(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 12, 1994 -- Decided February 8, 1995
O'HERN, J., writing for a unanimous Court.
The central issue in these two appeals is whether prosecutors arbitrarily rejected Daniel Nwobu, James
Callender, Bryan Harris, and James Overby for admission into Pretrial Intervention programs (PTI).
In 1991, a Bergen County grand jury charged Nwobu with second-degree theft by deception. The
indictment alleged that Nwobu stole and forged checks totalling more than $75,000 from his employer, Simon
& Schuster, over a six-week period. After arraignment, Nwobu made application to be admitted to PTI. The
PTI director denied the application.
Nwobu appealed his rejection to the Law Division of Superior Court. Although the Prosecutor opposed
the application, the trial judge ordered that Nwobu be admitted into PTI. The Prosecutor sought leave to appeal
from the Appellate Division but did not seek to stay Nwobu's participation in the PTI program. Leave to appeal
was granted on 9/22/93. Nwobu successfully completed his six-month PTI term and moved to dismiss the appeal
on double-jeopardy grounds. The Appellate Division denied the motion and subsequently reversed the judgment
of the trial court, remanding the case back for further criminal proceedings. The Supreme Court granted
Nwobu's motion for leave to appeal.
On 6/26/90, James Callender, Bryan Harris, and James Overby were at a park in East Orange, drinking
beer and waiting to play basketball. While waiting, one of them threw a "blockbuster," a firecracker with the
power of a one-quarter stick of dynamite. The firecracker was aimed at the basketball court but hit a tree
branch and landed within ten feet of a three-year-old. Although the boy was not physically harmed when the
firecracker went off, he was frightened and cried hysterically.
Following the explosion, Callender, Harris, and Overby were attacked by a crowd of bystanders. Overby
was the only person seriously injured in the brawl. He lost his right eye.
An Essex County grand jury charged Callender, Harris, and Overby with second-degree possession of
a "destructive device" for an unlawful purpose, along with related offenses. Due to the explosive strength of the
"blockbuster," the offense met the definition for a second-degree crime.
The trial court asked the Prosecutor to make an initial determination on PTI as an option for the three
men. The Prosecutor rejected all three. Callender, Harris, and Overby appealed the rejection to the trial court,
which asked the Prosecutor to reconsider his determination and to evaluate the men's respective backgrounds
(none, for example, had any prior criminal history). The Prosecutor did so, but rejected all of them again.
On 11/30/92, the trial court ordered all three men admitted to PTI, concluding that the Prosecutor had
abused his discretion. The Appellate Division affirmed the Law Division, and the Supreme Court granted the
State's motion for leave to appeal.
HELD: If a prosecutor's decision to reject a defendant for PTI considers relevant factors, is not based on
inappropriate factors, and is not a clear error in judgment, the decision will not be overturned as an abuse of
discretion. In rejecting an applicant for admission to PTI, a prosecutor may rely on an appropriately-drafted
statement of reasons from the program director (now the criminal division manager). In addition, prosecution
of a defendant after entry into PTI does not violate double jeopardy.
1. Pretrial Intervention programs (PTI) are governed by statute, Court Rules, and Guidelines. The standards
for review of PTI decisions are firmly established by prior Court decisions. Statements of reasons for PTI
decisions are required of judges, prosecutors, and program administrators. A reviewing court must assume,
absent evidence to the contrary, that the prosecutor's office has considered all relevant factors in reaching the
PTI decision. This presumption makes it very hard to reverse a prosecutor's decision on that basis. (pp. 9-16)
2. Much of the difficulty in the Nwobu case may arise from its complexity. Nwobu has been charged with
participating in a sophisticated form of commercial fraud. The prosecutor relied on the program director's
statement of reasons in rejecting Nwobu for PTI. In the absence of a refinement of the Court's rules governing
a prosecutor's statement, his reliance on the program director did not amount a "patent and gross abuse of
discretion." (pp. 16-18)
3. Nwobu's primary argument against the prosecutor's decision -- that he was guilty of no more than a third-degree offense -- goes to the weight of the evidence of guilt, not necessarily to eligibility for PTI. The question
is not whether the Court agrees or disagrees with the prosecutor's decision, but whether the prosecutor's decision
could not reasonably have been made on a weighing of the relevant factors. In Nwobu's case, the Court will not
disturb the prosecutor's decision. (pp. 18-23)
4. In respect of Callender, Harris, and Overby, the record establishes that the prosecutor considered each man's
individual characteristics. Given the conflicting evidence and the pitfalls of offering a plea or diversion to one
of three actors, the rationale of the prosecutor's decision, though the same in each case, was not arbitrary. In
addition, claims that tossing the firecracker was a simple prank go to the weight of the evidence, which standing
alone is not dispositive of a court's PTI review. (pp. 23-26)
5. Because Nwobu lacked a reasonable expectation of finality in respect of his status when the trial court
ordered him into PTI, double jeopardy provisions do not preclude the State's prosecution of him. (pp. 26-29)
The judgment of the Appellate Division in State v. Nwobu is AFFIRMED. The judgment of the
Appellate Division in State v. Callender, et al. is REVERSED. Both matters are REMANDED to the Law
Division for further criminal proceedings.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, GARIBALDI, and STEIN join
in JUSTICE O'HERN's opinion. JUSTICE COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-40/
41 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. (A-40)
DANIEL NWOBU,
Defendant-Appellant.
---------------------------------
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. (A-41)
JAMES CALLENDER, BRYAN HARRIS,
and JAMES OVERBY,
Defendants-Respondents.
Argued October 12, 1994 -- Decided February 8, 1995
On appeal from the Superior Court, Appellate
Division.
Daniel V. Gautieri, Assistant Deputy Public
Defender, argued the cause for appellant
Daniel Nwobu (Susan L. Reisner, Public
Defender, attorney).
Gary A. Thomas, Assistant Prosecutor, argued
the cause for appellant State of New Jersey
(Clifford J. Minor, Essex County Prosecutor,
attorney).
Stuart A. Minkowitz, Assistant Prosecutor,
argued the cause for respondent State of New
Jersey (John J. Fahy, Bergen County
Prosecutor, attorney; Mr. Minkowitz and John
J. Scaliti, Assistant Prosecutor, on the
briefs).
Stephen A. Caruso, Assistant Deputy Public
Defender, argued the cause for respondent
James Callender (Susan L. Reisner, Public
Defender, attorney).
Barbara A. Hedeen, Assistant Deputy Public
Defender, argued the cause for respondent
Bryan Harris (Susan L. Reisner, Public
Defender, attorney; Diane Toscano, Assistant
Deputy Public Defender, on the letter brief).
Donald T. Thelander, Assistant Deputy Public
Defender, argued the cause for respondent
James Overby (Susan L. Reisner, Public
Defender, attorney).
Richard W. Berg, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
The central issue in these two appeals is whether the
prosecutors arbitrarily rejected defendants' admission into
Pretrial Intervention programs (PTI). PTI is an alternative
procedure to the traditional process of prosecuting criminal
defendants. It 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. PTI is intended to augment the criminal justice system
when prosecution would be ineffective, counterproductive, or
unnecessary. A second issue, in one of the cases, is whether the
prosecution of the defendant after completion of PTI would
violate his double-jeopardy rights.
Daniel Nwobu is in his early thirties. In 1991 a Bergen County Grand Jury charged him with second-degree theft by deception. The indictment alleged that over approximately a six-week period, he stole and forged checks totalling more than $75,000 from his employer, Simon & Schuster, a major publishing company. After arraignment, he applied for entry into the Bergen County PTI.
The PTI director denied the application. He set forth the following reasons for that denial: (1) Defendant failed to offer any compelling reasons to overcome the statutory presumption against pre-trial intervention for second-degree offenders;
(2) the prosecutor did not support defendant's PTI application; (3) defendant's conduct was part of a continuing pattern of anti-social behavior; and (4) admission into PTI would fail to serve as a sufficient sanction or deterrent.
Defendant appealed to the Law Division, pursuant to PTI Guideline 8 of Rule 3:28, for an order requiring reconsideration of the application or mandating defendant's admission into PTI. The Bergen County Prosecutor wrote a brief letter to defendant's attorney informing him that he opposed defendant's entry into PTI. The letter stated:
The Bergen County Prosecutor's Office
has carefully considered the [PTI]
application of [Nwobu]. We regret to inform
you that this office opposes your client's
entry into the program for the same reasons
as previously stated by the [PTI] Director,
Howard Williams.
Pending further information, the trial court ordered the
prosecutor's office to "reevaluate and reconsider" defendant's
PTI application and submit a written report to the court. The
Prosecutor's office simply replied that the State's position
remained unchanged. On April 30, 1993, the trial court ordered
that defendant be admitted into PTI. However, because the court
knew that the State would appeal, it stayed its ruling pending
completion of a written opinion. In its written decision on
August 5, 1993, the court found that the prosecutor's denial of
defendant's application for PTI was a patent and gross abuse of
discretion because the prosecutor failed to provide a
particularized statement of reasons regarding the rejection of
defendant from PTI. The trial court held that it was
inappropriate for the Prosecutor's office to justify its decision
by simply referring to the reasons offered by the PTI director.
It stayed further prosecution.
On August 18, 1993, the State moved for leave to appeal from
the trial court's order. However, at that time, the State did
not seek a stay of defendant's participation in PTI. The
Appellate Division granted the State's motion on September 22,
1993. Not until December 20, 1993, did the State request that
the trial court stay defendant's participation in PTI pending the
appeal. The trial court denied that request. After he
successfully completed his six-month PTI term, defendant sought
to dismiss the State's appeal as moot, fundamentally unfair, and
in violation of his double-jeopardy rights.
The Appellate Division refused to dismiss the appeal. On
the merits of the appeal, it held that the prosecutor's reliance
on the PTI director's reasons to deny defendant's admittance into
PTI was proper as long as the reasons given by the PTI director
were valid. Finding the prosecutor's reasons valid, it reversed
the trial court's judgment and remanded the case for further
criminal proceedings. We granted defendant's motion for leave to
appeal the Appellate Division's decision.
On June 26, 1990, defendants, James Callender, Bryan Harris, and James Overby, young men in their twenties with no prior criminal histories, were at a park in East Orange drinking beer and waiting to play basketball. Also at the park were Brooklyn Smith, Jr., an off-duty New Jersey State Trooper, and his three-year-old son, Brooklyn Smith, III. While defendants were waiting for a game, one of them threw a "blockbuster," a firecracker with the power of one-quarter stick of dynamite. The firecracker was aimed at the basketball court but struck a tree limb that altered its course, causing it to explode within ten feet of Brooklyn,
III. The boy was not physically harmed, but he was frightened
and cried hysterically after the blockbuster detonated. There is
conflicting evidence about which of the three men threw the
explosive.
Following the explosion a crowd of bystanders attacked the
defendants. Defendant Overby suffered a severe eye injury in the
brawl. Eventually his right eye had to be removed. Police
arrived at the scene and apprehended the defendants. The police
discovered fireworks in the car that Overby occupied when
apprehended.
An Essex County Grand Jury has charged defendants with
second-degree possession of a destructive device for an unlawful
purpose, contrary to N.J.S.A. 2C:39-4c; third-degree arson,
contrary to N.J.S.A. 2C:17-1; and third-degree possession of a
prohibited destructive device, contrary to N.J.S.A. 2C:39-3a.
Because of its explosive power the blockbuster meets the
statutory definition of a "destructive device," that is, "any
device, instrument or object designed to explode or produce
uncontrolled combustion, including * * * any explosive * * *."
N.J.S.A. 2C:39-1c(1). The State did not charge illegal
possession of fireworks, a disorderly persons offense under
N.J.S.A. 21:3-8.
In the pretrial phase, before defendants formally applied
for PTI, the trial court requested that the Essex County
Prosecutor's Office make an initial determination regarding the
option of PTI for defendants. The prosecutor would not consent
to defendants' admission into PTI. He offered the following
reasons in a letter to the court on August 3, 1992:
(1) Pursuant to Guideline 3(i) of the Guidelines for
Operation of Pretrial Intervention in New Jersey in R. 3:28,
an application for PTI "should generally be rejected if the
offense was deliberately committed with violence or threat
of violence."
(2) Pursuant to the same guideline, "a person charged
with a first or second degree crime should ordinarily not be
considered for enrollment in PTI except on a joint
application of the defendant and the Prosecutor."
(3) "[S]ociety's interest in prosecuting the
defendants and deterring others far outweighs any interest
the defendant[s] might have in obtaining PTI."
(4) "[T]he defendants have not presented anything to
[the prosecutor] which would indicate their backgrounds or
characters are so exceptional as to warrant their entry into
PTI despite the nature and degree of the offenses charged."
(5) Pursuant to Guideline 3(j), "the impact of a
defendant's diversion on the prosecution of co-defendants
should be considered. Given the joint nature of the
defendants' participation in this case, diversion of any one
defendant would have an adverse effect on the prosecution of
the others."
Defendants appealed the prosecutor's rejection of their
admission into PTI and supplied further information about their
backgrounds to the prosecutor. At that time, defendant Callender
was twenty-seven years old, had graduated from prep school, and
had attended college for a short period of time. He had been
consistently employed since leaving college and also volunteered
his time for community activities. Callender has no criminal
history. Harris was twenty-four years old, married, and
honorably discharged after serving in the Persian Gulf War. He
plans to attend college. Overby was in his late twenties,
unmarried, and unemployed. He has two children that he is
obligated to support financially. Like Callender, neither Harris
nor Overby has a criminal history.
The trial court requested that the prosecutor reconsider his
disposition and evaluate defendants' respective backgrounds. The
prosecutor responded to that request with separate letters,
applicable to each defendant. The prosecutor again objected to
defendants' admission into PTI. Each letter contained a one- to
three-paragraph review of the background information provided by
defendants. The prosecutor's reasons for opposing each
defendant's entry into PTI were set forth in an identical, final
paragraph in each response. That paragraph stated:
This information regarding the
defendant's background was not provided to me
when I originally considered his request for
entry into P.T.I. in early August. I have
reconsidered the defendant's request in light
of this information and the considerations
set forth in my letter of August 3, 1992.
* * * While there are certainly positive
aspects to the defendant's background, they
do not, in my view, outweigh the need for
prosecution.
On November 30, 1992, the trial court ordered that
defendants be admitted into PTI, but stayed the order until
December 15, 1992, to allow the State time to appeal. The court
reasoned that the prosecutor abused his discretion by rejecting
defendants' admission into PTI because he did not consider all
the relevant factors and did not evaluate separately each
defendant's amenability to the rehabilitative process. The
Appellate Division affirmed the Law Division decision. It agreed
with the trial court that an abuse of prosecutorial discretion
had occurred.
The State immediately applied for a stay of the Appellate
Division's decision pending leave to appeal to this Court. The
Appellate Division granted the motion for a stay, and we granted
the State's motion for leave to appeal.
PTI was first established, with no enabling legislation, by Rule 3:28 in 1970, as authority for the vocational-service pretrial intervention program operated by the Newark Defendants Employment Project. By 1976 the Court had approved programs for twelve counties. Pressler, Current N.J. Court Rules, comment 1 on R. 3:28 (1995). Subsequently the Legislature enacted a
statewide program of pretrial intervention as part of the 1979
Code of Criminal Justice. N.J.S.A. 2C:43-12 to -22. The Code
provisions generally mirrored the procedures and guidelines
previously established under Rule 3:28. Although pretrial
diversion is by its nature part of the prosecutor's charging
function, the statutes, procedures, and guidelines involve the
judiciary in the administration of PTI. As a practical matter,
criminal case management today is a three-part effort involving
prosecutors, courts, and defenders. Our judicial powers
obviously "include the power to review the operation of court
initiated procedures and to review the legal determinations made
pursuant to these procedures." State v. Leonardis,
71 N.J. 85,
109 (1976).
Under current practice, admission into PTI is based on a
recommendation by the criminal division manager, with the consent
of the prosecutor. R. 3:28(b). Criminal division managers are
judicial appointees selected by the assignment judge. When this
case arose, the local PTI directors (predecessors to criminal
division managers) made the initial determination regarding an
individual's potential for admission into PTI. Typically such
recommendations are forwarded to the prosecutor's office before
submission to the court. The standards for review of PTI
decisions are "firmly established" by our prior decisions. State
v. Dalglish,
86 N.J. 503, 512 (1981). See also State v. Sutton,
80 N.J. 110 (1979); State v. Maddocks,
80 N.J. 98 (1979); State
v. Bender,
80 N.J. 84 (1979); State v. Smith,
92 N.J. 143 (1983).
Those standards are generally couched in terms of the
prosecutor's function, although the PTI director has a parallel
involvement in the process. For example, the PTI director
receives confidential information in processing the applications.
A recent Appellate Division opinion has well summarized the
principles:
[The PTI] decision lies, in the first
instance, with the prosecutor, and once he
has determined that he will not consent to
the diversion of a particular defendant, his
decision is to be afforded great deference.
In fact, the level of deference which is
required is so high that it has been
categorized as "enhanced deference" or "extra
deference." Beyond this, it has been
expressly noted that the scope of any review
in this area is to be "severely limited."
* * * Thus, judicial review, in actuality,
exists "to check only the most egregious
examples of injustice and unfairness."
The reason for this elevated standard of
review stems from "[t]he need to preserve
prosecutorial discretion in deciding whether
to divert a particular defendant from the
ordinary criminal process. . . ."
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.
The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI. Specifically, "a defendant 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 R. 3:28 without
prosecutorial consent."
[State v. Kraft,
265 N.J. Super. 106,
111-12 (1993) (citations omitted).]
We defined the "patent and gross abuse of discretion"
standard in State v. Bender, supra, 80 N.J. at 93. To meet that
standard a party must show that the prosecutor's decision failed
to consider all relevant factors, was based on irrelevant or
inappropriate factors, or constituted a "clear error in
judgment." Ibid. Additionally, an abuse of discretion is
"patent and gross" if it is shown "that the prosecutorial error
complained of will clearly subvert the goals underlying Pretrial
Intervention." Ibid. If a prosecutor fails to consider all
relevant factors or considers irrelevant factors, a court may
remand the matter for further consideration. State v. DeMarco,
107 N.J. 562, 567 (1987). If a prosecutor commits a clear error
of judgment, a court may order that a defendant be enrolled in
PTI. Ibid. "Whether the prosecutor has based his or her
decision on an appropriate factor, however, is akin to a question
of law, a matter on which an appellate court may supplant the
prosecutor's decision." Ibid. (citing State v. Maddocks, supra,
80 N.J. at 104-05).
We promulgated Guidelines for Operation of Pretrial
Intervention in New Jersey to provide courts and prosecutors with
criteria for making PTI decisions. R. 3:28. Guidelines 1, 2, 3,
and 8 are relevant to the instant cases.
Guideline 1 identifies five purposes of PTI. Those are:
(1) to enable defendants to avoid ordinary prosecution by
receiving early rehabilitative services expected to deter future
criminal behavior; (2) to provide defendants who might be harmed
by the imposition of criminal sanctions with an alternative to
prosecution expected to deter criminal conduct; (3) to avoid
burdensome prosecutions for "victimless" offenses; (4) to relieve
overburdened criminal calendars so that resources can be expected
on more serious criminal matters; and (5) to deter future
criminal behavior of PTI participants.
Guideline 2 provides that "[a]ny defendant accused of crime
shall be eligible for admission into a PTI program." That
guideline also provides that a defendant should have an
opportunity to supplement the PTI application with a presentation
of "any facts or materials demonstrating the defendant's
amenability to the rehabilitative process, showing compelling
reasons justifying the defendant's admission, and establishing
that a decision against enrollment would be arbitrary and
unreasonable."
Guideline 3 lists a number of factors to be considered when
assessing a PTI application. Pursuant to Guideline 3(i), the
nature of the offense must be considered and a PTI application
"should generally be rejected" if the defendant's crime was:
"(1) part of organized criminal activity; or (2) part of a
continuing criminal business or enterprise;See footnote 1 or (3) deliberately
committed with violence or threat of violence against another
person; or (4) a breach of the public trust * * * ."
Guideline 3 also provides that persons charged with first
or second-degree crimes "should ordinarily not be considered for
enrollment in a PTI program except on joint application by the
defendant and the prosecutor."
Guideline 3(j) provides that any impact on the prosecution
of co-defendants caused by a defendant's diversion into PTI
should be considered.
Finally, Guideline 8 establishes a number of procedural
requirements. First, judges, prosecutors, and program directors
(now, criminal division managers) must set forth, in writing,
their reasons for any decision granting or denying a PTI
application. Guideline 8 also entitles a defendant to challenge
at a hearing the decision of the prosecutor or criminal division
manager. If the reviewing court reverses the denial of the
defendant's application, the State may seek leave to appeal to
the Appellate Division. If the trial court affirms a denial of
PTI, the defendant must wait until a judgment of conviction has
been entered before appealing to the Appellate Division.
We have emphasized the importance of a statement of reasons
accompanying any PTI decision by a judge, prosecutor, or program
administrator. See State v. Leonardis, supra, 71 N.J. at 114-15;
State v. Sutton, supra, 80 N.J. at 116-17; State v. Bender,
supra, 80 N.J. at 94. Such a statement serves four purposes:
(1) It facilitates effective judicial review; (2) it assists in
evaluating the success of the PTI program; (3) it affords the
defendant the opportunity to prepare a response; and (4) it
dispels suspicions of arbitrariness. State v. Leonardis, supra,
71 N.J. at 114-15.
The statement of reasons may not simply "parrot" the
language of relevant statutes, rules, and guidelines. State v.
Sutton, supra, 80 N.J. at 117. At a minimum, the prosecutor
"should note the factors present in defendant's background or the
offense purportedly committed which led [the prosecutor] to
conclude that admission should be denied." Ibid. Additionally,
the 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."
State v. Maddocks, supra, 80 N.J. at 109.
A reviewing court must assume, absent evidence to the
contrary, that the prosecutor's office has considered all
relevant factors in reaching the PTI decision. State v.
Dalglish, supra, 86 N.J. at 509; State v. Bender, supra, 80 N.J.
at 94. This presumption makes it very difficult to reverse a
prosecutor's decision on that basis.
Applying those principles to Nwobu's case, we must acknowledge at the outset that it was not a textbook example of how to handle a PTI application. Much of the difficulty may arise from the complexity of this particular case. We are not certain that the trial court had the benefit of all the materials that we have received. This case involves a rather sophisticated form of commercial fraud. As we understand the scheme, Nwobu or his confederates set up dummy bank accounts using, for example, the name Simon Printing & Publishing Company to deposit the stolen checks. Using the alias, John Holmes, Nwobu made such illicit bank transactions. Various banks were involved. Surveillance cameras and bank tellers allegedly identified Nwobu as the one involved in the bank transactions. The trial court was fully prepared to conduct the PTI hearing but the assistant prosecutor assigned to the hearing had no familiarity with these facts, even though an assessment of the "facts of the case" is required by N.J.S.A. 2C:43-12e(2). Another prosecutor from the fraud section could not furnish many more specifics. Still, we do not believe that the prosecutor could not adopt the PTI director's reasoning as his own.
None of the four purposes of the statement of reasons
enumerated above is sacrificed when a prosecutor relies on a
director's statement of reasons. First, a defendant is not
inhibited from ascertaining the State's reasons for its decision.
He or she may evaluate the program director's statement of
reasons and respond accordingly. Second, a court can effectively
review the director's statement of reasons to determine whether
an abuse of discretion has occurred. Third, the success of PTI
can still be evaluated because a record of the reasons for denial
of PTI can be found in the director's statement. Fourth,
suspicions of arbitrariness are dispelled as long as the
prosecutor can enunciate principled reasons for his or her
decision to reject a PTI application even if those reasons are
the same as the program director's. As a result, we conclude
that no patent and gross abuse of discretion by the prosecutor
occurred.
The trial court was understandably troubled by the
circularity of the reasoning: The PTI director rejected the
application because the prosecutor would not consent to it and
the prosecutor rejected the application because the PTI director
had rejected it. No one (or so it appeared to the court) had
taken the time to assess the defendant's claims of a very limited
involvement in the scheme. Defendant insists that "the
Prosecutor and Director have failed to scrutinize or understand
what the investigatory material show[s] with respect to Daniel
Nwobu." But the claims reflecting the weight of the evidence,
standing alone, are not dispositive in the PTI process. State v.
Smith, supra, 92 N.J. at 147.
In the speedy-trial context, the Appellate Division has
acknowledged that the two actors in the PTI process (the
prosecutor and the program director) need not be equally involved
in each PTI application. State v. Rosario,
237 N.J. Super. 63,
66-68 (1989), certif. denied,
122 N.J. 139 (1990).
Additionally, because a second-degree offender's admission
into PTI requires the approval of both the program director and
the prosecutor, interplay between those two individuals is not
surprising or inappropriate. Absent refinement of our rules to
require completely distinct reasoning, the prosecutor's reliance
on the program director's statement of reasons is proper. The
statement of reasons must then be evaluated for its adequacy.
The PTI director's statement of reasons appears to be adequate. Although the statement does not discuss the defendant's background, it refers to two factors regarding the alleged offense: that it was a second-degree offense and was a part of "a continuing pattern of anti-social behavior." That finding of "a continuing pattern of anti-social behavior" (the factor drawn from N.J.S.A. 2C:43-12e(8)), is not critical to our assessment of the case. Ordinarily that factor or the related
factor of "a continuing criminal business or enterprise" in
Guideline 3(i) is predicated on more long-standing criminal
involvement. The PTI director also states that PTI would not
serve as a sufficient deterrent or sanction. That assertion,
however, is somewhat conclusory. In third- or fourth-degree
offenses the opinions of those in charge of the program as to the
qualitative nature of the offense may serve as guidance.
That Nwobu is charged with a second-degree crime is the
single most important factor involved. To overcome the
presumption against PTI, defendant must establish "compelling
reasons" for admission into PTI. The defendant misunderstands
the significance of this concept. The first question asked of
Nwobu's counsel at oral argument was "What are the compelling
reasons for your client's admission into PTI?" The answer was:
"He is only guilty of a third-degree crime." But 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."
State v. Smith, supra, 92 N.J. at 147.
In the related context of criminal sentencing, the
seriousness of the offense is the most important factor to be
considered. There is a presumption of incarceration for first-and second-degree offenders and that presumption may not be
overcome except in "`truly extraordinary and unanticipated
circumstances'" when the sentencing court finds that a "serious
injustice" exists. State v. Roth,
95 N.J. 334, 358 (1984)
(quoting Fair and Certain Punishment, Report of The Twentieth
Century Fund Task Force on Criminal Sentencing (1976)). Thus, in
State v. Cannon,
128 N.J. 546, 563 (1992), we reasoned that the
Intensive Supervision Program (ISP) was not available for first
and second-degree crimes. (The Legislature has since authorized
ISP for a limited class of first- and second-degree crimes.
N.J.S.A. 2C:43-11.)
It is true that one need not "be Jean Valjean," State v.
Mickens,
236 N.J. Super. 272, 279 (App. Div. 1989), to establish
compelling reasons for admission into PTI, but there must be a
showing greater than that the accused is a first-time offender
and has admitted or accepted responsibility for the crime. To
forestall imprisonment a defendant must demonstrate something
extraordinary or unusual, something "idiosyncratic," in his or
her background. State v. Jabbour,
118 N.J. 1, 7 (1990). In the
case of first- and second-degree crimes, something of this nature
must be presented to establish compelling reasons for admission
into PTI.
There is nothing extraordinary or unusual about Nwobu's
case. He seems to have led a blameless life until now. He has
unfortunately been implicated in a very serious commercial fraud.
We might prefer incorporation of more detailed information
about defendant's background into the statement of reasons. But
none of the three prongs supporting a finding of an abuse of
discretion is present. The prosecutor or director considered all
relevant factors in making the PTI decision. The trial court was
particularly troubled by the notable lack of preparation by the
prosecutor's office, leading to the conclusion that the
prosecutor had not considered all the relevant factors. Despite
arguments relating to an assistant prosecutor's lack of
preparation for oral argument, there is nothing to show that the
prosecutor's office did not know that defendant had been a law-abiding citizen or was unaware of any other aspect of his
character relevant to a PTI decision. Thus, there was no failure
to consider relevant factors. Because defendant does not claim
that the State relied on irrelevant factors, the second prong of
the test requires no further evaluation.
Defendant does claim that the prosecutor made a clear error
of judgment, thus meeting the third prong of the abuse of
discretion test. Such an error is one that is "based on
appropriate factors and rationally explained," but "is contrary
to the predominant views of others responsible for the
administration of criminal justice." State v. Dalglish, supra,
86 N.J. at 510. A reviewing court "`does not have the authority
in PTI matters to substitute [its own] discretion for that of the
prosecutor.'" State v. Kraft, supra, 265 N.J. Super. at 112
(quoting State v. Von Smith,
177 N.J. Super. 203, 208 (App. Div.
1980)).
The concept of a "clear error of judgment" is a familiar one
in the criminal practice. In other contexts we have explained
that an error in applying guidelines to the facts of the case
must be "clearly unreasonable so as to shock the judicial
conscience," State v. Roth, supra, 95 N.J. at 365, before it may
be branded a clear error of judgment. Such an error is one that
"could not have reasonably been made upon a weighing of the
relevant factors." Id. at 366. We seek to avoid the
substitution of appellate judgment for the judgment of the agency
responsible for the function involved, be it prosecutorial or
judicial. The objectives of PTI are spelled out in the Code of
Criminal Justice and the Rules of Court.
It is deviation from those objectives, in
view of the standards and criteria therein
set forth, which constitutes error. To hold
otherwise would allow for ad hoc, instinctive
decisions on appeal which could result in
merely perpetuating disparity on a different
level and which would certainly thwart the
development of defined, objective standards."
[People v. Cox,
396 N.E.2d 59, 65 (Ill. App.
Ct. 1979), rev'd,
412 N.E.2d 541 (Ill.
1980), quoted in State v. Roth, supra, 95
N.J. at 365.]
The prosecutor did not deviate from the objectives of PTI as
set forth in the program guidelines. PTI is presumptively
unavailable for second-degree offenders. Defendant's status is
not qualitatively distinguishable from any other first-time
offender who must confront that guideline. Defendant's principal
challenge to the prosecutor's judgment is that he is not a
second-degree offender but only a minor actor in a larger fraud
committed against the employer. That argument goes to the weight
of the evidence of guilt, not necessarily to eligibility for PTI.
The amount of the theft and the relative time period involved
suggest more than a momentary loss of moral resolve.
The question is not whether we agree or disagree with the
prosecutor's decision, but whether the prosecutor's decision
could not have been reasonably made upon weighing the relevant
factors. We cannot say that such a decision could not have been
reasonably made in this setting.
Applying the legal principles set forth above to defendants Callender, Harris, and Overby, we reverse the Appellate Division's decision that the prosecutor committed a patent and gross abuse of discretion in rejecting defendants' PTI applications without considering defendants' backgrounds and their individual prospects for rehabilitation.
PTI decisions are "primarily individualistic in nature" and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation. State v. Sutton, supra, 80 N.J. at 119. That the prosecutor rejected PTI for each of these defendants does not mean that he did not consider the individual features of each defendant.
The record establishes that the prosecutor considered
defendants' individual characteristics. The prosecutor wrote to
each defendant a letter that recited relevant factors regarding
his background and concluded that, despite positive aspects of
his background, the need for prosecution outweighed the benefits
of diversion. The trial court faulted the prosecutor for not
specifying the evidence that he had against the defendants
individually. It reasoned that defendants had the right to be
considered separately, "not only as to their backgrounds but as
to their involvement, and no meaningful review by the Court can
be had where that does not occur." (Emphasis added.) But the
available evidence was in conflict and the State disputed the
trial court's assessment of the evidence that was available.
(The trial court characterized Harris as a "benign intervenor,"
but witnesses at the scene identified Harris as the one who threw
the firecracker.)
Given the conflicting evidence and the pitfalls of offering
a plea or diversion to one of three actors, the rationale of the
prosecutor's decision, though the same in each case, was not
arbitrary. PTI Guideline 3(j) allows consideration of the effect
on the prosecution of co-defendants caused by another defendant's
diversion into PTI. In a multi-defendant case, a jury might
speculate about why some actors were not charged.
There is some suggestion that the involvement of a law
enforcement officer may have affected the prosecutor's decision.
The firecracker exploded near the state trooper's child and the
trooper was identified as one of the assailants of Overby,
who lost his eye. If that involvement were an influence on the
decision, we would not hesitate to correct the action. "[A]ction
upon public opinion against a particular defendant cannot be
tolerated in our criminal justice system." State v. Humphreys,
89 N.J. 4, 15 (1982). The record, however, does not establish
that the prosecutor considered such an inappropriate factor in
denying defendants' applications.
That leaves for consideration whether the prosecutor's
decision was a clear error in judgment. Throwing the equivalent
of one-quarter stick of dynamite into a crowd is not a petty
offense. Let us transpose the facts slightly and assume that a
terrorist had thrown the same device into a crowded restaurant
intending to injure civilians. There would be no doubt that PTI
would be out of the question. What clouds the PTI issues are the
claims of innocence: that defendants had no intent to harm but
were only foolish pranksters tossing firecrackers. But that goes
to the weight of the evidence, which standing alone "is not
dispositive in a court's review of the evaluation of [PTI]
candidates." State v. Smith, supra, 92 N.J. at 147. If a jury
agrees with the prosecutor, these defendants will be found to
have had an unlawful purpose, an intent to injure when they
tossed the device. N.J.S.A. 2C:39-4c. Only time will tell
whether a jury will agree with the prosecutor's assessment of the
facts.
Denying PTI to those who intentionally throw destructive
devices into a crowd reflects legitimate considerations that are
supported by the Guidelines. Given that a basis exists within
the PTI guidelines for the prosecutor's decision, it was not a
clear error of judgment. Second-degree offenders are
presumptively ineligible for PTI.
Because the prosecutor's decision did not fail to consider
relevant factors, was not based on inappropriate factors, and was
not a clear error in judgment, the prosecutor's rejection of the
defendants' PTI applications was not an abuse of discretion. We
reverse the judgment of the Appellate Division. The defendants
may be prosecuted.
The final issue to be addressed is whether prosecution of Nwobu after his entry into PTI violates double jeopardy. That clause protects defendants from successive prosecutions for the same offense and from multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed.2d 656, 664-65 (1969).
PTI closely resembles probation, which has been recognized as a criminal sanction. See State v. Watson, 183 N.J. Super. 481, 484 (App. Div. 1982) (after untimely appeal, increase in
probationary sentence that had commenced disallowed). However,
punishment in the form of probation normally follows a finding of
guilt. By its nature PTI is designed to furnish rehabilitative
services in place of the normal criminal findings of guilt. In
any event, we need not resolve whether PTI is a criminal
punishment.
We are satisfied that because Nwobu lacked a reasonable
expectation of finality in his status when the trial court
ordered him into PTI, double-jeopardy provisions do not preclude
the State's prosecution of him. In the context of governmental
appeals from the imposition of sanctions, "the touchstone of the
double jeopardy analysis lies in the expectation of finality that
a defendant vests in his [or her] sentence." State v. Sanders,
107 N.J. 609, 619 (1987).
Defendant argues that he should not be charged with
knowledge of the State's right to appeal because the right to
appeal is set forth in court rules rather than statute. That
argument is unconvincing. Equally unconvincing is the State's
argument that defendant had no expectation of finality in his PTI
diversion because our Court Rules provide that an indictment may
be dismissed after serving a PTI term only with the prosecutor's
consent, R. 3:28(c)(1), and that on the written recommendation of
the program director or the prosecutor a court may "order the
prosecution of the defendant to proceed in the ordinary course."
R. 3:28(c)(3).
Our Court Rules obviously did not contemplate this situation
(successful completion of PTI while an appeal is pending), and
just as obviously did not contemplate (in the ordinary case) that
a defendant who has successfully completed PTI would still be
subject to prosecution. We recommend that the Criminal Practice
Committee review Rule 3:28 to avoid repetition of these
circumstances. Perhaps the notice of appeal could be served on
the criminal division manager as well as the defendant. In this
case we are satisfied that defendant knew that his admission into
PTI was provisional and contested. The colloquy between court
and counsel seems to indicate that defendant was in the courtroom
when the court made its oral ruling on PTI and said that it
expected the State to appeal. Twelve days after the court signed
an order admitting defendant into PTI, the State did appeal and
served defendant's attorney with a copy of its notice of appeal.
Defendant's case is thus unlike State v. Ryan,
86 N.J. 1,
cert. denied,
454 U.S. 880,
102 S. Ct. 363,
70 L. Ed.2d 190
(1981). In that case we held that once a defendant begins to
serve a sentence for an offense, the sentence may not later be
increased. Id. at 10. Ryan "had no reason to expect that his
original sentence was not final at the time it was imposed and
his imprisonment began." Ibid.
In State v. Sanders, supra, 107 N.J. at 621, we concluded
that "the right of appeal [of a criminal sentence] provided by
N.J.S.A. 2C:44-1f(2) does not violate the fifth amendment's
double jeopardy clause, despite the fact that a defendant may
remain incarcerated for up to ten days while the State perfects
its appeal." We reasoned that "[t]he clear and unambiguous terms
of the statute remove any expectation of finality that a
defendant may vest in his sentence * * * ." Ibid. In Nwobu's
case, the trial court stated that an appeal was expected, and on
August 18, 1994--thirteen days after the issuance of the Law
Division's written opinion--the State did move for leave to
appeal that decision and gave notice of its motion to Nwobu's
attorney. It is true that the State did not immediately seek a
stay, but it is also true that the prosecutor was initially
unaware that Nwobu entered PTI.
Any expectation by defendant that entering or completing PTI
would, with finality, result in the dismissal of charges was
unreasonable. The double jeopardy clauses of the United States
Constitution and the New Jersey Constitution have not been
violated. These same factors influence our judgment on whether
principles of fundamental fairness now forbid prosecution of
Nwobu. In State v. Davis,
244 N.J. Super. 180, 193 (1990), the
Appellate Division found that once the State formally agrees to
permit a defendant to enter PTI, it may not simply reverse its
decision because a different prosecutor has taken over the case.
Nothing of that sort occurred here. Defendant always knew that
the State sought to prosecute in this case. It is not
fundamentally unfair that the appeal process has taken this
course. Thus, we affirm the judgment of the Appellate Division.
The single most important factor in these cases is that the defendants were charged with second-degree crimes. The defendants insist that the prosecutors have arbitrarily turned the degree of the crime into a per se rule against admission. The prosecutors insist that defendants have shown no "compelling reasons" for admission into PTI. Nwobu's case involves a rather sophisticated form of commercial fraud. Against that background, it is not surprising that the prosecutor found no "compelling reasons" for Nwobu's admission into PTI. There is nothing "idiosyncratic" about his background. The trial court was rather poorly served in the presentation of the matter, but there was no patent and gross abuse of discretion by the prosecutor.
The cases of Harris, Callender, and Overby are especially troublesome because defendants have made so much progress in their lives. At oral argument counsel for defendants urged that their clients not be condemned to a life of failed employment opportunities because of their criminal records. Striking the proper balance between the retributive and rehabilitative functions of criminal law is very difficult. That decision "lies, in the first instance, with the prosecutor * * * ." State v. Kraft, supra, 265 N.J. Super. at 111. As this case unfolds,
the prosecutor is free to reconsider his decision. We are not
free to substitute our judgment for his.
We reverse the judgment of the Appellate Division in State v. Callender that ordered defendants into PTI. We affirm the judgment of the Appellate Division in State v. Nwobu denying defendant's admission into PTI. We remand both cases to the Law Division for further proceedings.
Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi, and Stein join in this opinion. Justice Coleman did not participate.
NO. A-40 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL NWOBU,
Defendant-Appellant.
DECIDED February 8, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1N.J.S.A. 2C:43-12e(8) characterizes this factor as "a continuing pattern of anti-social behavior."