STATE OF NEW JERSEY VS. ROBERT HERDÂ (16-06-1041, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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                           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-3036-16T1
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Appellant,
    
    v.
    
    ROBERT HERD,
    
            Defendant-Respondent.
    
    
                    Argued November 8, 2017 – Decided November 27, 2017
    
                    Before Judges Carroll and Leone.
    
                    On appeal from Superior Court of New Jersey,
                    Law Division, Middlesex County, Indictment No.
                    16-06-1041.
    
                    David M. Liston, Assistant Prosecutor, argued
                    the cause for appellant (Andrew C. Carey,
                    Middlesex County Prosecutor, attorney; Mr.
                    Liston, of counsel and on the brief).
    
                    Rebecca   Gindi,   Assistant   Deputy   Public
                    Defender, argued the cause for respondent
                    (Joseph E. Krakora, Public Defender, attorney;
                    Ms. Gindi, of counsel and on the brief).
    
    PER CURIAM
    
            The State appeals from an order admitting defendant Robert
    
    Herd     into    the   Pretrial    Intervention     Program    (PTI)    over       the
    prosecutor's objection.      The State contends the motion judge
    
    substituted his judgment for that of the prosecutor, and the
    
    prosecutor's decision to reject defendant's PTI application was
    
    based on a thorough consideration of all appropriate factors and
    
    did not constitute a gross and patent abuse of discretion.            We
    
    agree with the State and reverse.
    
                                      I.
    
          The following facts are set forth in the PTI recommendation
    
    report submitted by the Criminal Division Manager serving as PTI
    
    Director.   On January 19, 2016, an undercover investigator with
    
    the   Middlesex   County   Prosecutor's   Office   (MCPO)   Task   Force
    
    completed a controlled purchase of .99 grams of marijuana from
    
    defendant for $20.     The transaction took place within 1000 feet
    
    of Mill Lake Elementary School and within 500 feet of the Monroe
    
    Community Center.    On January 27, 2016, an undercover MCPO officer
    
    completed a second controlled purchase of 7.06 grams of marijuana
    
    from defendant for $110.
    
          These drug transactions resulted in defendant's arrest on
    
    March 29, 2016.     Following his arrest, police observed defendant
    
    chewing on a green vegetation they believed to be marijuana.         The
    
    police asked defendant how much marijuana he ate, to which he
    
    responded he "didn't eat shit."
    
    
    
                                      2                            A-3036-16T1
         Defendant      was   subsequently      charged   in     Middlesex     County
    
    Indictment    No.    16-06-1041     with    two   counts     of   fourth-degree
    
    distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A.
    
    2C:35-5(b)(12) (counts one and four); third-degree distribution
    
    of marijuana on or near school property, N.J.S.A. 2C:35-7 (count
    
    two); third-degree distribution of marijuana within 500 feet of
    
    public property, N.J.S.A. 2C:35-7.1 (count three); and fourth-
    
    degree evidence tampering, N.J.S.A. 2C:28-6(1).
    
         Defendant      applied   for     admission    into     PTI   after   he    was
    
    indicted.     The Criminal Division Manager, as the PTI Director,
    
    recommended defendant's admission into PTI.                  According to the
    
    recommendation report, defendant was then an unmarried twenty-two
    
    year old high school graduate who had attended one semester of
    
    college.      He    was   currently    unemployed     but    actively     seeking
    
    employment.        He reported smoking marijuana daily when he was
    
    younger, but recently smoked only occasionally.                   Documentation
    
    showed defendant participated in counselling programs in 2015 and
    
    2016 for treatment of alcohol use disorder and cannabis use
    
    disorder.
    
         The report stated defendant had a record of two juvenile
    
    offenses in 2007 that were dismissed.             As an adult, defendant had
    
    municipal court convictions for criminal trespass and wandering,
    
    
    
                                            3                                 A-3036-16T1
    a local ordinance violation, and a traffic violation for underage
    
    drinking.
    
           The   report   recommended   defendant's          admission       into    PTI,
    
    conditioned upon a substance abuse evaluation, compliance with all
    
    treatment    recommendations,     and       random    urine     monitoring.       The
    
    report also recommended defendant be required to continue his
    
    education or procure and maintain employment, and remain offense
    
    free.
    
           At a January 9, 2017 status conference, the prosecutor advised
    
    the court he was still considering defendant's application.                        He
    
    elaborated: "[M]y instinct is to reject [defendant] for PTI.                         I
    
    don't believe he's an appropriate candidate for supervision."                     The
    
    prosecutor proposed that defendant submit to a urine test, which
    
    defendant declined on the advice of counsel. The prosecutor stated
    
    defendant's decision to refuse the test was "neither here nor
    
    there," and would "not weigh[] either way" in his decision to
    
    approve or deny defendant's application.
    
           On January 15, 2017, the prosecutor issued a lengthy letter
    
    rejecting     defendant's      application,          thereby        overriding    the
    
    Director's recommendation.       The prosecutor explained he considered
    
    "all    information    about     [defendant]         that      is     positive    and
    
    favorable," and each of the seventeen criteria identified in
    
    
    
                                            4                                   A-3036-16T1
    N.J.S.A. 2C:43-12(e).   We quote from the rejection letter at
    
    length:
    
              Subsections 1 and 2. The Nature of the Offense
              and Facts of the Case. During . . . January
              [] 2016, defendant engaged in the distribution
              of     marijuana    in    Monroe     Township.
              Specifically, on two separate occasions
              defendant sold a quantity of marijuana to an
              undercover officer. The first sale was also
              within 1000 feet of the Mill Lake Elementary
              School and within 500 feet of the Monroe
              Community Center.       On March 29, 2016,
              defendant was arrested by officers from the
              Monroe    Township   Police    Department   in
              connection with charges relating to the prior
              drug sales. After he was placed under arrest,
              the officers observed defendant chewing on
              something and he had what appeared to be
              marijuana stuck to his lips and teeth.
    
              Subsection 3. The Motivation and Age of the
              Defendant.   Defendant is [twenty-two] years
              old and has indicated in the PTI Report that
              he would be a good candidate for PTI because
              it is the first time he is really in trouble,
              he wants to get his life back on track, he is
              trying to work and wants to go back to school.
              He further indicated that PTI would provide
              structure and would still allow him to get a
              job. Finally, he stated that he made a mistake
              and is trying to do the right thing.
    
              Subsection 4. The desire of the complainant
              or victim to forgo prosecution. This factor
              is not applicable in the instant case.
    
              Subsection 5.     The Existence of Personal
              Problems and Character Traits Which May be
              Related to the Applicant's Crime and For Which
              Services are Unavailable Within the Criminal
              Justice System, or Which may be Provided More
              Effectively Through Supervisory Treatment and
              the Probability that the Causes of Criminal
    
                                    5                          A-3036-16T1
    Behavior can be Controlled by Proper Treatment
    and Subsection 6.    The Likelihood that the
    Applicant's Crime is Related to a Condition
    or Situation That Would be Conducive to Change
    Through his Participation in Supervisory
    Treatment. There are no "personal problems"
    or "character traits" which are unique to this
    defendant for which services would only be
    available outside the criminal justice system.
    Further, since the defendant has never been
    subject to supervisory treatment there is no
    way to tell whether he would be conducive to
    change if given the opportunity.
    
    Subsection 7. The Needs and Interest of the
    Victim and Society.      While there is no
    specific victim of defendant's crimes, our
    communities as a whole suffer as a result of
    the actions of those who distribute drugs.
    Society has a strong interest in deterring
    individuals from such conduct.    There is a
    need for both specific and general deterrence
    in this case.
    
    Subsection 8.       The Extent to Which the
    Applicant's Crime Constitutes Part of a
    Continuing Pattern of Antisocial Behavior and
    Subsection 9.      The Applicant's Record of
    Criminal and Penal Violations and the Extent
    to Which He May Present a Substantial Danger
    to Others.    Although[] the defendant has no
    prior indictable record, the instant offense
    appears to be part of a pattern of antisocial
    behavior.    Defendant repeatedly engaged in
    criminal activity in January and March[,]
    2016.   Furthermore, his two prior municipal
    convictions along with the instant arrest
    failed to deter his criminal activity, as he
    admitted to smoking marijuana until August []
    2016, approximately five months after his
    arrest[.]
    
    
    
    
                          6                          A-3036-16T1
    Subsection 10. Whether or Not the Crime is
    of an Assaultive or Violent Nature, Whether
    in the Criminal Act Itself or the Possible
    Injurious Consequences of Such Behavior. This
    factor is not applicable in the instant case.
    
    Subsection 11.   Consideration of Whether or
    Not Prosecution Would Exacerbate the Social
    Problem that led to the Applicant's Criminal
    Act.   This factor is not applicable in the
    instant case.
    
    Subsection 12.    The History of the Use of
    Physical   Violence  Toward   Others.   The
    defendant has no history of the use of
    physical violence toward others.
    
    Subsection 13. An Involvement With Organized
    Crime. This factor is not applicable in the
    instant case.
    
    Subsection 14. Whether or Not the Crime is
    of Such a Nature that the Value of Supervisory
    Treatment Would be Outweighed by the Public
    Need for Prosecution and Subsection 17.
    Whether or Not the Harm Done to Society by
    Abandoning     Criminal     Prosecution   Would
    Outweigh   the    Benefits   to   Society  From
    Channeling an Offender Into a Supervisory
    Treatment Program. Channeling this particular
    offender into the PTI program would harm
    society by sending a message which would
    minimize and trivialize the severity of
    defendant's actions.       Any benefit to the
    defendant from acceptance into the PTI program
    would be far outweighed by the harmful message
    sent to society that such offenses merit a
    diversionary program.
    
    
    
    
                          7                           A-3036-16T1
              Subsection 15. Whether or Not the Applicant's
              Involvement With Other People in the Crime
              Charged or in Other Crime is Such That the
              Interest of the State Would Best be Served by
              Processing the Case Through Traditional
              Criminal Justice System Procedures.      This
              factor is not applicable in the instant case.
    
              Subsection 16. Whether or Not the Applicant's
              Participation in Pretrial Intervention Will
              Adversely    Affect  the    Prosecution    of
              Codefendants. This factor is not applicable
              in the instant case.
    
              These factors taken as a whole, and especially
              subsections N.J.S.A. 2C:43-12(e)1, 2, 7, 8,
              14, and 17, strongly weigh against the
              defendant's enrollment in PTI.      While the
              defendant has no prior indictable record, his
              actions constituted a continuing pattern of
              antisocial activity and the seriousness of the
              offense and the public need for prosecution
              outweigh the positive factors that have been
              presented.    See State v. Kraft, 265 N.J.
              Super.   106,   116-17   (App.   Div.   1993).
              Therefore, the State must reject [defendant]
              from PTI.
    
         Defendant appealed the denial of his PTI application.     In a
    
    written decision, the judge found, with respect to factors one and
    
    two, that the quantity of the drugs involved was small and "the
    
    buys were solicited by the State and the State controlled the
    
    meeting place."   As to factor three, the judge found defendant
    
    appeared remorseful and his desire to turn his life around "would
    
    be impeded if any one of these charges were to show on his record."
    
         The judge expressed "concern" over the State's weighing of
    
    factors five, eight and nine.   The judge instead found it was not
    
                                     8                         A-3036-16T1
    a negative factor that defendant had not previously been subject
    
    to supervisory treatment, and defendant's two drug sales, evidence
    
    tampering, and three municipal convictions did not constitute a
    
    pattern of criminal behavior.         The judge reasoned that defendant's
    
    attempt   to   swallow    marijuana    at   the   time   of   his    arrest   was
    
    "demonstrative    of     his   addiction"   and   his    "prior     record    only
    
    establishes the continued control [his] addiction has on him."
    
         The judge found "[t]he State was correct to argue under
    
    [f]actor [seven] . . . that society has a strong interest in
    
    deterring individuals from such conduct[,]" but also "society has
    
    a strong interest in rehabilitating addiction."               Disagreeing with
    
    the State that factor eleven did not apply, the judge "[found]
    
    that not only does it apply, but PTI supervision would enhance
    
    [d]efendant's motivation for rehabilitation and completion of the
    
    program."      In a similar vein, the judge also determined that
    
    factors fourteen and seventeen weighed in defendant's favor.                   The
    
    judge explained:
    
                While there is a need to demonstrate that the
                State takes prosecution of all offenses
                seriously, that does not require prosecution
                of every defendant when there is an option to
                divert   a  defendant    into  a   supervisory
                treatment program when that defendant has a
                need, like addiction.      There is a public
                interest and need in the rehabilitative aspect
                of   PTI.      Not   only   does   PTI   offer
                rehabilitation, but it offers an incentive to
                be successful in that rehabilitation.
    
                                           9                                A-3036-16T1
           Ultimately,      the      judge    viewed        the    State's     position         as
    
    "unsustainable as it was reflexive in nature, [and] premised upon
    
    a failure to give due and proper weight to all the factors to be
    
    assessed . . . [and] in several instances to conduct the requisite
    
    individualized assessment necessary[.]"                   Based on these findings,
    
    the judge concluded "[t]here exists clear and convincing evidence
    
    that   the    State     abused    its    discretion       in     denying      [d]efendant
    
    admission into PTI."          This appeal followed.
    
                                                  II.
    
           "PTI   is    a   'diversionary          program        through    which      certain
    
    offenders are able to avoid criminal prosecution by receiving
    
    early rehabilitative services expected to deter future criminal
    
    behavior.'"        State v. Roseman, 
    221 N.J. 611
    , 621 (2015) (quoting
    
    State v. Nwobu, 
    139 N.J. 236
    , 240 (1995)).                       Accordingly, "a PTI
    
    determination requires that the prosecutor make an individualized
    
    assessment of the defendant considering his or her 'amenability
    
    to correction' and potential 'responsiveness to rehabilitation.'"
    
    Id. at 621-22 (quoting State v. Watkins, 
    193 N.J. 507
    , 520 (2008)).
    
           The scope of judicial review of the prosecutor's rejection
    
    of PTI is "severely limited."                 State v. Negran, 
    178 N.J. 73
    , 82
    
    (2003).       Deciding    whether        to    permit    diversion       to   PTI     "is    a
    
    quintessentially prosecutorial function."                      State v. Wallace, 146
    
    
                                                  10                                    A-3036-16T1
    N.J. 576, 582 (1996).           "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."             Nwobu, supra, 139 N.J. at 246
    
    (quoting Kraft, supra, 265 N.J. Super. at 111-12).                 Accordingly,
    
    courts give prosecutors "broad discretion" in determining whether
    
    to divert a defendant into PTI.             State v. K.S., 
    220 N.J. 190
    , 199
    
    (2015).       Thus, courts must "accord[] enhanced deference to a
    
    prosecutor's decision in respect of a PTI application."                 State v.
    
    Brooks, 
    175 N.J. 215
    , 225 (2002).
    
           The PTI statute requires prosecutors to consider a non-
    
    exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These
    
    criteria "include 'the details of the case, defendant's motives,
    
    age,   past      criminal      record,    standing    in   the   community,    and
    
    employment performance[.]'"               Roseman, supra, 221 N.J. at 621
    
    (quoting Watkins, supra, 193 N.J. at 520).
    
           "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.'"
    
    Watkins, supra, 193 N.J. at 520 (citation omitted).                "A patent and
    
    gross abuse of discretion is defined as a decision that 'has gone
    
    so   wide   of    the   mark    sought    to   be   accomplished   by   PTI   that
    
                                              11                             A-3036-16T1
    fundamental fairness and justice require judicial intervention.'"
    
    Ibid. (citation omitted).           An abuse of discretion is manifested
    
    where it can be proven "that the [PTI] denial '(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[.]'"               State v. Lee, 437 N.J.
    
    Super. 555, 563 (2014) (quoting State v. Bender, 
    80 N.J. 84
    , 93
    
    (1979)), certif. denied, 
    222 N.J. 18
     (2015).
    
           Even if a "'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,'" that
    
    constitutes only "'an abuse of discretion.'"               Wallace, supra, 146
    
    N.J. at 583.      "A 'patent and gross abuse of discretion' is more
    
    than     just     an      abuse     of        discretion       as   traditionally
    
    conceived[.]"      Id. at 582-83.          "'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.'"                    Id.
    
    at 583 (citation omitted).           "We must apply the same standard as
    
    the    trial    court,"   and     review      the   "judge's    reversal   of    the
    
    prosecutor's decision de novo."            State v. Waters, 
    439 N.J. Super. 215
    , 226 (App. Div. 2015).
    
                                             12                                A-3036-16T1
           Guided by these standards, we conclude the judge erred in
    
    ordering defendant's admission into PTI over the prosecutor's
    
    objection.    We are convinced from our review of the record that
    
    the   prosecutor   considered,   weighed,   and    balanced   all    of   the
    
    requisite factors, including those personal to defendant as well
    
    as the facts and circumstances of the offense.
    
          The prosecutor not only gave significant emphasis to the
    
    circumstances of the offense, but also considered defendant's
    
    individual characteristics.      The prosecutor considered mitigating
    
    factors personal to defendant, such as his age, background and
    
    motivation to complete the PTI program and turn his life around.
    
          The   prosecutor   did   not   consider   inappropriate       factors.
    
    Contrary to defendant's argument, the prosecutor stated he would
    
    not weigh defendant's refusal to submit to a urine test against
    
    him, and that refusal played no role in the prosecutor's ultimate
    
    analysis.
    
          The judge erred by interjecting himself into the process of
    
    weighing the applicable PTI factors, and predicated his decision
    
    upon his own assessment of those factors.         Contrary to the judge's
    
    determination, the prosecutor's assessment of factors eight and
    
    nine was not inaccurate.       Rather, the prosecutor's position that
    
    defendant's two drug sales, tampering with evidence, subsequent
    
    marijuana use, and prior municipal convictions, established a
    
                                         13                             A-3036-16T1
    pattern of antisocial behavior, finds clear support in the record.
    
    The judge also misread factor eleven to refer to rehabilitation
    
    when by its terms that factor focuses on whether "prosecution
    
    would   exacerbate   the   social   problem    which   caused   defendant's
    
    criminal act."
    
         Here, defendant was charged with a number of offenses spanning
    
    three   different    dates,   including    distributing   marijuana   in    a
    
    school zone.   As the State points out, "[t]he school zone statute
    
    creates the presumption against PTI[.]"          State v. Caliguiri, 
    158 N.J. 28
    , 43 (1999).1       Defendant responds that New Jersey's drug
    
    laws have undergone substantial changes since 1999, thus rendering
    
    the holding in Caliguiri inapplicable to the present case.2                We
    
    need not decide the issue, since in any event the judge improperly
    
    discounted defendant's drug sales and their location because they
    
    were controlled purchases.      Even if the undercover officer(s) made
    
    the purchases and chose the location, defendant was willing to
    
    sell the drugs at that location.         In his brief to the trial court,
    
    
    1
      The State did not present this argument to the trial court and
    consequently the judge did not rule on the issue.
    2
      Defendant also argues that "marijuana's classification as a
    Schedule I substance, pursuant to N.J.S.A. 24:21-5, can no longer
    be maintained in light of the adoption of the New Jersey
    Compassionate Use Medical Marijuana Act," N.J.S.A. 24:6I-1 to -
    16. However, the Medical Marijuana Act has not yet resulted in a
    change in the classification of marijuana, and in any event the
    court did not cite it as a basis for its decision.
    
                                        14                             A-3036-16T1
    defendant conceded that factor seven, "[t]he needs and interests
    
    of society," bore "considerable weight against [him]."                  Moreover,
    
    the judge relied on the importance of addressing defendant's
    
    addiction, but defendant never contended he was addicted, or that
    
    addiction caused him to make the sales or swallow the marijuana.
    
          While   reasonable      minds    could    differ     in    analyzing      and
    
    balancing     the    applicable     factors     in    this      case,    judicial
    
    disagreement with a prosecutor's reasons for rejection does not
    
    equate to a clear error of judgment or an abuse of discretion by
    
    the prosecutor.      State v. DeMarco, 
    107 N.J. 562
    , 566-67 (1987).
    
    In   this   instance,   the    judge    improperly     substituted       his    own
    
    discretion for that of the prosecutor.               Also, defendant did not
    
    show and the judge did not find that the prosecutor's decision
    
    would   clearly     subvert   the     goals   underlying     PTI.       Thus,   the
    
    prosecutor's rejection of defendant's PTI application was not a
    
    patent and gross abuse of discretion. We are therefore constrained
    
    to reverse and remand for further proceedings on the indictment.
    
          Reversed and remanded.
    
    
    
    
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