State of New Jersey v. A.S.-m.

133 A.3d 649, 444 N.J. Super. 334

• Court: New Jersey Superior Court Appellate Division
• Decided: February 26, 2016
• Docket: A-4682-14T2
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4682-14T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Appellant, February 26, 2016

v. APPELLATE DIVISION

A.S.-M.,

Defendant-Respondent. ______________________________

Submitted February 8, 2016 – Decided February 26, 2016

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-01-0008.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for appellant (Rory A. Eaton, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the briefs).

The opinion of the court was delivered by

FASCIALE, J.A.D.

The State appeals from a June 16, 2015 order granting

defendant's motion to reinstate him into the pre-trial

intervention (PTI) program. The court treated defendant's motion as one seeking reconsideration of a prior order, which

terminated defendant's participation in the program, purportedly

because he violated various PTI conditions. The State

challenges the order as erroneous arguing (1) readmission into

the PTI program contravenes N.J.S.A. 2C:43-12(g)(1) and

Guideline 3(g) of Rule 3:28, which the State contends allows a

defendant the benefit of only one opportunity to participate in

PTI; (2) the court disregarded the established procedure for PTI

admission and undermined the prosecutor's role in the process;

and (3) defendant's non-compliance rendered him a poor candidate

for reentry into the PTI program.

We hold that reconsideration of an order terminating a

defendant from the PTI program is not precluded by N.J.S.A.

2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28. That is, a

defendant terminated from the PTI program may be reinstated upon

reconsideration. Such a reconsideration is especially

permissible when circumstances show the initial order

terminating a defendant from PTI failed to adhere to the

requirements of N.J.S.A. 2C:43-13(e), including the obligation

to undertake a "conscientious judgment" to (1) adequately

consider whether the participant willfully violated the PTI

conditions; and (2) determine whether the defendant remains a

viable candidate for PTI under the original or modified PTI

2 A-4682-14T2 terms. State v. Devatt, 173 N.J. Super. 188, 194-95 (App.

Div.), certif. denied, 84 N.J. 441 (1980). We affirm.

I.

Defendant worked as a cashier in a department store and was

arrested for under-ringing merchandise for two individuals to

whom he owed money. A grand jury indicted and charged him with

committing third-degree shoplifting, N.J.S.A. 2C:20-11(b)(5).

Defendant, who was twenty-one-years old at the time, a lawful

permanent resident of this country, and had no criminal history,

applied for admission into the PTI program. The prosecutor

granted defendant's application and imposed various conditions

on the supervisory treatment.

Approximately four months after defendant entered the PTI

program, the State moved to terminate defendant from the

program, arguing: defendant failed to report to his probation

officer; failed to submit to a substance abuse evaluation;

tested positive for marijuana use; failed to pay fines; and

failed to complete community service. The first judge scheduled

a PTI termination hearing, at which defendant did not appear.

Following review, the judge ordered defendant's participation in

PTI terminated; however, he expressed no findings on whether

defendant willfully violated the PTI conditions or remained a

viable candidate for supervisory treatment. The first judge

3 A-4682-14T2 entered the termination order and re-listed the case for a

status conference.

At the next scheduled status conference, defense counsel

indicated she would "contact PTI to see if they [were] in any

way inclined to accept [defendant] back into [the] PTI

[program,]" and if so, she would file a motion for that relief.

At the next conference, before a new judge (the second judge),

defense counsel reported "probation" was unwilling "to join an

application to reopen [defendant's PTI] file[,]" and that she

intended to file a motion. The second judge listed the matter

for oral argument in March 2015.

At oral argument, defense counsel maintained defendant

generally complied with all PTI conditions, although she

acknowledged he "didn't fully comply" and missed some meetings

with his probation officer. She asserted defendant attempted to

schedule his substance abuse evaluation, but lacked the funds to

do so given the time period allotted; struggled paying his fines

because he was indigent; completed more than half of his

community service hours; and had remained offense free. She

urged the court to readmit defendant into the PTI program,

especially because he was subject to deportation and had a young

child.

4 A-4682-14T2 The State strenuously objected to defendant's reinstatement

into the PTI program. The assistant prosecutor argued defendant

"totally disregarded the court," which necessitated the issuance

of a bench warrant; was a poor candidate for PTI; and "had his

chance."

At the hearing, defendant admitted he would test positive

for marijuana if tested that day. The second judge, who was

clearly frustrated with defendant's lack of appreciation for the

risk of deportation, reserved decision. To fully ascertain

whether defendant remained a good candidate for supervisory

treatment, the second judge relisted the matter giving defendant

the opportunity to demonstrate he could remain drug free.

In June 2015, the parties returned to court. The second

judge noted defendant tested negative for drug use on five

separate occasions since March 2015. The assistant prosecutor

maintained the State's objection to defendant's reentry into the

PTI program, arguing that defendant was procedurally barred from

seeking reinstatement after termination by the court. The

second judge rejected the State's argument:

It seems to me the whole point of [PTI] . . . is to help offenders get on the right path, and do what they ought to be doing, so that they don't end up with a criminal record.

It does not particularly serve any of us well if someone has a criminal record for

5 A-4682-14T2 one offense that perhaps was a youthful misdirection . . . and then can't get a job [and] can't be a part of functioning society . . . .

. . . .

But since the underlying purpose is rehabilitation, and we can expect from the people in rehabilitation to make some mistakes along the way, I am going to readmit [defendant] to [the PTI program] . . . .

The second judge then modified the PTI terms by extending

defendant's participation in the PTI program for one year,

requiring him to undergo a drug and alcohol evaluation, and

imposing twenty additional hours of community service. She also

warned defendant that any violations would result in termination

of his supervisory treatment.

II.

We begin by addressing the State's contention that the

plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of

Rule 3:28 prohibit defendant's readmission into the PTI program.

On this legal question, we review the second judge's conclusions

de novo. State v. Reece, 222 N.J. 154, 167 (2015). We conclude

the State's argument is misplaced.

A.

At the outset, we note that the first judge terminated

defendant from the PTI program without conducting a sufficient

6 A-4682-14T2 termination hearing. Termination from PTI is governed by

N.J.S.A. 2C:43-13(e), which states, in pertinent part: "the

court shall determine, after summary hearing, whether said

violation warrants the participant's dismissal from the

supervisory treatment program or modification of the conditions

of continued participation in that or another supervisory

treatment program." This review requires a judge to make a

"conscientious judgment[,]" taking into consideration whether

that defendant is fit to continue in the program" before

deciding whether defendant "wil[l]fully violated [his or her]

PTI conditions" justifying termination from PTI. Devatt, supra,

173 N.J. Super. at 194-95.

The first judge did not determine whether defendant

willfully violated the PTI conditions, whether defendant

remained a suitable candidate for supervisory treatment, or

whether dismissal from PTI or modification of the PTI conditions

was warranted. Consequently, the record lacks the factual

support for the order of termination of PTI.

B.

Even though the PTI termination hearing lacked any

meaningful determination as to whether defendant willfully

violated the conditions or was otherwise unfit as a PTI

candidate, the State argues defendant is procedurally precluded

7 A-4682-14T2 from seeking reconsideration of that termination based on the

plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of

Rule 3:28.

The State's argument is premised on its conclusion that

defendant will receive supervisory treatment twice as a result

of vacating the improvidently-granted termination order.

Defendant urges we reject this interpretation, arguing he is not

receiving a second opportunity for PTI related to a different

offense, but reinstated into the program based on the underlying

shoplifting charge.

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. Nwobu, 139 N.J. 236, 240 (1995). PTI was established initially by Rule 3:28 in 1970. State v. Watkins, 193 N.J. 507, 517 (2008) (citing State v. Leonardis, 71 N.J. 85, 103 (1976) . . . . In 1979, the Legislature incorporated PTI into the overhaul of the criminal codes, establishing PTI as a statewide program pursuant to N.J.S.A. 2C:43-12. Ibid. Thus, PTI programs are "governed simultaneously by [Rule 3:28] and the statute which 'generally mirror[ ]' each other." Ibid. (quoting State v. Wallace, 146 N.J. 576, 582 (1996) (citations omitted)).

[State v. Roseman, 221 N.J. 611, 621 (2015).]

"As always, when interpreting a statute's meaning, we

attempt to discern and implement the Legislature's intent."

8 A-4682-14T2 State v. Drury, 190 N.J. 197, 209 (2007). Applying the basic

techniques of statutory interpretation, we first look to the

statute's plain meaning. Ibid. If the language of the statute

is ambiguous, or "admits to more than one reasonable

interpretation, we may look to sources outside the language to

ascertain the Legislature's intent." State v. Reiner, 180 N.J.

307, 311 (2004). Extrinsic sources used to discern the

Legislature's intent include "the statute's purpose, to the

extent that it is known, and the relevant legislative history."

Drury, supra, 190 N.J. at 209. Moreover, "[w]hen interpreting

court rules, we ordinarily apply canons of statutory

construction." Wiese v. Dedhia, 188 N.J. 587, 592 (2006).

Thus, we apply the same framework in construing both the statute

and court rule at issue.

N.J.S.A. 2C:43-12(g)(1) provides:

Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L.1970, c.226 (C.24:21-27), a conditional discharge pursuant to N.J.S.[A.] 2C:36A-1, or a conditional dismissal pursuant to P.L.2013, c.158 (C.2C:43-13.1 et al.) shall not be eligible for supervisory treatment under this section.

Guideline 3(g) of Rule 3:28, entitled "Defendants Previously

Diverted[,]" states in part that "[s]upervisory treatment may

occur only once with respect to any defendant who has previously

9 A-4682-14T2 been enrolled in a program of [PTI] or conditionally discharged

pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1." Pressler &

Verniero, Current N.J. Court Rules, Guideline 3(g) to R. 3:28

(2016).

The statute and rule preclude supervisory treatment if a

participant in the PTI program has been conditionally discharged

on separate and unrelated charges. A defendant is clearly

ineligible for PTI on new, unrelated charges. State v. O'Brien,

418 N.J. Super. 428, 438 (App. Div. 2011).

We consider defendant's reentry into the PTI program, upon

reconsideration of an order terminating his participation in the

program, a single occurrence of supervisory treatment for

purposes of the rule and statute. The plain language of

N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28 do not

expressly preclude a defendant from seeking reconsideration of

an order terminating him from the PTI program, especially when a

defendant believes the order was erroneously entered. Nor is

there any language in the statute or rule which expressly bars a

defendant, who has been erroneously terminated from the program,

from being readmitted into the PTI program. Thus, neither the

statute nor rule preclude defendant from being reinstated into

the PTI program upon reconsideration.

10 A-4682-14T2 III.

The State alternatively contends that by reconsidering a

prior order terminating a participant from supervisory

treatment, the second judge disregarded the established

procedures for admission into PTI. The State maintains such

reconsideration undermines the prosecutor's role in the

admission process. The established procedures referenced by the

State, however, apply to a prosecutor's initial review of a PTI

application, not reconsideration of an erroneously entered

termination order.

We briefly summarize the well-settled procedures for

admission into the PTI program to demonstrate that the second

judge did not undermine the prosecutor's role.

New Jersey's PTI program is governed by N.J.S.A. 2C:43-12

and the Supreme Court's guidelines for implementation, set forth

in Rule 3:28. Generally, individuals with no prior convictions

are afforded the opportunity to avoid prosecution by receiving

rehabilitative services or supervision. N.J.S.A. 2C:43-12(a).

A PTI application is initially reviewed by the criminal division

manager, R. 3:28; however, the decision to admit an applicant

into a PTI program rests with the reasoned discretion of the

prosecutor. N.J.S.A. 2C:43-12(e); see also Nwobu, supra, 139

N.J. at 246. N.J.S.A. 2C:43-12(e) identifies seventeen factors

11 A-4682-14T2 for consideration when examining an application for PTI

admission.

Prosecutors exercise broad discretion in determining who to

admit into PTI. Nwobu, supra, 139 N.J. at 246. As such, we

extend "'enhanced'" deference to that decision. State v.

Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148

N.J. 434, 443 (1997)). Our "severely limited" review is

designed to address "only the 'most egregious examples of

injustice and unfairness.'" Ibid. (quoting State v. Leonardis,

73 N.J. 360, 384 (1977)).

If an application is denied, the prosecutor must provide a

statement of findings supporting his or her conclusion.

N.J.S.A. 2C:43-12(f). A defendant may appeal by moving before

the Superior Court to overturn the prosecutor's rejection.

Ibid. The burden to "clearly and convincingly establish that

the prosecutor's decision constitutes a patent and gross abuse

of discretion" rests with the defendant. Watkins, supra, 193

N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305-

06 (App. Div. 2007)). In State v. Bender, 80 N.J. 84, 93

(1979), the Court defined a "patent and gross abuse of

discretion" in the context of a prosecutor's denial of a PTI

application:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a

12 A-4682-14T2 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 [PTI].

[(Citation omitted).]

The "patent and gross abuse of discretion" standard applies to a

prosecutor's initial decision to reject a candidate into the PTI

program.

Here, the prosecutor considered defendant's application for

admission into the program and concluded that he was a suitable

candidate for supervisory treatment. Defense counsel did not

re-apply to the prosecutor for defendant's admission into the

PTI program after the first judge terminated defendant's

participation in the program. Rather, she filed a motion for

reinstatement of PTI essentially seeking reconsideration of the

termination order. Thus, the "patent and gross abuse of

discretion" standard ordinarily applicable to a prosecutor's

initial decision does not govern a court's discretionary

decision on reconsideration to readmit a defendant into PTI. In

other words, the court's authority to reinstate a previously

admitted participant into the PTI program is not limited to

13 A-4682-14T2 circumstances where the prosecutor's objection amounts to a

"patent and gross abuse of discretion."

IV.

Finally, we reject the State's argument that defendant's

non-compliance rendered him a poor candidate for reentry into

the PTI program. Defendant's motion for readmission to PTI

sought reconsideration of the earlier order terminating

defendant's participation in PTI. Motions for reconsideration

in criminal matters are committed to the sound discretion of the

trial court and are generally intended "to correct a court's

error or oversight." State v. Puryear, 441 N.J. Super. 280, 294

(App. Div. 2015).

The first judge's "error or oversight" was failing to

determine both whether defendant willfully violated his PTI

conditions and whether defendant remained a viable candidate for

PTI. On this record, the second judge's determination defendant

remained a viable candidate for PTI was amply supported. As a

result, we conclude that the second judge did not abuse her

discretion.

The second judge specifically monitored defendant's ability

to remain drug free for approximately three months, learned that

defendant tested negative for drug use on five separate

occasions, and concluded defendant remained a viable candidate

14 A-4682-14T2 for PTI. She modified the PTI conditions by extending the

duration of the supervisory treatment, imposing new community

service obligations, and requiring defendant to undergo a

substance abuse evaluation.

Affirmed.

15 A-4682-14T2