STATE OF NEW JERSEY VS. DANILLE M. SABO (18-02-0131, SOMERSET COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2199-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIELLE M. SABO,
Defendant-Appellant.
_________________________
Argued telephonically April 20, 2020 –
Decided May 13, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 18-02-
0131.
Susan L. Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan L. Romeo, of counsel
and on the brief).
Paul H. Heinzel, Assistant Prosecutor, argued the cause
for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul H. Heinzel, of
counsel and on the brief).
PER CURIAM
Defendant Danielle M. Sabo appeals from an order denying her appeal of
the Somerset County Prosecutor's rejection of her application for admission into
the Pretrial Intervention (PTI) program. Because we are convinced the
prosecutor considered an inappropriate factor—that defendant engaged in a
pattern of anti-social behavior—in making the decision to reject defendant's
application, we vacate the court's order and remand to the prosecutor to
reconsider and decide defendant's application based solely on appropriate
factors.
The pertinent facts are not disputed. During an October 2017 motor
vehicle stop, a New Jersey State Trooper observed defendant, a passenger in the
vehicle, nodding in and out of consciousness. In response to the officer's inquiry
whether there were any drugs in the vehicle, defendant removed fifty glassine
wax folds of heroin from her pants. She told the State Trooper the heroin was
hers and the driver had no knowledge of it.
A grand jury returned an indictment charging defendant with third-degree
unlawful possession of a controlled dangerous substance, N.J.S.A. 2C:35 -
10(a)(1). Defendant applied for admission to the PTI program. The Somerset
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County PTI Supervisor recommended defendant's acceptance to the program,
but the prosecutor subsequently rejected defendant's application.
In support of the rejection decision, the prosecutor relied on factor two,
the facts of the case, N.J.S.A. 2C:43-12(e)(2); factor eight, the extent to which
defendant's crime constitutes part of a continuing pattern of anti-social behavior,
N.J.S.A. 2C:43-12(e)(8); factor twelve, defendant's history of the use of physical
violence against others, N.J.S.A. 2C:43-12(e)(12); factor fourteen, whether the
crime is of such a nature that the value of supervisory treatment is outweighed
by the need for prosecution, N.J.S.A. 2C:43-12(e)(14); and factor seventeen,
whether the harm to society by abandoning criminal prosecution outweighs the
benefits from channeling defendant into a supervisory treatment program,
N.J.S.A. 2C:43-12(e)(17).
The prosecutor based the findings of factors eight and twelve on the
following facts. Defendant has a juvenile history including a 1996 adjudication
for simple assault; 1997 adjudications for fourth-degree aggravated assault,
fourth-degree resisting arrest, and disorderly persons simple assault; and a 1999
adjudication for simple assault. Defendant received probationary dispositions
for each adjudication. In 2006, defendant was convicted as an adult of the petty
disorderly persons offense of disorderly conduct.
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The prosecutor noted defendant's "possession of fifty wax folds of heroin"
and "signs of impairment at the time of the offense" as the basis for the finding
of factor two. The prosecutor based the findings of factors fourteen and
seventeen on the conclusion that "the pervasive nature of the addiction epidemic
in New Jersey" renders "it imperative that heroin possession is charged and
prosecuted and diverted only . . . in appropriate circumstances." The prosecutor
concluded defendant did not present appropriate circumstances because her
"history reveals a pattern of anti-social behavior and at times violent behavior."
The prosecutor explained that all of the statutory factors pertinent to a
decision to admit a defendant to PTI were considered, see N.J.S.A. 2C:43-12(e),
but that "on balance" the factors disfavor defendant's admission to the program.
Thus, the prosecutor rejected defendant's application.
Defendant appealed the prosecutor's decision to the Law Division.
Following oral argument, the court issued a detailed written opinion denying
defendant's appeal from the PTI rejection. The court found the prosecutor
appropriately considered factors two, twelve, fourteen, and seventeen in support
of the rejection decision but inappropriately considered factor eight. More
particularly, the court determined defendant's 1996, 1997, and 1999 juvenile
adjudications, and subsequent 2006 petty disorderly persons conviction, were
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too temporally remote from the commission of the 2017 drug offense "to
evidence an ongoing pattern of anti-social behavior."
The court determined that, "with the exception of factor eight, the
State . . . demonstrated an appropriate consideration of the statutory criteria
governing defendant's PTI application." The court noted the deference afforded
to a prosecutor's decision denying admission to the PTI program, and it
concluded defendant failed to demonstrate the prosecutor's denial of her
application constituted a patent and gross abuse of discretion. The court entered
an order denying defendant's appeal from the prosecutor's rejection of her
application. This appeal followed.
Defendant presents the following argument for our consideration:
THE PROSECUTOR'S DECISION TO REJECT
DEFENDANT'S PTI APPLICATION MUST BE
REVERSED BECAUSE, AS THE TRIAL COURT
CORRECTLY FOUND, THE DECISION WAS
BASED ON AT LEAST ONE INAPPROPRIATE
FACTOR.
"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. Johnson, 238 N.J. 119, 127 (2019)
(quoting State v. Roseman, 221 N.J. 611, 621 (2015)). The decision to admit or
not admit a defendant into the PTI program is "a 'quintessentially prosecutorial
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function,'" and, therefore, "[a] court reviewing a prosecutor's decision to deny
PTI may overturn that decision only if the defendant 'clearly and convincingly'
establishes the decision was a 'patent and gross abuse of discretion.'" Id. at 128-
29 (citations omitted). We apply the same standard of review as the Law
Division and review the court's decision de novo. State v. Waters, 439 N.J.
Super. 215, 226 (App. Div. 2015).
"Ordinarily, an abuse of discretion will be manifest if [the] 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." Roseman,
221 N.J. at 625 (citation omitted). To establish an abuse of discretion is patent
and gross, a defendant must also show "the prosecutorial error complained of
will clearly subvert the goals underlying" PTI. Ibid. (citation omitted).
Defendant argues the prosecutor inappropriately considered factor eight
because, as the Law Division judge found, defendant's 1996, 1997, and 1999
juvenile adjudications and 2006 petty disorderly persons conviction are too
temporally remote to support a finding defendant's offense is part of a pattern of
anti-social behavior. The State asserts that, given the nature of the offenses
comprising defendant's history of adjudications and convictions, it was not
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inappropriate to consider them in determining if defendant's current offense is
part of a pattern of anti-social behavior.
In State v. Brooks, the Court explained that a prosecutor could properly
consider a defendant's juvenile record in determining suitability for admission
into PTI. 175 N.J. 215, 219, 227 (2002). The Court determined a prosecutor
"may consider not only serious criminal acts, but less serious conduct, including
disorderly person offenses, offenses found under the juvenile code, and acts that
technically do not rise to the level of adult criminal conduct" in the assessment
of whether a defendant's offense constitutes part of a "pattern of anti-social
behavior." Id. at 227. However, the Court also noted that "some juvenile
infractions may be so minor or distant in time that they provide no reasonable
basis to support a prosecutor's rejection of PTI in a given case." Id. at 219.
In State v. Negran, the Court found the prosecutor's reliance on the
defendant's twelve-year-old conviction for driving while intoxicated and ten-
year-old conviction for speeding "too temporally distant to reasonably support
the State's assertion of a pattern of anti-social behavior such that PTI should be
denied." 178 N.J. 73, 85 (2003). The Court further noted that although the
defendant's current offense "involved [the] use of alcohol while driving, as did"
her prior driving-while-intoxicated offense, the "substantive connection
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between the [offenses] does not overcome the unreasonableness of the State 's
use of such stale prior infractions to support an allegation of a pattern of
behavior." Id. at 85.
We agree with the court's conclusion that defendant's juvenile
adjudications, which were respectively eighteen, twenty, and twenty-one years
old when her present offense was allegedly committed, and her eleven-year-old
petty disorderly persons conviction, are too remote and stale to support a
reasonable conclusion defendant's 2017 offense is part of a pattern of anti-social
behavior. There is no substantive connection between defendant's current
offense and any of her prior offenses, and the passage of eleven years since her
most recent conviction undermines the prosecutor's conclusion defendant's
current offense constitutes a part of a pattern of anti-social behavior. We
therefore agree with the court that the prosecutor considered an inappropriate
factor—that defendant's current offense is part of a pattern of anti-social
behavior—to support the decision denying defendant's admission into PTI.
We are not, however, persuaded by defendant's claim the prosecutor
improperly considered factor twelve based on defendant's three separate juvenile
adjudications for violent offenses. Defendant argues the adjudications are too
remote, old, and stale to properly support a factor-twelve finding.
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N.J.S.A. 2C:43-12(e)(12) requires that the prosecutor consider a
defendant's "history of the use of physical violence toward others." That is
precisely what the prosecutor did in considering defendant's juvenile
adjudications—all of which involved offenses involving the use of physical
violence. We cannot conclude the prosecutor considered an inappropriate factor
where the prosecutor complied with a clear and unambiguous statutory dictate,
see N.J.S.A. 2C:43-12(e), and the prosecutor's finding is supported by the
record. We note, however, the prosecutor's written statement of reasons does
not explain the manner in which defendant's twenty-year-old adjudications for
violent offenses, committed while she was juvenile, "led [the prosecutor] to
conclude that admission should be denied." State v. Nwobu, 139 N.J. 236, 249
(1995) (quoting State v. Sutton, 80 N.J. 110, 117 (1979)).
Where, as here, the prosecutor relied on an inappropriate factor, the
appropriate remedy is to remand for the prosecutor to reconsider the decision
denying admission into the PTI program without consideration of the factor. See
Johnson, 238 N.J. at 129 (finding where there is a legal error by the prosecutor
in denying admission to PTI, "a remand to the prosecutor may be appropriate so
she or he may rightly reconsider the application"). We therefore reverse the
court's order denying defendant's appeal from the prosecutor's rejection of her
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PTI application, and we remand to the prosecutor for reconsideration of
defendant's application without any finding of factor eight. Because the
prosecutor's findings of factors fourteen and seventeen are founded in part on an
incorrect conclusion defendant's present offense is part of a pattern of anti-social
behavior, on remand the prosecutor shall also reconsider the prior findings of
factors fourteen and seventeen without reliance on any determination
defendant's current offense is part of a pattern of anti-social behavior.
If defendant's application is again rejected, the prosecutor shall provide a
written statement of findings and the reasons for the decision. N.J.S.A. 2C:43-
12(c). "[T]he statement of reasons must not be vague. Rather, the prosecutor's
reasons for rejection of the PTI application must be stated with 'sufficient
specificity so that defendant has a meaningful opportunity to demonstrate that
they are unfounded.'" Nwobu, 139 N.J. at 249 (quoting State v. Maddocks, 80
N.J. 98, 109 (1979)). For example, if the prosecutor again relies on defendant's
history of physical violence, as reflected in decades-old juvenile adjudications,
the prosecutor shall precisely explain the manner in which the history supports
the denial decision.
Reversed and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
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