STATE OF NEW JERSEY VS. G.M.(15-10-1391, 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                            NOT FOR PUBLICATION WITHOUT THE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-5302-15T2
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    G.M.,
    
         Defendant-Appellant.
    ________________________________
    
                  Submitted October 10, 2017 – Decided October 18, 2017
    
                  Before Judges Sabatino and Whipple.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Indictment No.
                  15-10-1391.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Michele E. Friedman, Assistant
                  Deputy Public Defender, of counsel and on the
                  brief).
    
                  Esther Suarez, Hudson County Prosecutor,
                  attorney for respondent (Kerry J. Salkin,
                  Assistant Prosecutor, on the brief).
    
    PER CURIAM
         Defendant G.M.1 appeals the trial court's February 29, 2016
    
    order upholding the prosecutor's rejection of her application for
    
    admission to the pretrial intervention ("PTI") program, and her
    
    ensuing   conviction     of   fourth-degree      child   abuse   or    neglect,
    
    N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3.            Applying the strong judicial
    
    deference required in reviewing such prosecutorial denials, we
    
    affirm.
    
         Defendant is the mother of a young son, I.L.                 The child's
    
    father    is   H.L.,   who    was    a   co-defendant    with   G.M.   in   this
    
    prosecution.
    
         The charges against I.L.'s parents arose out of a situation
    
    of child endangerment that occurred on March 13 and 14, 2015, when
    
    their infant was then nine months old.            According to the State's
    
    investigation, H.L. was at the parties' residence playing with the
    
    child on the bed at around 4:30 p.m. when he received a Netflix
    
    notification on his cell phone.           When H.L. reached for the phone,
    
    the infant fell off the bed.         G.M., who was in another room, heard
    
    a bang and H.L. called out to her that the infant had fallen.
    
         According to the parents, they did not immediately notice any
    
    bump on the child's head.           The parents then went out together as
    
    H.L. performed his job delivering pizzas, bringing the infant
    
    
    1
      We use initials to protect the privacy and identity of G.M.'s
    minor child.
    
                                             2                              A-5302-15T2
    along with them.      H.L. admitted that he smoked marijuana during
    
    one of his delivery stops that evening.
    
         Around 10:30 p.m., the parents noticed that the infant was
    
    exhibiting a bump on his head.      The parents at that point decided
    
    to take the child to Jersey City Medical Center.             G.M. allowed
    
    H.L. to drive with the infant in the car, even though the State
    
    contends she had seen him smoking marijuana.
    
         As   reflected   on   the   hospital's   surveillance    video,   the
    
    parents did not arrive at the Jersey City Medical Center until
    
    almost midnight, more than an hour after they noticed the infant's
    
    swollen head.   According to the parents, they left the Jersey City
    
    Medical Center because they felt the infant was not being seen
    
    there in a timely manner.        They then drove to Hoboken Hospital.
    
    Along the way, the couple stopped so that H.L. could sell his
    
    marijuana to a friend.      They did so because H.L. realized that
    
    they would be reported to the Division of Child Protection and
    
    Permanency ("the Division") if they were found in possession of
    
    marijuana at the hospital.
    
         When the infant ultimately arrived at Hoboken Hospital, he
    
    was diagnosed with a skull fracture, internal bleeding, and an
    
    epidural hematoma.     The child had emergency surgery.        Meanwhile,
    
    the Division was notified. During ensuing interviews, both parents
    
    
    
                                        3                             A-5302-15T2
    admitted     that    they    had    smoked       marijuana,        although      G.M.    only
    
    admitted having done so on the day before the infant's fall.
    
          The State charged both parents as co-defendants with various
    
    offenses in a single indictment.                 G.M. was charged with two counts
    
    of second-degree endangering the welfare of a child, N.J.S.A.
    
    2C:24-4(a) (counts six and ten), and two counts of fourth-degree
    
    child abuse or neglect, N.J.S.A. 9:6-1 and 9:6-3 (counts seven and
    
    eleven).
    
          G.M., who has no prior criminal record, applied for admission
    
    to    PTI.      Although      the     court's          assistant      division      manager
    
    recommended     G.M.'s       admission      to        the    program,      the   prosecutor
    
    rejected her application.            In a two-page rejection letter, which
    
    he later amplified in his brief to the trial court, the prosecutor
    
    stressed several points.            Among other things, the prosecutor noted
    
    the   serious       nature    of    the   infant's           skull    fracture;      G.M.'s
    
    acquiescence in allowing H.L. to drive the infant around, despite
    
    her awareness that he had been smoking marijuana and was under the
    
    influence;     the    couple's      delay        in    bringing      the    child   to    the
    
    hospital, including the stop to make a drug transaction; and the
    
    fact that co-defendant H.L.'s case was still open when G.M. applied
    
    for PTI.
    
          G.M. filed a motion with the trial court seeking to set aside
    
    the   prosecutor's       rejection        of     her        PTI   application.          After
    
                                                 4                                      A-5302-15T2
    considering the parties' written submissions and oral argument,
    
    the trial judge denied the motion.          The judge frankly acknowledged
    
    that although he might personally have approved PTI for G.M., he
    
    was not persuaded on the record presented that the State's denial
    
    amounted to a "patent [and gross] abuse" of the prosecutor's
    
    discretion.    See State v. K.S., 
    220 N.J. 190
    , 199-200 (2015)
    
    (reaffirming the scope of review applicable to prosecutor denials
    
    of PTI).
    
         Following the trial court's ruling, G.M. negotiated a guilty
    
    plea to the fourth-degree charge of child abuse or neglect set
    
    forth in count eleven of the indictment.              The other charges were
    
    dismissed.    She    was   sentenced       to   a   period   of   two   years   of
    
    probation, consistent with the terms of the plea agreement.                     The
    
    plea agreement preserved G.M.'s right to reapply for PTI and, by
    
    inference, the present appeal of the court's PTI ruling.
    
         On appeal, G.M. makes the following singular argument in her
    
    brief:
    
               POINT I
    
               THE   PROSECUTOR'S  REJECTION    OF   [G.M.'S]
               APPLICATION   TO   BE   ADMITTED    INTO   PTI
               CONSTITUTED A PATENT AND GROSS ABUSE OF
               DISCRETION.
    
         Like the trial judge, we must be mindful that the Judiciary's
    
    authority to second-guess prosecutorial decisions on PTI admission
    
    
                                           5                                 A-5302-15T2
    is extremely narrow.         Given "the close relationship of the PTI
    
    program   to   the   prosecutor's      charging   authority,    courts     allow
    
    prosecutors wide latitude in deciding whom to divert into the PTI
    
    program and whom to prosecute through a traditional trial."                State
    
    v. Negran, 
    178 N.J. 73
    , 82 (2003) (citing State v. Nwobu, 
    139 N.J. 236
    , 246 (1995)).          This deference to the prosecutor has been
    
    described as "'enhanced' or 'extra'" in nature.                Ibid. (citing
    
    State v. Baynes, 
    148 N.J. 434
    , 443-44 (1997)).
    
          It is well settled that the scope of judicial review of a
    
    prosecutor's objection to a defendant's admission into PTI is
    
    severely limited.     Ibid.; see also Nwobu, supra, 139 N.J. at 246;
    
    State v. Hermann, 
    80 N.J. 122
    , 128 (1979).           As the Court observed
    
    in Negran, judicial review of PTI denials "serves to check only
    
    the   'most    egregious    examples    of   injustice   and    unfairness.'"
    
    Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 
    73 N.J. 360
    , 384 (1977)); State v. DeMarco, 
    107 N.J. 562
    , 566 (1987).
    
          In accordance with these principles, a defendant seeking to
    
    overcome a prosecutorial veto of PTI admission must "'clearly and
    
    convincingly establish that the prosecutor's refusal to sanction
    
    admission into a PTI program was based on a patent and gross abuse
    
    of his discretion' before a court can suspend criminal proceedings
    
    under Rule 3:28 without prosecutorial consent."                Negran, supra,
    
    178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246).              See also
    
                                            6                                A-5302-15T2
    K.S., supra, 220 N.J. at 199-200 (reaffirming a defendant's "clear
    
    and convincing" burden to show a "patent and gross abuse" of a
    
    prosecutor's discretion in denying PTI).
    
         We agree with the trial court's assessment that G.M. has
    
    failed   to   surmount   this   "clear   and   convincing"   burden     here.
    
    Although the fact pattern suggests that the father, H.L., was more
    
    culpable then G.M. in placing the infant at risk, the overall
    
    sequence of events is one in which the prosecutor had ample
    
    justification to decline G.M.'s PTI application, despite her lack
    
    of a prior criminal record.       We further note that counts six and
    
    ten of the indictment charged G.M. with the second-degree offense
    
    of child endangerment, a level of offense severity which triggers
    
    a presumption against admission into PTI. See Pressler & Verniero,
    
    Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1291 (2018);
    
    see also State v. Waters, 
    439 N.J. Super. 215
    , 226 (App. Div.
    
    2015).   That presumption was not clearly overcome here.
    
         Affirmed.
    
    
    
    
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