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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5524-07T45524-07T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SOLOMON N. PETERS,
Defendant-Respondent.
Submitted March 4, 2009 - Decided
Before Judges Fisher and King.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County,
Indictment No. 08-01-00038-I.
Wayne J. Forrest, Somerset County Pros-ecutor, attorney for appellant (Anthony J.
Parenti, Jr., Assistant Prosecutor, of counsel and on the brief).
Robert J. Baron, attorney for respondent.
PER CURIAM
In this appeal, we reverse the trial judge's order that set aside the prosecutor's rejection of defendant for enrollment
in the pretrial intervention program (PTI).
The record reveals that Officer Thomas Valente of the Bedminster Police Department responded to a call for
assistance at Rattlesnake Bridge Road near Interstate 78. Upon his arrival, Officer Valente observed a 1995 BMW with
New York plates stuck in mud and snow. Defendant was standing next to the vehicle while his female passenger,
Jazmyn Yearwood, remained in the front passenger seat.
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After calling for a tow truck, Officer Valente asked for driving credentials. Defendant stated that Yearwood, who only
had a learner's permit, was driving; he also advised the officer that his license was suspended. Yearwood told the
officer she had no driving credentials. Upon further investigation, Officer Valente confirmed that defendant's New
York license was suspended and, also, learned that defendant was wanted as a fugitive from Maryland.
Defendant and Yearwood were taken to police headquarters, as was defendant's vehicle, which had to be towed.
Yearwood consented to a search of the vehicle; inside the trunk was a shopping bag and inside the shopping bag
was a sealed plastic bag, which contained five and three-quarter ounces of marijuana. Yearwood was placed under
arrest.
After being advised of his Miranda rights, defendant gave a statement in which he admitted he was driving the
vehicle and that the marijuana belonged to him. Defendant was later indicted and charged with third-degree
possession of over one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:43-12e demonstrates that
defendant is not an appropriate candidate for [PTI].
To allow defendant into [PTI] would circumvent Guideline 1 to R. 3:28. Guidelines 1(a),
(b) and (e) all speak to deterring future criminal behavior. As the PTI rejection indicates,
defendant has a pending assault and reckless endangerment case from the State of
Maryland. Defendant was wanted as a fugitive on that case. He was driving the car
while his license was suspended. Thus, his prior arrest has not deterred him from
engaging in crime. The fact that his license has been suspended has not deterred him
from not only driving, but also transporting narcotics.
The considerations in N.J.S.A. 2C:43-12e and Guideline 3 also demonstrate that this
defendant is not an appropriate candidate for PTI.
Among [] those considerations are N.J.S.A. 2C:43-12e. In reviewing the prosecutor's
amplified decision to reject defendant's PTI application, the trial judge concluded that
"it's a patent and gross abuse of discretion to rely solely on a charge of which he has not
been convicted to exclude him from PTI."
The State appeals from the July 10, 2008 order that overruled the prosecutor's decision to reject defendant from
PTI.
A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors
raises a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). As a result, we review de novo such a decision.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (holding that "[a] trial court's
interpretation of the law and the legal consequences that flow from established facts are not entitled to any special
deference").
In reviewing the trial court's decision, we are mindful that the initial decision to accept or reject a defendant's PTI
application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor
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refuses to consent to the diversion of a particular defendant that decision is to be afforded considerable deference.
State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has
been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div.
1993) (quoting DeMarco, supra, 107 N.J. at 566). Accordingly, the scope of a court's review of a prosecutor's
decision to reject a defendant's application is severely limited, State v. Bender, 80 N.J. 84, 89 (1979), and "[j]udicial
review is 'available to check only the most egregious examples of injustice and unfairness,'" DeMarco, supra, 107
N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). In light of this standard, a defendant attempting to overcome
a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into
[PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court
elaborated on the patent and gross abuse of discretion standard:
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.
[Bender, supra, 80 N.J. at 93 (citation omitted).]
With these principles in mind, we conclude that the judge impermissibly substituted her opinion of defendant's
suitability for PTI for that of the prosecutor, who by statute and court rule is entrusted with the responsibility of
deciding whom to prosecute and whom to divert. Where, as here, the prosecutor's decision is "based on
appropriate factors and rationally explained," this court "does not have the authority . . . to substitute [its own]
discretion for that of the Prosecutor." Nwobu, supra, 139 N.J. at 253 (citation omitted).
In her oral decision, the judge referred to the unadjudicated Maryland charge as the sole basis for the prosecutor's
decision and as a factor that should have been given no weight. The judge's view of that charge and its significance
was mistaken for two chief reasons.
First, our review of the prosecutor's determination reveals that this was not the sole basis for denying the
application. The prosecutor not only incorporated the nature of the Maryland charge in his decision, but also
referred, among other things, to: the nature of the crime charged here; the fact that defendant was a fugitive from
Maryland; that, when confronted by Officer Valente, defendant lied and attempted to inculpate Yearwood; and the
fact that defendant was driving with a suspended license. We also observe that the judge mistakenly viewed the
offenses charged here as "victimless" crimes. This overlooks the fact that defendant was charged with possession of
marijuana with the intent to distribute. The prosecutor was correct to view this charge as more than a victimless
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crime.
Second, the trial judge was mistaken in concluding that the prosecutor was not entitled to consider the nature of
the charges pending in Maryland because defendant had not yet been tried on those charges. In State v. Brooks,
175 N.J. 215, 228 (2002), the Court explained that the prosecutor is entitled to take into account a defendant's arrest
record and "adult histories that contain dismissed offenses." In quoting from State v. Pickett, 186 N.J. Super. 599,
608 (Law Div. 1982) (Long, J.), the Court explained that "'the difficult judgmental function which is required of the
director in attempting to assess human nature in order to evaluate the potential for rehabilitation can only be aided
by the free flow of information.'" Brooks, supra, 175 N.J. at 229. In short, the prosecutor is "not required to wear
blinders" in assessing the matter, State v. Marzolf, 79 N.J. 167, 185 (1979), and may consider "'many factors,
including an arrest record," because that information "contribute[s] toward the composite picture of the 'whole
man,'" which lies at the heart of the prosecutor's determination, Brooks, supra, 175 N.J. at 228 (quoting State v.
Green, 62 N.J. 547, 566 (1973)).
For these reasons, we conclude that the trial judge mistakenly viewed far too narrowly the factors the prosecutor
was entitled to consider. Moreover, the judge's conclusion that defendant was entitled to admission into PTI was
not hers to make. DeMarco, supra, 107 N.J. at 566. Once the prosecutor has made that decision, judicial review, as
we have observed, is "available to check only the most egregious examples of injustice and unfairness." Ibid.
(citation omitted). Here, the judge acknowledged the deferential standard that applies to judicial review of a
prosecutor's rejection of a PTI application. It is readily apparent, however, that the judge did not afford the
prosecutor that deference. The judge mistakenly eliminated some of the factors the prosecutor was entitled to
consider, reweighed the proofs and reanalyzed the statutory factors as if she, rather than the prosecutor, was the
person entrusted with this sensitive decision.
"Striking the proper balance between the retributive and rehabilitative functions of criminal law is very difficult."
Nwobu, supra, 139 N.J. at 260. That decision "lies, in the first instance, with the prosecutor." Ibid. Because the trial
judge engaged in her own interpretation of the circumstances and did not examine the prosecutor's determination
through application of the highly deferential standard required, we are compelled to reverse.
Reversed.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
Defendant's driving record reveals that he has been cited for failing to pay court ordered fines ten times, has had
numerous moving violations, has had his license suspended three times, and has failed to answer a summons
fourteen times. That defendant was driving on the date in question while his license was suspended, and while he
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was a fugitive from Maryland, demonstrates that the prosecutor had sufficient evidence upon which to conclude
that defendant has a propensity for disregarding his legal obligations. Our Supreme Court has held that this is a
proper manner in which to consider a defendant's driving record. See State v. Negran, 178 N.J. 73, 84-85 (2003).
Similarly, in rejecting a defendant's application for PTI, the prosecutor may consider evidence that was seized in
violation of the Fourth Amendment. Brooks, supra, 175 N.J. at 229 (holding that the policy considerations that
warrant exclusion of illegally seized evidence at trial do not extend to the evaluation of the defendant for PTI
application).
(continued)
(continued)
11
A-5524-07T4
March 20, 2009
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