
    which were developed during the investigation.
    
         Even if the prosecutor was limited to considering only the
    
    amended charge to count two, defendant's admission at the plea
    
    hearing    that    he   punched   J.I.   with   the   intent   to    cause    him
    
    significant bodily injury was sufficient to establish that he
    
    committed a crime of violence against another person. Based on
    
    that admission, a presumption arose against his admission to PTI.
    
         Defendant did not provide compelling reasons to overcome the
    
    presumption. We therefore conclude that the trial court did not
    
    err by finding that the prosecutor's decision to deny defendant's
    
    application was not a patent and gross abuse of discretion.
    
         We    have    considered     defendant's    remaining     arguments      and
    
    conclude    that    they   are    without    sufficient   merit     to   warrant
    
    discussion in this opinion. R. 2:11-3(e)(2).
    
         Affirmed.
    
    
    
    
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