State of New Jersey v. Gregory Phelps

• Court: New Jersey Superior Court Appellate Division
• Decided: January 2, 2024
• Docket: A-0867-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0867-22

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GREGORY PHELPS,

Defendant-Respondent. _________________________

Submitted June 20, 2023 – Remanded July 6, 2023 Resubmitted December 13, 2023 – Decided January 2, 2024

Before Judges Accurso, Vernoia, and Walcott- Henderson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 22-05-0734.

William Edward Reynolds, Atlantic County Prosecutor, attorney for appellant (John J. Santoliquido, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Scott Michael Welfel, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM The State appeals from an order directing defendant Gregory A. Phelps '

admission into the Pre-Trial Intervention Program (PTI). See R. 3:28-6(c).

After the State filed its merits brief in support of the appeal, defendant's then -

counsel advised this court that defendant did not wish to contest the State's

appeal. We subsequently issued an opinion reversing the court's order directing

defendant's admission into PTI. Represented by new counsel, defendant moved

for reconsideration, arguing his prior counsel erred by failing to file a brief in

opposition to the State's appeal and representing that defendant did not wish to

oppose it.

Based on the unique circumstances presented by defendant's motion, and

for other reasons we detailed in an order, we granted the reconsideration request,

withdrew our prior opinion, and permitted defendant's new counsel to file a brief

in opposition to the State's arguments on appeal. Having considered the brief

submitted on defendant's behalf, as well as the State's arguments, the record

before the trial court, and the applicable legal principles anew, we reverse and

vacate the court's order directing defendant's admission into PTI.

The facts giving rise to the charges against defendant are not in dispute.

During a June 12, 2021 drunken early morning argument with his sister's

boyfriend, defendant sawed into the victim's forearm with a piece of glass,

A-0867-22 2 resulting in necessary medical attention and stitches to close a deep laceration.

A judge issued a domestic violence temporary restraining order (TRO) against

defendant.1 A grand jury later indicted defendant for third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d).

Defendant applied for admission to PTI. Because defendant was charged

with a crime involving domestic violence as defined under section three,

N.J.S.A. 2C:25-19, of the Prevention of Domestic Violence Act (PDVA),

N.J.S.A. 2C:25-17 to -35, and the crime charged involved violence or the threat

of violence, there is a statutory presumption against his admission into PTI.

N.J.S.A. 2C:43-12(b)(2)(b); R. 3:28-1(e)(2)(b)(ii). Defendant was therefore

required to "rebut the presumption" by including in his "application for

admission a statement of the extraordinary and compelling circumstances that

justify consideration of the application notwithstanding the presumption against

admission." R. 3:28-1(e)(3); see also N.J.S.A. 2C:43-12(b)(2)(b).

1 During later colloquy between the attorneys and the judge, it became clear the TRO was later dismissed by the victim. There is no order dismissing the TRO in the record. A-0867-22 3 Defendant's then-counsel submitted a letter as a "statement of compelling

reasons" supporting the PTI application. The letter suggested it was not clear

that the relationship between defendant and the victim supported a finding the

charged aggravated assault qualified as an act of domestic violence under the

PDVA such that defendant was subject to the presumption against PTI admission

under N.J.S.A. 2C:43-12(b)(2)(b). But the letter also stated the victim resided

with defendant's sister in the same home—defendant's mother's home—where

defendant also resided. The fact that defendant and the victim had resided, or

were residing, in the same home thereby rendered the alleged assault a crime

against a "victim of domestic violence" under the PDVA, see N.J.S.A. 2C:25-

19(d) (providing in part that a victim of domestic violence includes a person

who is eighteen or older who is subject to an act of domestic violence by "any

other person who is a present household member or was at any time a household

member" with the victim). Defendant's statement of compelling reasons

therefore established the aggravated assault charge was one to which the

presumption against admission into PTI applied under N.J.S.A. 2C:43-

12(b)(2)(b). Defendant does not argue to the contrary on appeal.

Defendant's statement of compelling reasons—submitted to overcome the

presumption against his admission to PTI—further stated the criminal charges

A-0867-22 4 arose out of a "consensual fight" during which the victim placed defendant in a

"choke hold." Defendant asserted that while in the choke hold, he "picked up a

broken bottle and cut [the victim's] arm to avoid losing consciousness."

Defendant also claimed the incident followed "the excessive use of alcohol by

the parties, including [defendant]," and that shortly after the event, defendant

participated in counseling for several months.

The letter did not state defendant was continuing counseling or detail the

nature of the counseling in which he had participated following the incident that

resulted in the charges. The letter also did not claim defendant suffered from

any prior substance abuse issues involving drugs or alcohol or that such issues

contributed to defendant's assault of the victim.

Defendant claimed he had been a resident in Atlantic County for several

years and his only prior contact with the criminal justice system included a 2017

municipal court conviction and a 2015 conviction for driving while intoxicated

(DUI). Defendant noted he had no prior domestic violence history and he had

been previously employed for several years in the construction field and more

recently had worked in property management for "over a year." The letter

offered no other putative reasons supporting defendant's effort to overcome the

statutory presumption he should not be admitted to PTI.

A-0867-22 5 In a comprehensive letter explaining the basis for the State's denial of the

application, the assistant prosecutor discussed all seventeen factors listed in

N.J.S.A. 2C:43-12(e), explaining those that weighed in favor of defendant's

admission, those that weighed against, and those that "do not necessarily weigh

in favor of or against" admission. She also said the State considered defendant's

"compelling circumstances letter" that accompanied his application. In

summary, although these were defendant's first indictable offenses, the

prosecutor explained: "There is nothing specifically exceptional or demanding

which would require the entry into the PTI program in this instance, especially

since [d]efendant is a violent offender who poses a danger not just to this victim,

but potentially to the community at large."

Defendant appealed the State's rejection. Attached as an exhibit to

defense counsel's brief was a September 12, 2022 report from a mental health

and addiction counseling service that listed the dates of eighteen sessions

defendant attended beginning shortly after the incident leading to his indictment

and stated he "continue[d] to make positive progress to his treatment goals."

The report indicated, however, that defendant attended no sessions between

November 2021, and July 2022, i.e., shortly after his indictment and application

for PTI.

A-0867-22 6 The judge heard argument on defendant's motion. Defendant contended

the prosecutor relied exclusively on the nature of the offense and the victim's

impact statement and further asserted the State did not have all the information

regarding defendant's attendance at counseling sessions. The prosecutor

countered by emphasizing the violent nature of the offense, the injury suffered

by the victim, and defendant's prior disorderly persons conviction for simple

assault and "out-of-state criminal history . . . from the State of New York for a

drug offense, as well as DUI."

The judge engaged in an extensive discussion with defendant regarding

his counseling and prior addiction to opiates. In response to questioning by the

court, defendant explained the counseling he attended focused on "substance

abuse, anger management, [and] trauma therapy." Defendant also stated he had

a prior substance abuse history primarily with opiates, but he had been "clean of

opiates" for the prior five years, he had not used alcohol for years, and that his

use of alcohol on the date of the incident "was an isolated incident" that was not

"something [he] . . . regularly would do."

The court also focused on the State's comments regarding factors five and

six. See N.J.S.A. 2C:43-12(e)(5) ("The existence of personal problems and

character traits which may be related to the applicant's crime and for which

A-0867-22 7 services are unavailable within the criminal justice system, or which may be

provided more effectively through supervisory treatment and the probability that

the causes of criminal behavior can be controlled by proper treatment"); and (6)

("The likelihood that the applicant's crime is related to a condition or situation

that would be conducive to change through his participation in supervisory

treatment"). The State had found those factors were in equipoise because it was

"unaware of any specific personal problems . . . character traits[,]" or

"circumstances" indicating defendant's behavior would "change

through . . . participation in supervisory treatment."

Noting defendant had never before admitted his past opiate addiction, the

judge reasoned there was "a tendency, when one is facing criminal charges, to

want to not be entirely forthcoming." She added, "I don't find that the . . . State

has abused its discretion here, but I . . . think maybe some more

information . . . may be helpful." She noted the dismissal of the TRO as an

"example." The prosecutor responded that "if it wasn't in the initial application

and it wasn't in the information submitted to the State, I don't know how the

State can be held responsible for taking it into consideration. I don't think it

should have been taken into consideration because it wasn't provided."

In rendering her final decision, the judge said:

A-0867-22 8 So now that I have a little bit more information about this . . . and maybe I'm wrong to explain it this way, but I don't find that [the prosecutor's denial] was based on a patent and gross abuse of discretion. . . . [B]ut I do find that the decision didn't account for all the relevant factors. And I . . . understand that [it] is actually not the failing of the State in reviewing it. It . . . just appears that while [defendant] provided information that he was attending counseling . . . I think he didn't give the detailed information that he's given to the [c]ourt . . . that set forth all of his dates of treatment. . . .

The judge then continued by describing the events that led to defendant's

indictment as a "family situation," where "maybe . . . everybody" was drinking,

and defendant "completely overreacted." Noting this was not "a one-time

situation for [defendant]," the judge, however, thought "it's the one time that he

is being forced to look into the abyss of how a simple . . . nonsense kind of

incident, even at home, can have you facing . . . a criminal conviction."

Again, reiterating the State's denial was not "abuse of discretion" but

rather was the result of "some information that was not . . . entirely fleshed

out . . . and therefore could not be considered by the State," the judge directed

defendant's admittance into PTI "with the understanding that it is an offense that

require[d] him to submit a guilty plea." See N.J.S.A. 2C:43-12(g)(3)(c)

A-0867-22 9 (limiting PTI admission to defendants charged with third- or fourth-degree

crimes involving domestic violence unless they enter a guilty plea). 2

The judge's November 17, 2022 order admitted defendant into the PTI

program for twelve months with conditions. As noted, the State appealed as of

right pursuant to Rule 3:28-6(c). We reverse.

"PTI is essentially an extension of the charging decision, therefore the

decision to grant or deny PTI is a 'quintessentially prosecutorial function.'" State

v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v. Wallace, 146 N.J. 576,

582 (1996)). "As a result, the prosecutor's decision to accept or reject a

defendant's PTI application is entitled to a great deal of deference." Ibid. (citing

State v. Leonardis, 73 N.J. 360, 381 (1977)). "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.'" State v. Johnson, 238 N.J. 119, 128-29 (2019) (quoting Wallace,

146 N.J. at 583).

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 judg[]ment. . . . In order for such an abuse of

2 The record does not indicate whether defendant pleaded guilty. A-0867-22 10 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].

[Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

The same standard governs our review. State v. Negran, 178 N.J. 73, 83

(2003). At bottom, "[t]he question is not whether [the judge] agree[s] or

disagree[s] with the prosecutor's decision, but whether the prosecutor's decision

could not have been reasonably made upon weighing the relevant factors." State

v. Nwobu, 139 N.J. 236, 254 (1995).

"When a defendant convincingly demonstrates a patent and gross abuse of

discretion, a court may admit the defendant into PTI over the prosecutor's

objection." Johnson, 238 N.J. at 129 (citing Roseman, 221 N.J. at 624-25). But

when the prosecutor has failed to consider all relevant information, a remand is

more appropriate. Nwobu, 139 N.J. at 247 (citing State v. DeMarco, 107 N.J.

562, 567 (1987)).

In this case, the court repeatedly stated the prosecutor had not abused her

discretion and affirmatively stated it did not find the rejection of defendant's PTI

application constituted a patent and gross abuse of discretion. Yet even though

the judge considered, over the prosecutor's objection, additional information—

A-0867-22 11 a report from the counseling program that was not submitted until after the

State's rejection of defendant's application—and directly from defendant at oral

argument, the judge admitted defendant into the program. In doing so, the court

did not explain why a remand was not more appropriate. Instead, the court rather

simply but erroneously substituted its judgment for that of the prosecutor. This

was clear error. See Nwobu, 139 N.J. at 253 (alteration in original) (quoting

State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993)) ("A reviewing court

'does not have the authority in PTI matters to substitute [its own] discretion for

that of the prosecutor.'").

Defendant concedes on appeal the court erred by ordering his admission

to the program and, in his opposition brief, he acknowledges the court's order

directing his admission "into PTI over the prosecutor's objection cannot stand."

He claims, however, we should vacate the court's order and remand for

consideration of what he characterizes as "critical relevant information—that

[he] has alcohol use disorder co-occurring with his presently-in-remission opiate

use disorder, and that [he] was actively attending counseling for substance abuse

disorder and anger management to address the underlying causes of the offense

in this case." Defendant claims the State's failure to consider that information

in its assessment of factors five and six, N.J.S.A. 2C:43-12(e)(5) and (6), and its

A-0867-22 12 analysis of the other factors under N.J.S.A. 2C:43-12(e), requires a remand for

the State to do so.

We reject defendant's argument because it ignores that the information

upon which he now relies was not presented in his application and statement of

compelling reasons submitted prior to the State's rejection decision. That is, the

State properly and fairly considered all the information presented in defendant's

application, as supplemented by his statement of compelling reasons, in its

thorough and thoughtful analysis of the statutory factors supporting its rejecti on

of defendant's application in the first instance. And, defendant does not dispute

that the State properly analyzed the statutory factors based on the information

supplied in defendant's application and supplementary statement of compelling

reasons.

Moreover, contrary to defendant's newly minted argument made for the

first time on appeal, the record is devoid of any information supporting his claim

the crimes for which he was charged were the result of an "alcohol use disorder

co-occurring" with an in-remission opiate use disorder or that the counseling he

attended addressed, in any manner, the "underlying causes of the offense in this

case." Rather, defendant informed the court he had not used opiates during the

five years prior to his commission of the crime and, although he indicated he

A-0867-22 13 consumed alcohol prior to his assault of the victim, he claimed he did not use

alcohol regularly, and he did not attribute his assault of the victim with a weapon

to alcohol use—in his statement of compelling reasons he claimed he used a

piece of glass to saw into the victim's arm because he feared becoming

unconscious because the victim had placed him in a choke hold.

Defendant offers too little too late in support of his claim the State failed

to properly analyze and assess the statutory factors pertinent to its decision to

reject the PTI application. The State correctly analyzed the factors based on the

information defendant provided, and defendant's claim there was pertinent

information the State failed to properly consider is undermined by the record

showing the information defendant claims the State ignored was not properly

provided to the State in his application or statement of compelling reasons and

is submitted in the form of the arguments of his counsel for the first time on

appeal.

For those reasons, we discern no basis to remand the matter for the State

to review this additional information. Defendant relies on a report from a

counseling service stating he attended counseling for several months

immediately after the incident, but the report also shows defendant did not attend

any sessions at all for several months until after he was indicted and following

A-0867-22 14 the State's rejection of the PTI application. And, as noted, defendant admitted

in colloquy with the judge that his addiction to opiates was well in the past, and

he had been "clean" for more than five years.

The prosecutor considered all the statutory factors and engaged in a

thorough weighing process. The prosecutor appropriately considered that

defendant had been indicted for a violent crime. See R. 3:28-4(b)(1) (noting

that in addition to the statutory factors, the "nature of the offense should be

considered . . . [and i]f the crime was . . . deliberately committed with

violence . . . against another person . . . the defendant's application should

generally be rejected"). The prosecutor also gave due consideration to the

victim's statement, which detailed the physical and emotional trauma he and

defendant's family suffered and urged both punishment and treatment for

defendant. See R. 3:28-4(c) (requiring "[t]he prosecutor and the court, in

formulating their recommendations or decisions regarding an applicant's

participation . . . shall give due consideration to the victim's position . . . on

whether the defendant should be admitted"). The record offers no reason to

remand the matter for the prosecutor to reevaluate her position.

A-0867-22 15 We therefore reverse and vacate the Law Division's November 17, 2022

order admitting defendant into the PTI program. The matter is remanded for

further proceedings. We do not retain jurisdiction.

A-0867-22 16