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a5439-06.opn.html
N.J.S.A. 2C:39-4d. Although the Pretrial Intervention Program (PTI) Supervisor recommended defendant as an
appropriate candidate for admission to PTI, the Monmouth County Prosecutor rejected defendant's application.
Defendant appealed the rejection and the Law Division judge, over the State's objection, admitted him into the
program. The State appeals and we reverse.">
The status of this decision is unpublished
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5439-06T55439-06T5
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DENNIS TORRE,
Defendant-Respondent.
Argued January 22, 2008 - Decided
Before Judges Lintner and Parrillo.
On appeal from the Superior Court of
New Jersey, Law Division, Monmouth County, 07-02-363.
Mary R. Juliano, Assistant Prosecutor, argued the cause for appellant (Luis A. Valentin,
Monmouth County Prosecutor, attorney; Ms. Juliano, Assistant Prosecutor, of counsel
and on the brief).
Charles J. Uliano argued the cause for respondent (Chamlin, Rosen, Uliano &
Witherington, attorneys; Mr. Uliano, of counsel; Andrew T. Walsh, on the brief).
PER CURIAM
After waiving indictment, defendant, Dennis Torre, pled not guilty to Accusation No. 07-02-363 charging him with
third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Although the Pretrial Intervention
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Program (PTI) Supervisor recommended defendant as an appropriate candidate for admission to PTI, the
Monmouth County Prosecutor rejected defendant's application. Defendant appealed the rejection and the Law
Division judge, over the State's objection, admitted him into the program. The State appeals and we reverse.
The facts surrounding the offense are somewhat disputed. According to the victim, Jeremiah Rice, he and a few
friends went to a tavern known as "Red's," when he was approached on the second floor by defendant, who accused
Rice of being gay. Rice responded that he was not gay and that defendant should "vacate the area." According to
Rice, defendant got agitated and asked Rice "what [he] was . . . going to do about it." Rice pointed at defendant and
replied "that's enough, outside." He then proceeded downstairs toward the exit, not knowing whether defendant
was behind him. As Rice reached the area of the front door, he pushed it open and felt something hit him across the
left side of his face. He looked down and realized that he had been hit by a bottle and that his hands and shirt were
covered with blood. He was treated at the hospital for two cuts to his left cheek, which required eight stitches. He
also had follow-up treatment at a plastic surgery center.
Patrolman David Hicks of the Red Bank Police Department responded to the scene along with Patrolman
Patrick Kennedy where they were advised by two employees of Red's who witnessed defendant "smash a glass
bottle in the face of a patron[] inside the bar." Both employees, as well as a friend of Rice's, pursued defendant on
foot, meeting up with him at an intersection. At the scene, defendant told Hicks that "he was in fear of two subjects
that approached him inside the bar[] and felt they were going to 'jump him.'"
A private detective interviewed three friends and fellow employees of defendant who went to Red's with
defendant the night of the incident. Although they did not witness the incident, they explained that they were told
by a bouncer at Red's that the fight occurred outside the tavern. Defendant's friends saw broken glass on the
sidewalk outside the bar.
In defendant's brief submitted to the Law Division, the following version of the incident was attributed to
defendant:
[Defendant] has maintained that once they were outside of the bar, Mr. Rice swung at
him first. [Defendant] is right handed, and defended himself against Mr. Rice's attack by
swinging his right hand. [Defendant] was unaware that he still had the glass in his right
hand, and consequently struck Mr. Rice with the glass. [Defendant] did not intend to hit
Mr. Rice in the face with the glass, but intended only to ward off Mr. Rice's blow which
was directed at him.
The PTI Supervisor reiterated the facts revealed by Rice and investigating Patrolman Hicks. He also
interviewed defendant who provided the following relevant version:
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[Defendant] said that the victim started talking to him and his friends. He stated that he
asked the victim jokingly, "are you buying the next drink." The defendant stated that
victim called him "gay" and a "faggot" and that he (defendant) disgusts him. The
defendant stated that he tried to tell the victim that he was joking. He said that the
victim told girls at the bar that he (defendant) is gay. He stated that the victim told him
that he was going to kick his ass outside. The defendant said that he went outside and
the victim was outside with a friend. The defendant stated that he had a glass in his
hand. He stated that the victim went toward him with closed fists, so he swung at the
victim and hit the [victim] in the face with the glass. The defendant stated that he
walked away and the victim's friend followed him. He said that the police came and he
was arrested.
Recommending defendant's acceptance into the PTI program, the supervisor noted:
The defendant is a 37 year old male, father of two children . . . has been gainfully
employed as a manager for Meridian Healthcare Systems for fifteen years . . . reported
having mental issues which he has been addressing for the past ten years . . . lacks a
prior record and has been a law abiding citizen until the present incident occurred . . .
[and] appeared motivated to comply with the conditions of PTI . . . appeared remorseful
. . . and . . . eager to put this incident behind him. . .                                                                  . Should the defendant be afforded
PTI, it is likely that his behavior will be conducive to change.
Based on the above reasons, the PTI Supervisor concluded that "defendant should be given a chance to prove
himself through the PTI Program."
Denying the Supervisor's recommendation, the State acknowledged defendant's favorable personal, work, and
medical background. The State noted the facts provided in the police report, including the victim's statement and
opposition to defendant's enrollment, and reasoned that (1) the facts "show that the victim was . . . minding his own
business . . . defendant came up and began to taunt him . . . would not leave the victim alone [and] . . . attacked the
victim with a glass causing the victim to suffer injury;" (2) the victim was "adamantly opposed" to defendant's
acceptance into PTI, 158 N.J. 28, 35 (1999) (citing 73 N.J. 360, 382 (1977)). This appropriate circumstance limitation is
addressed by Guideline 3(i), which provides that applications "should generally be rejected" when the crime is:
(1) part of organized criminal activity; or (2) part of a continuing criminal business or
enterprise; or (3) deliberately committed with violence or threat of violence against
another person; or (4) a breach of the public trust where admission to a PTI program
would deprecate the seriousness of defendant's crime . . . [or] a first or second degree
offense or sale or dispensing of Schedule I or II narcotic drugs . . .
[Pressler, supra, Guidelines 3(i).]
It is, therefore, appropriate to reject PTI based solely upon the nature of the offense where the Guidelines express a
presumption against PTI. State v. Baynes, 148 N.J. 434, 445-47 (1997). A crime implicates Guideline 3(i) if it embraces
"the public's concern regarding the threat of personal safety." Id. at 446. Judicial review and intervention is
permitted because the decision to divert "is analogous to the prosecutor's charging function," thus involving "the
implicit exercise of judicial power." Caliguiri, supra, 158 N.J. at 37 (citing State v. Nwobu, 139 N.J. 236, 245 (1995)).
However, the power to judicially review a prosecutor's decision respecting diversion is tightly circumscribed. Ibid.
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(citing State v. DeMarco, 107 N.J. 562, 566 (1987)). In order to overturn a prosecutor's decision, there must be a
judicial finding that "the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor,
or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of
discretion.'" Ibid. (quoting State v. Wallace, 146 N.J. 576, 584 (1996)).
In determining the appropriate factors, "the PTI process is not designed to assess the weight of the State's case.
'[T]he appropriate administration of the program militates against basing enrollment upon the weight of the
evidence of guilt.'" Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J. 143, 147 (1983)) (alteration in
original). In our view, the judge mistakenly assessed the weight of the State's case by considering defendant's and
his fellow employees' controverted version that the incident occurred outside the tavern, rather than the relevant
and appropriate reasons urged by the State for denying PTI. Similarly, the judge inappropriately rejected the State's
reliance on Guideline 3(i) by essentially accepting defendant's disputed claim that he acted in self-defense. See
DeMarco, supra, 107 N.J. at 568 (recognizing that a court need not decide the controverted factual issue between
the victim's account supporting the offense charged and the defendant police officer's contention that his use of his
night stick on the victim was justified, noting the victim's version on which the charge was based, "if proven, is
violent," qualifying under Guideline 3(i)).
Contrary to defendant's contention, the State considered all the relevant factors in rejecting defendant's PTI
application. The prosecutor reviewed the positive factors relating to defendant's lack of a criminal record, his
favorable personal and work history, and medical problems, but concluded that they were outweighed by the
negative factors, i.e., the violent nature of the offense, its injurious consequences, and the victim's objection to
foregoing prosecution. We are satisfied, under the circumstances, that the State's decision to reject defendant's PTI
application did not represent a clear error in judgment. Accordingly, the Order of June 15, 2007, admitting
defendant into PTI is vacated.
Reversed.
Rice's version is based on a statement given to Sergeant Michael Clay of the Red Bank Detective Division.
Defendant has been receiving psychiatric treatment for depression since 1996.
(continued)
(continued)
12
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