STATE OF NEW JERSEY VS. JUAN A. FERRER, JR. (15-03-0210, BURLINGTON 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  •                         NOT FOR PUBLICATION WITHOUT THE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-2474-15T2
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    JUAN A. FERRER, JR.,
    
            Defendant-Appellant.
    
    ________________________________
    
                  Argued July 18, 2017 – Decided August 21, 2017
    
                  Before Judges Ostrer and Leone.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Burlington County, Indictment
                  No. 15-03-0210.
    
                  Jordan G.       Zeitz     argued     the    cause    for
                  appellant.
    
                  Jennifer     B.     Paszkiewicz,     Assistant
                  Prosecutor, argued the cause for respondent
                  (Scott   A.    Coffina,   Burlington    County
                  Prosecutor, attorney; Ms. Paszkiewicz, of
                  counsel and on the brief; Linda Rinaldi, Legal
                  Assistant, on the brief).
    
    PER CURIAM
          Defendant Juan A. Ferrer, Jr. appeals the April 29, 2015
    
    denial of his application for pretrial intervention (PTI).                      We
    
    affirm.
    
                                            I.
    
          The police report alleged the following facts.                  On October
    
    5, 2014, a resident reported to police dispatch that his Palmyra
    
    apartment was being burglarized.            The resident was in Philadelphia
    
    but   able   to   view   on    his   cellphone   the   video   from    his   home
    
    surveillance system.          He reported that three suspects broke into
    
    his residence and that at least one of the suspects appeared to
    
    be armed and pointed a gun at his dog.
    
          Upon arriving at approximately 4:57 a.m., Sergeant Timothy
    
    Leusner and Patrolman Ludlow observed individuals moving around
    
    and using flashlights inside the residence. The officers requested
    
    backup to set up a perimeter.          At 5:05 a.m., dispatch advised that
    
    suspects had reportedly exited the rear of the residence and fled.
    
    But, as the officers approached the rear of the residence, the
    
    back door opened and a flashlight shined into Leusner's face.                   He
    
    ordered the suspect to show his hands. The suspect instead slammed
    
    the door shut.
    
          Two suspects attempted to exit through second- and third-
    
    story windows but retreated inside upon observing the police
    
    perimeter.    The pair later attempted to flee via the front door,
    
                                            2                                A-2474-15T2
    but officers apprehended them.   One suspect was defendant.     The
    
    second suspect identified himself as Joseph R. Montez, but was
    
    found to be co-defendant Joseph R. Rios.   Both defendants denied
    
    being accompanied by a third perpetrator and no additional suspect
    
    was discovered.
    
         Inside the back door, police later recovered a bag containing
    
    items from the residence, including watches, jewelry, and other
    
    property.   The officers also noticed a door and door jamb were
    
    damaged, and the home security system had been ripped from the
    
    wall and had its wires severed.      A vehicle registered to co-
    
    defendant Rios was located on the street near the residence.
    
         Defendant and Rios were charged with third-degree burglary,
    
    N.J.S.A 2C:18-2(a)(1); third-degree attempted theft by unlawful
    
    taking, N.J.S.A. 2C:5-1(a) and N.J.S.A. 2C:20-3(a); third-degree
    
    resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2); and fourth-
    
    degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).   Rios was also
    
    charged with third-degree hindering apprehension, N.J.S.A. 2C:29-
    
    3(b)(4).
    
         Defendant applied for admission to PTI.    An April 29, 2015
    
    letter stated that the Superior Court's Criminal Division Manager
    
    
    
    
                                     3                         A-2474-15T2
    ("CDM") recommended against PTI.1        The CDM found "the crime is
    
    such that the public need for prosecution outweighs the value of
    
    supervisory treatment," citing N.J.S.A. 2C:43-12(e)(7), (14), and
    
    (17).   The CDM explained that "[b]urglary of a home is a very
    
    serious offense," because "[t]here is always a great potential for
    
    violence if the perpetrator is interrupted in the middle of the
    
    crime," and because of the "fear and anxiety it causes its victims
    
    and society in general."   The CDM noted that "[t]he sanctity and
    
    security of a person's home has been violated" and that the
    
    burglars had damaged the resident's property.           The CDM stated
    
    "[s]uch a crime is worthy of vigorous prosecution" in order "to
    
    deter this defendant and others."
    
         The CDM further noted the victim "completely opposed" PTI,
    
    citing N.J.S.A. 2C:43-12(e)(4).        Finally, the CDM found that as
    
    "defendant [had] not presented any compelling reasons which may
    
    justify his admission" into PTI, "the needs and interests of
    
    society" would be best served by continued presentation.               See
    
    N.J.S.A. 2C:43-12(e)(7), (15).
    
         On May 6, 2015, defendant appealed "the denial" of his
    
    application.    The   prosecutor   filed    a   brief   stating    "[t]he
    
    
    
    1
      The letter was signed by a case supervisor/parole officer and a
    team leader. The prosecutor refers to this as the letter from the
    "PTI director."
    
                                       4                              A-2474-15T2
    Prosecutor's Office did not separately reject defendant; however,
    
    it is the State's position the rejection of the PTI Director for
    
    the   Criminal   Division   was   appropriate,   and   must   be   reviewed
    
    pursuant to an abuse of discretion standard."2
    
          After reviewing submitted papers and hearing oral arguments,
    
    the trial court denied defendant's appeal on June 8, 2015.               The
    
    
    2
      Defendant does not challenge this procedure.       However, the
    procedure improperly diverged from the three-step process required
    by Rule 3:28(h): (1) "The criminal division manager shall complete
    the evaluation [of the defendant's PTI application] and make a
    recommendation," (2) "[t]he prosecutor shall complete a review of
    the application and inform the court and defendant [of the
    prosecutor's decision and reasoning] within fourteen days of the
    receipt of the criminal division manager's recommendation," and
    (3) the defendant may appeal by filing a motion in the trial court
    "within ten days after the [prosecutor's] rejection."        Ibid.
    (emphasis added).      The CDM's letter mistakenly said that
    defendant's motion to the trial court "must be filed within ten
    (10) days of the date of this letter."
         Moreover, the prosecutor mistakenly waited to evaluate
    defendant's application until after the defendant had filed a
    motion with the trial court.    "The language in Rule 3:28(h) is
    both clear and emphatic.      The prosecutor must independently
    evaluate whether a defendant should be admitted into PTI." State
    v. Rizzitello, 
    447 N.J. Super. 301
    , 311 (App. Div. 2016). "The
    [prosecutor]'s failure to perform this important, legally required
    evaluation is unacceptable." Ibid. As explained further infra,
    "policy determinations, such as which offenses to aggressively
    prosecute, fall within the domain of the prosecutor, not the
    judiciary" or judicial employees such as the CDM. State v. Waters,
    
    439 N.J. Super. 215
    , 232 (App. Div. 2015) (quoting State v. Kraft,
    
    265 N.J. Super. 106
    , 116 (App. Div. 1993)). "Notwithstanding this
    oversight, [because] the record before us contains sufficient
    facts" and the prosecutor adopted the CDM's rationale, we can
    decide the challenges defendant does raise. Rizzitello, supra,
    447 N.J. Super. at 311; see State v. Nwobu, 
    139 N.J. 236
    , 250
    (1995) (holding a "prosecutor [may] adopt the PTI director's
    reasoning as his own").
    
                                         5                              A-2474-15T2
    court   found    all   appropriate    factors    were    considered   and    no
    
    inappropriate factors were considered.
    
        On October 6, 2015, defendant pleaded guilty to third-degree
    
    burglary and fourth-degree resisting arrest by flight.                He was
    
    sentenced to two years' probation.         Defendant was also ordered to
    
    pay $3000 in restitution to his victims.
    
        Defendant appeals the denial of PTI.                See R. 3:28(g).      He
    
    argues:
    
               THE   LAW   DIVISION   SHOULD  HAVE   ADMITTED
               APPELLANT INTO THE PRETRIAL INTERVENTION
               ("PTI") PROGRAM BECAUSE APPELLANT WAS A FIRST-
               TIME OFFENDER WHO WAS NOT CHARGED WITH ANY
               CRIMES CREATING A PRESUMPTION AGAINST SUCH
               ADMISSION AND BECAUSE THE CRIMINAL DIVISION
               MANAGER'S REASONS FOR REJECTING HIS PTI
               APPLICATION (WHICH WERE LATER ADOPTED BY THE
               STATE)    WERE    SPECULATIVE,   LADEN    WITH
               GENERALITIES, BARE ON SUPPORTING FACTS, OVER
               INCLUSIVE, AND CONTRARY TO WELL-ESTABLISHED
               LAW.
    
                                         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
    ,
    
    
                                          6                               A-2474-15T2
    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.'"                 Waters, supra, 439
    
    N.J. Super. at 225 (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 Nwobu, supra, 139 N.J. at
    
    246).   "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).
    
                                             7                               A-2474-15T2
         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.
    
         "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)).
    
              "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)).]
    
                                   III.
    
         The prosecutor ultimately adopted the CDM's reasoning, which
    
    recommended rejection primarily on the nature of the offense of
    
    burglary and the victim's opposition to admitting defendant into
    
    the program.   Defendant claims the CDM improperly established a
    
    per se rule of exclusion when referencing the "potential for
    
    violence" created by the crime of burglary.     Here, by contrast,
    
    defendant has not demonstrated the CDM engaged in a categorical
    
                                      8                          A-2474-15T2
    denial.   Rather, the CDM's letter indicated a review of the nature
    
    of the offense, the desires of the victim, and the defendant's
    
    "background and circumstances."         Cf. State v. Caliguiri, 
    158 N.J. 28
    , 33 (1999) (finding an improper categorical rejection of PTI
    
    where "the prosecutor relied on a purported legislative belief
    
    that drug offenses near a school were 'deserving of enhanced
    
    punishment' and 'too serious for Pre-Trial Intervention'").3
    
         Moreover, the CDM could properly emphasize the seriousness
    
    of defendant's crime.     In Kraft, supra, the prosecutor similarly
    
    denied PTI based on "the nature of the offense" of third-degree
    
    burglary of an apartment.     265 N.J. Super. at 10.      The prosecutor
    
    found that "'a burglary of a dwelling is always a most serious
    
    offense'" for the same reasons given by the CDM here.           Id. at 116.
    
    We   found    "the   Prosecutor's   reasons     for   denying    defendant
    
    admittance into PTI were entirely unassailable."         Id. at 117.       We
    
    explained:
    
                      It cannot reasonably be disputed that the
                 burglary of a residence is a serious offense.
                 Nor can it be earnestly debated that such an
                 offense accounts for a legitimate source of
                 fear and anxiety on the part of homeowners.
                 Undoubtedly, these already existent and
    
    3
      Defendant argues Caliguiri, supra, established a presumption in
    favor of PTI for third-degree offenses. Rather, Caliguiri merely
    ruled that where there is a presumption against PTI, "the weight
    of the evidence to rebut the presumption against PTI [for a third-
    degree offense] need not be as great as if the defendant had been
    charged with a second-degree offense." 158 N.J. at 44.
    
                                        9                               A-2474-15T2
              justified fears would only be heightened if
              the public were to detect a lack of vigorous
              prosecution, whether real or perceived,
              relating to such offenses. In light of these
              factors, the Prosecutor's conclusion that the
              public interest would best be served in this
              matter by prosecution rather than by diversion
              can hardly be faulted.
    
              [Id. at 116.]
    
         In Kraft, supra, the trial court overturned the prosecutor's
    
    decision because "'nobody was home, it's not that he was in the
    
    house threatening somebody or there was a potential for violence.'"
    
    Id. at 117 (emphasis omitted).    We reversed, reasoning:
    
                   While it is true that there may have been
              no one present in the particular dwelling that
              defendant burglarized, the record indicates
              that this residence was part of an apartment
              complex   and   thus,    was    surrounded    by
              neighboring units. . . .            Under such
              circumstances,   there    clearly    existed   a
              significant potential for violence, which
              could easily have been realized if one of the
              victim's   neighbors   had    interrupted    the
              perpetrators in the middle of their crime.
              Thus, not only did the trial court err in
              attempting to downplay the severity of the
              particular   offense    involved    here,    its
              rationale for doing so was deficient.
    
              [Ibid.]
    
         Here, defendant similarly burglarized an apartment, raising
    
    the possibility occupants in neighboring apartments "could hear,
    
    and possibly even see" the burglars, just as the police later saw
    
    the burglars from outside the apartment.       Ibid.    Thus, there
    
    
                                     10                          A-2474-15T2
    clearly existed a potential for violence.                Indeed, one burglar
    
    appeared to be armed with a handgun gun which he pointed at the
    
    resident's dog.    Moreover, rather than comply with the officers'
    
    orders to surrender peaceably, the burglars engaged in a standoff
    
    before running outside of the apartment.
    
         Defendant    notes   the   CDM   stated      that   "defendant   has   not
    
    presented any compelling reasons which may justify his admission
    
    into [PTI]."    Defendant asserts this was a reference to Guideline
    
    3(i), which provides PTI is not ordinarily granted for certain
    
    categories of offenses, creates a presumption against admission,
    
    and requires an applicant to show "compelling reasons justifying
    
    the applicant's admission."       However, there is no indication the
    
    CDM, the prosecutor, or the trial court applied a presumption
    
    against admission.    In any event, "[b]ecause burglary of a home
    
    is similar to robbery, in the sense that it raises the public's
    
    concern regarding the threat of personal safety, it is a crime
    
    that implicates Guideline 3(i)."           State v. Baynes, 
    148 N.J. 434
    ,
    
    446 (1997) (citing Kraft, supra, 265 N.J. Super. at 117); see
    
    Guideline 3(i) (providing PTI should not ordinarily be granted for
    
    crimes   "deliberately    committed        with   violence    or   threat     of
    
    violence").    That is particularly true here, as one of the robbers
    
    was carrying and pointing a gun.            As noted by the trial court,
    
    this burglary was "on the more extreme end factually."
    
                                          11                               A-2474-15T2
         Defendant further asserts the CDM placed undue weight on the
    
    victim's   desires.   However,   N.J.S.A.    2C:43-12(e)(4)   requires
    
    prosecutors and CDMs to consider "[t]he desire of the . . . victim
    
    to forego prosecution," and the victim's opposition to PTI "is an
    
    appropriate factor to consider under Guideline 3 and N.J.S.A.
    
    2C:43-12(e)(4)," State v. Imbriani, 
    291 N.J. Super. 171
    , 180 (App.
    
    Div. 1996).   Given that the robbers broke into the victim's home,
    
    pointed a gun at his dog, attempted to steal his possessions, and
    
    damaged his apartment, the victim had valid reasons to oppose PTI,
    
    which were properly considered and weighed.        In any event, the
    
    Legislature and Rule 3:28 "leave the weighing process to the
    
    prosecutor or program director."      Wallace, supra, 146 N.J. at 585-
    
    86; accord Waters, supra, 439 N.J. Super. at 234.
    
         Defendant cites his age, education, children and motorcycle
    
    injuries, and claims he was under the influence leading up to the
    
    burglary, but those factors did not require PTI.          The CDM and
    
    prosecutor are presumed to have considered those factors. Wallace,
    
    supra, 146 N.J. at 584.   Indeed, the rejection letter stated that
    
    "defendant's application for [PTI] has been reviewed" and the
    
    "background and circumstances provided by" defendant have been
    
    "taken into consideration."   See id. at 588.
    
         We agree with the trial court that defendant did not show the
    
    denial of PTI (1) "was not premised upon a consideration of all
    
                                     12                            A-2474-15T2
    relevant   factors";   (2)   "was   based   upon   a   consideration       of
    
    irrelevant or inappropriate factors"; or (3) "amounted to a clear
    
    error in judgment."     Id. at 583.      Defendant certainly did not
    
    establish a "patent and gross abuse of discretion."         Ibid.
    
         Affirmed.
    
    
    
    
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