STATE OF NEW JERSEY VS. RIANNA L. DRINKS(15-05-0679, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )


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  •                            RECORD IMPOUNDED
    
                            NOT FOR PUBLICATION WITHOUT THE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-2812-15T1
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    RIANNA L. DRINKS,
    
            Defendant-Appellant.
    
    __________________________________
    
                  Submitted May 31, 2017 – Decided August 18, 2017
    
                  Before Judges Leone and Vernoia.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Indictment No.
                  15-05-0679.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Theresa Y. Kyles, Assistant
                  Deputy Public Defender, of counsel and on the
                  brief).
    
                  Esther Suarez, Hudson County Prosecutor,
                  attorney for respondent (Roseanne Sessa,
                  Assistant Prosecutor, on the brief).
    
    PER CURIAM
    
            Defendant Rianna L. Drinks pled guilty to fourth-degree child
    
    abuse or neglect.         She appeals her February 12, 2016 judgment of
    conviction, arguing the trial court erred when it upheld the
    
    prosecutor's     rejection        of   her     application         for    pre-trial
    
    intervention (PTI).        We affirm.
    
                                            I.
    
         The prosecutor's rejection letter and the February 3, 2015
    
    police report alleged the following facts.
    
         On February 3, 2015, defendant left her two young children,
    
    ages two and six, alone in her Jersey City apartment.                     At 10:00
    
    a.m., a neighbor saw the two-year-old naked in the hallway of the
    
    apartment building.        At approximately 3:00 p.m., police officers
    
    responded to a call about unattended children in the apartment,
    
    and heard children crying.         When the officers knocked on the door,
    
    a child told them through the door that their mother was asleep
    
    and the child would not open the door.               The officers obtained a
    
    key from building management and entered the apartment to ascertain
    
    the children's welfare.        The officers found two children hiding
    
    in the back bedroom, naked and unattended.              The older child told
    
    police   she   did   not   know    where     her   mother    was    and   had   been
    
    instructed not to open the door for anyone.                 The neighbor stated
    
    that the children were frequently left home alone.
    
         Police attempted to call defendant's phone but could not
    
    reach her.     Defendant returned to the apartment around 4:00 p.m.
    
    and provided different versions of where she was and changed her
    
                                            2                                   A-2812-15T1
    story several times.     Defendant later told the PTI interviewer
    
    that she went to a check-cashing place and a store to buy food.
    
         Defendant was charged with two counts of second-degree child
    
    endangerment, N.J.S.A. 2C:24-4(a), and two counts of fourth-degree
    
    child abandonment, N.J.S.A. 9:6-1, -3.       Defendant applied for
    
    admission to PTI, but the prosecutor denied the application.
    
    Defendant filed a motion challenging the prosecutor's denial.     The
    
    trial court rejected defendant's challenge in an October 19, 2015
    
    oral decision.
    
         Thereafter, defendant entered a guilty plea to fourth-degree
    
    child abandonment.    She admitted she left the older child alone
    
    in the apartment "for a period of time," putting her in danger.
    
    The court sentenced defendant to two years of probation.
    
         Defendant appeals the denial of her PTI motion.         See R.
    
    3:28(g).   She argues:
    
               THE PROSECUTOR'S DECISION TO REJECT MS.
               DRINK'S APPLICATION FOR PTI CONSTITUTED A
               PATENT AND GROSS ABUSE OF DISCRETION THAT
               SUBVERTS THE GOALS OF PTI, REQUIRING HER
               ADMISSION   INTO  PTI.      AT  MINIMUM,   IT
               CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING
               A REMAND FOR RECONSIDERATION.
    
                     A.   In This Matter, the Prosecutor
                          Considered Inappropriate Factors,
                          Failed    to    Consider    Relevant
                          Factors, and Based His Conclusion on
                          a Clear Error of Judgment, Resulting
                          in   an   Abuse   of   Prosecutorial
                          Discretion.
    
                                      3                          A-2812-15T1
                            1.     Nature of the Offense and Facts
                                   of the Case.
    
                            2.     Motivation       and   Age    of    the
                                   Defendant.
    
                            3.     Public Needs Factors.
    
                     B.     Rejection   of    the   Application
                            Subverted the Goals of PTI.
    
                                           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
    
    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
    
                                            4                                 A-2812-15T1
    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.
    
    2014) (quoting Negran, supra, 178 N.J. at 82), certif. denied, 
    222 N.J. 18
     (2015).
    
         We apply the same standard as the trial court, and review its
    
    decision de novo.         Waters, supra, 439 N.J. Super. at 226.     We must
    
    hew to that standard of review.
    
                                          III.
    
         The prosecutor denied defendant's application for admission
    
    into PTI for a number of reasons.            The prosecutor noted defendant
    
    was charged with second-degree offenses, which carry a presumption
    
    against admission into PTI.           In addition, the prosecutor found
    
                                            5                             A-2812-15T1
    denial was supported by "[t]he nature of the offense," "[t]he
    
    facts of the case," defendant's "motivation," "[t]he needs and
    
    interests of the victim and society," and the determination that
    
    "the    public   need    for   prosecution"    outweighed   "the    value    of
    
    supervisory treatment" and "the harm done . . . by abandoning
    
    criminal prosecution . . . outweigh[ed]" any societal benefits
    
    from allowing PTI.       N.J.S.A. 2C:43-12(e)(1), (2), (3), (7), (14),
    
    (17).    The prosecutor highlighted that defendant left such young
    
    children on their own, that she gave contradictory versions of why
    
    she did so, and that a neighbor told police defendant frequently
    
    left the children home alone.           Finally, the prosecutor doubted
    
    "rehabilitative efforts will be short term."
    
           The prosecutor properly cited the presumption against PTI.
    
    Guideline 3(i) states "[a] defendant charged with a . . . second
    
    degree offense . . . should ordinarily not be considered for
    
    enrollment in a         PTI program."       "This provision represents a
    
    'decision to prevent serious offenders from avoiding prosecution
    
    in ordinary circumstances,' and creates 'a presumption against
    
    diversion.'"     Waters, supra, 439 N.J. Super. at 226 (quoting State
    
    v. Caliguiri, 
    158 N.J. 28
    , 42 (1999)).          "If a defendant 'fails to
    
    rebut the presumption against diversion,' then '[r]ejection based
    
    solely on the nature of the offense is appropriate.'"              Id. at 227
    
    
    
                                            6                             A-2812-15T1
    (alteration in original) (quoting Caliguiri, supra, 158 N.J. at
    
    43).
    
           Defendant asserts that relying on the presumption against PTI
    
    for second-degree offenses under Guideline 3(i) was inappropriate
    
    because second-degree offenders can be admitted to PTI.         However,
    
    the prosecutor did not indicate to the contrary.             Rather, the
    
    prosecutor      acknowledged   the       presumption   was    applicable
    
    "ordinarily," and provided several other reasons why defendant
    
    should not receive PTI.
    
           Defendant cites the August 10, 2015 addition of N.J.S.A.
    
    2C:43-12(g)(3), but that was enacted after the prosecutor's July
    
    20, 2015 PTI decision.     In any event, the 2015 amendment simply
    
    provides that "[a]dmission into supervisory treatment shall be
    
    available to the following defendants only upon entering a plea
    
    of guilty: (a) a defendant charged with a first or second degree
    
    crime."    L. 2015, c. 98, § 4.      Nothing in the 2015 amendment or
    
    its legislative history indicates that adding the requirement of
    
    a guilty plea was intended to void the long-standing presumption
    
    against admission to PTI for defendants charged with a first- or
    
    second-degree crime, which has been a part of the Supreme Court's
    
    Guidelines since 1982.     See Pressler, Current N.J. Court Rules,
    
    Guideline 3(i) to R. 3:28 (1984).           Therefore, the presumption
    
    applied here.
    
                                         7                           A-2812-15T1
         "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.'"      Waters, supra, 439 N.J. Super. at 227 (quoting
    
    Guideline 3(i)).        Defendant contends she overcame the presumption
    
    because    this   was    her   first   arrest,   she   was   charged   with    a
    
    nonviolent offense, she did not intend to harm her children, and
    
    her mother, who was her primary childcare resource, had recently
    
    passed away.1     However, "'[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, supra, 139 N.J. at 252).
    
         The    circumstances       presented   by   defendant     were    not    so
    
    compelling as to rebut the presumption against PTI.                     "[T]he
    
    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 o.b., 
    163 N.J. 69
     (2000).
    
    
    
    1
      Defendant contends the prosecutor did not consider those facts.
    However, the prosecutor was aware of those facts, and her letter
    said she considered "all of the relevant reports" and "[a]ll of
    the facts in this defendant's case." "Thus, defendant's contention
    . . . is not sustainable." See Wallace, supra, 146 N.J. at 588.
    
                                            8                              A-2812-15T1
          "Even if 'extraordinary and unusual' circumstances exist to
    
    overcome the presumption against admission into PTI for certain
    
    offenses," a court may only "overrule a prosecutor's decision to
    
    accept or reject a PTI application . . . 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."'"    State v. Roseman, 
    221 N.J. 611
    , 624-25 (2015) (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 (quoting
              State v. Bender, 
    80 N.J. 84
    , 93 (1979)).]
    
          Defendant argues that in evaluating the facts of the case,
    
    the   prosecutor   inappropriately    considered   the   neighbor's
    
    statements to the police that the children were alone since 10:00
    
    a.m. and had been frequently left alone in the past.      Defendant
    
    claims that neighbor bore animosity toward defendant and had motive
    
    to lie, but plaintiff's claim is unsupported by evidence.    In any
    
    event, "[a] prosecutor is certainly free to disbelieve statements
    
                                    9                           A-2812-15T1
    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.
    
         The    prosecutor    also   considered     defendant's     "motivation,"
    
    N.J.S.A. 2C:43-12(e)(3), which can encompass both her "motivation
    
    behind the commission of the crime" and her "motivation to succeed
    
    in the [PTI] program."       State v. Leonardis, 
    71 N.J. 85
    , 101 n.9,
    
    112 (1976); e.g., State v. Rizzitello, 
    447 N.J. Super. 301
    , 309
    
    (App. Div. 2016); State v. Imbriani, 
    291 N.J. Super. 171
    , 179
    
    (App. Div. 1996).        The prosecutor found defendant's motivation
    
    "suspect."        Defendant told the PTI interviewer she left the
    
    children alone only to get cash and buy them food.              However, the
    
    prosecutor noted she gave conflicting stories to the police at the
    
    time she returned home.       Defendant argues that was inappropriate
    
    because her motivation cannot be assessed by a single conversation
    
    with police while being arrested.        However, the prosecutor was not
    
    required to credit the motivation defendant later gave the PTI
    
    interviewer, which appeared inconsistent with the 10 a.m. to 4
    
    p.m. period the children allegedly were alone.                The prosecutor
    
    also noted defendant herself did not express remorse or acknowledge
    
    the inappropriateness of her actions.             Her lack of candor and
    
    failure to accept full responsibility for her actions supported
    
    
    
                                        10                                A-2812-15T1
    the prosecutor's finding that she lacked motivation to benefit
    
    from supervisory treatment.
    
           Defendant argues the prosecutor ignored a letter submitted
    
    by Visiting Homemaker Service regarding defendant's performance
    
    in its parenting courses, which attested to her good character as
    
    a mother.     However, the prosecutor could give little weight to
    
    that letter given the evidence that, despite having completed
    
    parenting classes, defendant nonetheless left her small children
    
    alone for six hours.       See State v. Brooks, 
    175 N.J. 215
    , 230 (2002)
    
    (finding "numerous letters attesting to [the defendant's] good
    
    character" could not "detract from the nature of his acts or from
    
    the fact that . . . defendant appreciated the wrongful nature of
    
    his conduct and simply disregarded it"). The prosecutor's decision
    
    not to rely on defendant's explanations of her whereabouts, as
    
    well   as   the   letter   regarding   her   character,   was    within   the
    
    prosecutor's discretion.       See Lee, supra, 437 N.J. Super. at 568.
    
           Defendant argues it was inappropriate for the prosecutor to
    
    consider the needs of the victims and of society for prosecution
    
    of defendant's irresponsible abandonment of such young children.
    
    Defendant    argues   cases    of   irresponsible   parenting,    including
    
    neglect, are commonly handled in civil courts by the Division of
    
    Child Protection and Permanency (DCP&P).        However, N.J.S.A. 2C:24-
    
    4(a) and N.J.S.A. 9:6-3 explicitly allow the prosecutor to seek
    
                                         11                              A-2812-15T1
    criminal prosecution for such neglect, and "[t]he selection of the
    
    charge rests in the sound discretion of the prosecutor."           See
    
    State v. D.V., 
    348 N.J. Super. 107
    , 115-16 (App. Div. 2002), aff’d
    
    o.b., 
    176 N.J. 338
     (2003).
    
         Defendant argues the prosecutor made a clear error of judgment
    
    by prosecuting her when other cases with similar or identical
    
    conduct   might   not   be   prosecuted.   However,   "'prosecutorial
    
    decisions in PTI matters are primarily individualistic in nature,'
    
    and thus ordinarily 'a defendant will not prevail merely because
    
    he can demonstrate that, unlike himself, others who have been
    
    charged with similar offenses have been diverted into PTI.'"
    
    Waters, supra, 439 N.J. Super. at 235 (quoting State v. Sutton,
    
    
    80 N.J. 110
    , 119 (1979)).      Defendant similarly cannot prevail by
    
    showing others have been sued civilly by DCP&P, given our extreme
    
    deference to prosecutorial discretion.     In any event, the apparent
    
    duration and frequency of defendant's abandonment of the children,
    
    and her subsequent dissembling about it, distinguish her case from
    
    the DCP&P case she cites, where a mother left her sleeping child
    
    unattended for approximately ten minutes in a locked motor vehicle
    
    in a store parking lot while she was in the store.      Cf. Dep't of
    
    Children & Families, Div. of Child Prot. & Permanency v. E.D.-O.,
    
    
    223 N.J. 166
    , 169 (2015).       We are particularly hesitant to find
    
    
    
                                       12                         A-2812-15T1
    that a prosecutor's determination was a clear error of judgment.
    
    State v. Maddocks, 
    80 N.J. 98
    , 105 (1979).
    
         Defendant cites the prosecutor's comment in her denial letter
    
    that "defendant has a prior history with DCP&P, yet has been unable
    
    to comport her conduct to acceptable societal standards.            In light
    
    of this DCP&P, it cannot be said that rehabilitative efforts will
    
    be short term."      Defendant argues her prior involvement with the
    
    DCP&P was an inappropriate factor because that matter arose from
    
    domestic violence perpetrated by the father of one of her children,
    
    and defendant was one of the victims.            Defendant is correct that
    
    being a victim of domestic violence would not be a basis for
    
    denying PTI, but that was not the basis cited by the prosecutor.
    
    Rather, as the prosecutor's letter suggested and as she explained
    
    at her motion hearing, the prosecutor was referring to the services
    
    defendant received due to DCP&P's involvement, as a result of
    
    which the twenty-five-year-old defendant "knew what she was doing
    
    was not appropriate."          Defendant concedes that her parenting
    
    classes   were   from    "a   DCP&P-associated     support   agency."         The
    
    prosecutor   could      consider   defendant's    failure    to   heed     those
    
    societal standards in finding that rehabilitation would be slow
    
    and PTI inadequate.
    
         Defendant has failed to show the prosecutor's decision "was
    
    not premised upon a consideration of all relevant factors, (b) was
    
                                         13                                  A-2812-15T1
    based upon a consideration of irrelevant or inappropriate factors,
    
    or (c) amounted to a clear error in judgment."               Wallace, supra,
    
    146 N.J. at 583 (quoting Bender, supra, 80 N.J. at 93).               Thus, we
    
    cannot say the prosecutor's decision was arbitrary, irrational,
    
    or otherwise an abuse of discretion.
    
           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 [PTI].'"                    Ibid.
    
    (citation omitted).       Granting defendant PTI would not necessarily
    
    serve all the goals of PTI set forth in N.J.S.A. 2C:43-12(a)(1)-
    
    (5).    This was not a "'victimless' offense[]," and the victims
    
    were small children unable to care for themselves. N.J.S.A. 2C:43-
    
    12(a)(3).    Nor was the prosecutor required to find that PTI would
    
    be sufficient to deter defendant from future criminal neglect.
    
    See    N.J.S.A.    2C:43-12(a)(1),     (2),   (5).    We     cannot   say   the
    
    prosecutor's decision clearly subverted the goals of PTI.
    
                                           IV.
    
           Defendant also submits the prosecutor's decision, at minimum,
    
    constituted       an   abuse   of   discretion   requiring    a   remand    for
    
    reconsideration.        A reviewing court may "vacate a PTI rejection
    
    and remand to the prosecutor for reconsideration" if it "finds
    
    that 'the prosecutor's decision was arbitrary, irrational, or
    
    otherwise an abuse of discretion, but not a patent and gross
    
                                           14                              A-2812-15T1
    abuse'" and "a remand will serve a useful purpose."                Wallace,
    
    supra, 146 N.J. at 583 (quoting State v. Dalglish, 
    86 N.J. 503
    ,
    
    509-11 (1981)).    As set forth above, however, defendant has failed
    
    to make such a showing.
    
         Ultimately,    "[t]he   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.
    
         Defendant's remaining arguments lack sufficient merit to
    
    warrant discussion.      R. 2:11-3(e)(2).
    
         Affirmed.
    
    
    
    
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