STATE OF NEW JERSEY VS. JOSHUA J. GIBSON(14-09-2720, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
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                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-3305-15T4
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    JOSHUA J. GIBSON,
    
            Defendant-Appellant.
    
    _________________________________________
    
                  Submitted April 25, 2017 – Decided July 21, 2017
    
                  Before Judges Leone and Vernoia.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Atlantic County, Indictment No.
                  14-09-2720.
    
                  Weinstock & Associates, LLC, attorneys for
                  appellant (Oded M. Weinstock, of counsel and
                  on the brief; Sarah Blumberg-Weinstock, on the
                  brief).
    
                  Damon G. Tyner, Atlantic County Prosecutor,
                  attorney   for    respondent   (Melinda   A.
                  Harrington, Assistant Prosecutor, of counsel
                  and on the brief).
    
    PER CURIAM
    
            Defendant     Joshua     Gibson     pled    guilty     to   third-degree
    
    aggravated assault and received one year of probation.                 He appeals
    his February 1, 2016 judgment of conviction, challenging the trial
    
    court's order denying his appeal from the prosecutor's rejection
    
    of his application for pre-trial intervention (PTI).          We affirm.
    
                                         I.
    
          On April 15, 2014, defendant was at the MurMur nightclub at
    
    the Borgata Hotel Casino & Spa in Atlantic City with his then-
    
    girlfriend.      Another   patron,   Artur     Mavashev,   allegedly       made
    
    unwanted advances toward defendant's girlfriend and groped her
    
    despite defendant repeatedly telling him to stop.               The State
    
    alleged that the parties were separated by Borgata security and
    
    that a video showed defendant punched Mavashev while a security
    
    officer   was   standing   between   them.      Defendant's   blow    caused
    
    Mavashev to fall backward and hit his head against the wall,
    
    rendering him unconscious.       Mavashev sustained a fracture of the
    
    left temporal lobe and post-traumatic hemorrhagic contusions of
    
    the brain resulting in seizures and hearing loss.                  Defendant
    
    admitted striking the victim.
    
          Defendant was charged with third-degree aggravated assault,
    
    N.J.S.A. 2C:12-1(b)(7).      Defendant applied for admission to PTI.
    
    The   court's   PTI   director   recommended    his   admission,     but   his
    
    application was denied by the prosecutor's office.                 Defendant
    
    filed a motion appealing the prosecutor's denial to the trial
    
    court. Defendant submitted a new statement from his ex-girlfriend,
    
                                         2                               A-3305-15T4
    who claimed Mavashev hit defendant before security arrived.                       The
    
    prosecutor reviewed defendant's motion and the ex-girlfriend's
    
    statement, but continued to deny PTI.
    
         After a hearing on December 2, 2015, the trial court rejected
    
    defendant's challenge to the prosecutor's denial of PTI.                          The
    
    court   found      the    prosecutor     considered    defendant's        individual
    
    circumstances       and     "all   relevant       factors   at    great    length,"
    
    including     the        circumstances    leading      to   the    assault,       and
    
    defendant's meritorious record in the United States Coast Guard.
    
         Thereafter, defendant entered a guilty plea to third-degree
    
    aggravated assault.         Under the plea agreement, defendant preserved
    
    his right to appeal the denial of his PTI motion.                 See R. 3:28(g).
    
    Defendant now appeals, arguing:
    
                THE PROSECUTOR'S REJECTION OF DEFENDANT-
                APPELLANT JOSHUA GIBSON'S APPLICATION TO THE
                ATLANTIC   COUNTY   PRE-TRIAL   INTERVENTION
                PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE
                OF DISCRETION.
    
                                             II.
    
         The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule
    
    3:28, and the Guidelines for Operation of Pretrial Intervention
    
    in New Jersey, reprinted after Rule 3:28 in Pressler & Verniero,
    
    Current     N.J.     Court     Rules     (2017)     [hereinafter     Guidelines].
    
    "N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be
    
    considered by the criminal division manager and prosecutor in
    
                                              3                                  A-3305-15T4
    determining admission into [PTI]."            State v. K.S., 
    220 N.J. 190
    ,
    
    197 (2015).   Courts must "presume that a prosecutor considered all
    
    relevant factors, absent a demonstration by the defendant to the
    
    contrary."    State v. Wallace, 
    146 N.J. 576
    , 584 (1996).
    
         "Deciding      whether    to    permit     diversion      to   PTI   'is     a
    
    quintessentially prosecutorial function.'"               State v. Waters, 
    439 N.J. Super. 215
    , 225 (App. Div. 2015) (quoting Wallace, supra, 146
    
    N.J. at 582).        "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."         Ibid. (quoting State v. Nwobu,
    
    
    139 N.J. 236
    , 246 (1995)).      "Accordingly, 'prosecutors are granted
    
    broad discretion to determine if a defendant should be diverted'
    
    to PTI instead of being prosecuted."            Ibid. (quoting K.S., supra,
    
    220 N.J. at 199).
    
         "Thus, the scope of review is severely limited."                       Ibid.
    
    (quoting State v. Negran, 
    178 N.J. 73
    , 82 (2003)).                   "Reviewing
    
    courts must accord the prosecutor '"extreme deference."'"                   Ibid.
    
    (quoting Nwobu, supra, 139 N.J. at 246).                  "[I]nterference by
    
    reviewing courts is reserved for those cases where needed 'to
    
    check   []    the    "most    egregious       examples    of    injustice       and
    
    unfairness."'"      State v. Lee, 
    437 N.J. Super. 555
    , 563 (App. Div.
    
                                           4                                  A-3305-15T4
    2014) (alterations in original) (quoting Negran, supra, 178 N.J.
    
    at 82), certif. denied, 
    222 N.J. 18
     (2015)).
    
         We review the court's reversal of the prosecutor's decision
    
    de novo.   Waters, supra, 439 N.J. Super. at 226.         Thus, we apply
    
    the same standard as the trial court.         Ibid.   We must hew to that
    
    deferential   standard.    "In   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.'"    Ibid. (quoting State v. Watkins, 
    193 N.J. 507
    , 520 (2008)).
    
                                     III.
    
         The prosecutor initially denied defendant's application for
    
    admission into PTI because of "[t]he nature of the offense," "[t]he
    
    facts of the case," "[t]he needs and interests of the victim and
    
    society," and because "the crime is of an assaultive or violent
    
    nature."   N.J.S.A. 2C:43-12(e)(1), (2), (7), (10).        The prosecutor
    
    emphasized that defendant struck Mavashev after security officers
    
    had already separated the parties, that defendant caused serious
    
    injuries, and that the victim desired prosecution.            See N.J.S.A.
    
    2C:43-12(e)(4).     Noting the strong need to deter defendant and
    
    others, the prosecutor found that "the crime is of such a nature
    
    that the value of supervisory treatment would be outweighed by the
    
    public need for prosecution," and that "the harm done to society
    
                                       5                               A-3305-15T4
    by abandoning criminal prosecution would outweigh the benefits to
    
    society from channeling an offender into a supervisory treatment
    
    program."     N.J.S.A. 2C:43-12(e)(14), (17).
    
         Moreover,    as    the   prosecutor     noted,     under    the   Guidelines
    
    "[t]here is a '"presumption against acceptance"' into Pretrial
    
    Intervention for defendants who have committed certain categories
    
    of offenses."     K.S., supra, 220 N.J. at 198 (citation omitted).
    
    "[I]f the crime was . . . deliberately committed with violence
    
    . . . against another person . . . the defendant's application
    
    should generally be rejected."             Ibid. (quoting Guideline 3(i)).
    
    By striking Mavashev, defendant committed a deliberate violent
    
    crime, which resulted in substantial injuries.                  "If a defendant
    
    'fails   to    rebut    the   presumption       against       diversion,'      then
    
    '[r]ejection    based    solely   on   the     nature    of     the    offense    is
    
    appropriate.'"    Waters, supra, 439 N.J. Super. at 227 (alteration
    
    in original) (quoting State v. Caliguiri, 
    158 N.J. 28
    , 43 (1999)).
    
         "A defendant may rebut the presumption by 'showing compelling
    
    reasons justifying the applicant's admission and establishing that
    
    a   decision     against      enrollment       would     be     arbitrary        and
    
    unreasonable.'"    Ibid. (quoting Guideline 3(i)).              "'[A] defendant
    
    must demonstrate something extraordinary or unusual,' not merely
    
    'that the accused is a first-time offender and has admitted or
    
    accepted responsibility for the crime.'"                Ibid. (quoting Nwobu,
    
                                           6                                   A-3305-15T4
    supra, 139 N.J. at 252).        "[T]his is a fact-sensitive analysis
    
    that   requires    consideration     of   'idiosyncratic'   circumstances
    
    demonstrating that denial of PTI has resulted in a              'serious
    
    injustice.'"      State v. Roseman, 
    221 N.J. 611
    , 624 (2015) (quoting
    
    Nwobu, supra, 139 N.J. at 252).
    
           Defendant   contends   such   compelling   reasons   existed   here
    
    because he previously served in the United States Coast Guard and
    
    received multiple commendations, including an achievement medal
    
    for assisting in the rescue after an airliner ditched in the
    
    "Miracle on the Hudson."       The prosecutor recognized defendant's
    
    service and commendations but concluded that such considerations
    
    were not so compelling as to overcome the presumption given the
    
    statutory factors. "Under these criteria, the interests of society
    
    may justify the denial of an application for admission into PTI
    
    even though a defendant has led an exemplary life except for the
    
    conduct which forms the basis of the pending criminal charges."
    
    State v. Seyler, 
    323 N.J. Super. 360
    , 370 (App. Div. 1999), aff’d,
    
    
    163 N.J. 69
     (2000); see Nwobu, supra, 139 N.J. at 253 (finding
    
    "nothing extraordinary or unusual about Nwobu's case," even though
    
    "[h]e seems to have led a blameless life until now").
    
           Like the trial court, we are not willing to disturb the
    
    prosecutor's assessment that defendant's military record, though
    
    impressive, is insufficient to overcome the presumption against
    
                                          7                           A-3305-15T4
    PTI admittance for violent crimes.             In any event, "[e]ven if
    
    'extraordinary and unusual' circumstances exist to overcome the
    
    presumption against admission into PTI for certain offenses," the
    
    "courts may overrule a prosecutor's decision to accept or reject
    
    a    PTI   application   only   when   the   circumstances         '"clearly     and
    
    convincingly establish that the prosecutor's refusal to sanction
    
    admission into the program was based on a patent and gross abuse
    
    of . . . discretion."'"           Roseman, supra, 221 N.J. at 624-25
    
    (quoting Wallace, supra, 146 N.J. at 582).
    
                 "Ordinarily an abuse of discretion will be
                 manifest if defendant can show that a
                 prosecutorial veto (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. . . . 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."
    
                 [Wallace, supra, 146 N.J. at 583 (citation
                 omitted).]
    
           Defendant has not demonstrated an abuse of discretion under
    
    the first two prongs of the standard laid out in Wallace.                   As the
    
    trial court found, the prosecutor considered the relevant factors,
    
    and defendant does not claim the prosecutor's decision was based
    
    on    irrelevant   or    inappropriate     factors.         We    must   therefore
    
    determine     whether    defendant     satisfied      the        third   prong    by
    
                                           8                                   A-3305-15T4
    demonstrating the prosecutor committed a clear error of judgment.
    
    Ibid.    Our Supreme Court has defined "a clear error of judgment"
    
    as a decision "'"based on appropriate factors and rationally
    
    explained," but . . . "contrary to the predominant views of others
    
    responsible for the administration of criminal justice."'"             State
    
    v. Baynes, 
    148 N.J. 434
    , 444 (1997) (quoting Nwobu, supra, 139
    
    N.J. at 253).        We are particularly hesitant to find that a
    
    prosecutor's determination was a clear error of judgment.              State
    
    v. Maddocks, 
    80 N.J. 98
    , 105 (1979).
    
         Defendant asserts the prosecutor improperly weighed the facts
    
    of the case, N.J.S.A. 2C:43-12(e)(2), by failing to consider the
    
    circumstances    leading   up   to   defendant's   assault    on   Mavashev.
    
    However,   it   is   apparent   from   the   prosecutor's    PTI   rejection
    
    memorandum, and the prosecutor's comments during oral argument,
    
    that the prosecutor considered defendant's claim that Mavashev had
    
    made persistent unwarranted sexual advances to defendant's then-
    
    girlfriend.     Defendant argues the prosecutor ignored his ex-
    
    girlfriend's statement submitted with his motion to the trial
    
    court.   However, the prosecutor's second letter specifically said
    
    
    
    
                                           9                             A-3305-15T4
    the prosecutor had reviewed the materials submitted with the
    
    motion.1
    
          Defendant next argues the prosecutor should have discounted
    
    Mavashev's desire for prosecution.        However, whether the victim
    
    "desire[s] . . . to forego prosecution" is a relevant inquiry.
    
    N.J.S.A. 2C:43-12(e)(4).      Defendant alleges Mavashev may have
    
    withheld consent to PTI as leverage for the harassment charge he
    
    faced from his conduct toward defendant's ex-girlfriend the night
    
    of the incident.    Defendant further alleges Mavashev refused to
    
    consent because of possible ramifications to his subsequent civil
    
    suit against defendant and others.        However, defendant submitted
    
    no   evidence   supporting   those    allegations,   and   the   victim's
    
    subsequent actions were irrelevant to the prosecutor's decision.
    
    In any event, "[v]ictim consent is an appropriate factor to
    
    consider under Guideline 3 and N.J.S.A. 2C:43-12(e)(4)" even if
    
    based on personal reasons.      State v. Imbriani, 
    291 N.J. Super. 171
    , 180 (App. Div. 1996).       Given the severity of Mavashev's
    
    injuries, the prosecutor did not place undue weight on Mavashev's
    
    desire for prosecution.
    
    
    
    1
     The prosecutor was not required to change position based on these
    materials.    "A prosecutor is certainly free to disbelieve
    statements presented by defense witnesses and to instead credit
    the anticipated contrary testimony of the State's witnesses." Lee,
    supra, 437 N.J. Super. at 568.
    
                                         10                           A-3305-15T4
          Finally, defendant contends the prosecutor improperly weighed
    
    "[t]he needs and interests of the victim and society," and "the
    
    harm done to society by abandoning criminal prosecution," N.J.S.A.
    
    2C:43-12(e)(7), (17), without elaborating on how each applied.                  A
    
    prosecutor   must   provide   a   statement      of   reasons    justifying     a
    
    decision to reject the defendant for PTI, and that statement should
    
    demonstrate that the prosecutor has carefully considered the facts
    
    and relevant law, as opposed to simply reciting the statutes,
    
    rules, or guidelines.    Wallace, supra, 146 N.J. at 584.             While the
    
    prosecutor's explanation of factors (7) and (17) was cursory,
    
    prohibiting violent physical altercations is clearly in society's
    
    interest, as the trial court recognized.              Further discussion of
    
    this societal interest was not required.
    
          The prosecutor was not required to reach a different balance
    
    because defendant wants to serve in law enforcement in the future.
    
    Moreover, the statute, rule, and Guidelines "clearly intended to
    
    leave the weighing process to the prosecutor."           Waters, supra, 439
    
    N.J. Super. at 234 (quoting Wallace, supra, 146 N.J. at 585-86).
    
          In any event, defendant cannot meet the standard for a patent
    
    and gross abuse of discretion because the prosecutor's decision
    
    did   not    "'clearly   subvert     the   goals       underlying     Pretrial
    
    Intervention.'"      Wallace,     supra,   146    N.J.   at     583   (citation
    
    omitted).    Granting defendant PTI would not necessarily serve all
    
                                        11                                  A-3305-15T4
    the goals of PTI set forth in N.J.S.A. 2C:43-12(a)(1)-(5).                   Cf.
    
    Baynes, supra, 148 N.J. at 451.              This was not a "'victimless'
    
    offense[],"    but    rather   a   violent    assault    arguably    involving
    
    "serious criminality."     N.J.S.A. 2C:43-12(a)(3), (4).            Nor was the
    
    prosecutor required to find that PTI would be sufficient to deter
    
    defendant from future criminal behavior.                See N.J.S.A. 2C:43-
    
    12(a)(1), (2), (5).        We cannot say the prosecutor's decision
    
    subverted the goals of PTI.
    
         "The question is not whether we agree or disagree with the
    
    prosecutor's decision, but whether the prosecutor's decision could
    
    not have been reasonably made upon weighing the relevant factors."
    
    Nwobu, supra, 139 N.J. at 254.        As in Nwobu, "[w]e cannot say that
    
    such a decision could not have been reasonably made in this
    
    setting."     Ibid.
    
         Affirmed.
    
    
    
    
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