NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2274-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KAYVONNE D. MILES,
Defendant-Respondent.
Submitted September 20, 2021 – Decided September 30, 2021
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Complaint No. S-2020-0135- 2019.
William A. Daniel, Union County Prosecutor, attorney for appellant (Milton S. Leibowitz, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Douglas Helman, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM The State appeals from an April 14, 2021 order admitting defendant
Kayvonne D. Miles into the pretrial intervention (PTI) program over the
prosecutor's objection. The State contends the motion judge erred by finding
the prosecutor's decision rejecting defendant from PTI constituted a patent and
gross abuse of discretion. We reverse and remand.
I.
The relevant facts leading to the prosecutor's denial of defendant's PTI
application are undisputed and accurately stated in her initial denial letter.
Between November 15, 2019, and December 10, 2019, defendant stole various
items worth $7,151.90 from a Target store in Union, where he was employed as
a "Security Specialist" for more than two years. Video surveillance cameras
depicted eleven instances in which defendant removed items from the sales
floor, brought them into the security office, and left the store without paying for
them.
Accordingly, on December 10, 2019, Target's security manager installed
a covert camera above the door to the security office. Later that day, the
manager observed defendant remove electronic gaming devices from the store
floor and return to the security office with the items. The covert camera depicted
defendant concealing the items in Target shopping bags. When confronted by
A-2274-20 2 the security manager, defendant admitted his conduct. Target terminated
defendant's employment and contacted the Union Police Department.
Defendant was charged with third-degree theft, N.J.S.A. 2C:20-3(a), in a
complaint-summons. He was twenty-three years old at the time of the offense,
had no prior criminal history, and lived with his parents.
On December 29, 2020, defendant applied for PTI, and a probation officer
recommended admission. Thereafter, the prosecutor issued a cogent written
statement of reasons, rejecting defendant's application. The prosecutor found
six of the seventeen nonexclusive criteria set forth in N.J.S.A. 2C:43-12(e) were
relevant to her decision: the "nature of the offense" (factor one); the "facts of
the case" (factor two); the "needs and interests of the victim and society" (factor
seven); the "extent to which the applicant's crime constitutes part of a continuing
pattern of anti-social behavior" (factor eight); the "crime is of such a nature that
the value of supervisory treatment is outweighed by the public need for
prosecution" (factor fourteen); and the "harm done to society by abandoning
criminal prosecution outweighs the benefits to society by channeling an offender
into a supervisory treatment program" (factor seventeen). The prosecutor
A-2274-20 3 detailed her reasons for each of those six factors, and noted defendant's
"motivation and age" (factor three) weighed "minimally in defendant's favor."1
Considering factors one and two in tandem, the prosecutor noted: "This
was not a one-time offense but occurred multiple times over the course of nearly
one month." Further, defendant "attempted to hide his actions" by removing the
items from the sales floor, returning to the security office with the items, placing
them in shopping bags in an area of the office that was not under video
surveillance, and removing the items from the store without paying for them.
The prosecutor determined "[t]he facts and nature of this matter [w]ere too
serious to allow defendant into PTI here, where defendant's misconduct
terminated only when confronted by his manager."
Regarding factors seven, fourteen, and seventeen, the prosecutor
concluded PTI was "not outweighed by prosecution." The prosecutor reasoned:
Companies are entitled to trust that those they hire as security personnel or as asset protection officers would do just that, protect the assets. Further, theft from companies gets passed onto the consumer leading to higher prices for goods as companies make up the loss suffered when a theft occurs.
1 In its responding trial brief, the State addressed all remaining factors, finding all were inapplicable, except factor four: "the victim is unwilling to forgo prosecution" because Target is "concerned about restitution" and the risk that defendant will repeat this conduct "as a security guard elsewhere." A-2274-20 4 As to factor eight, the prosecutor noted defendant's crime spree occurred
over the course of nearly one month. Accordingly, she found the "crime
constitute[d] a continuing pattern of anti-social behavior."
Citing Rule 3:28-4(b)(1),2 which in relevant part provides "the defendant's
application should generally be rejected" where the defendant breaches the
"public trust," the prosecutor found defendant violated Target's trust for many
of the same reasons cited previously in her rejection letter. The prosecutor also
noted "defendant knew that during that time of year it was harder for the
[s]ecurity [m]anager of that Target location to perform his weekly inventory
checks[.]"
Defendant appealed the denial of his PTI application, contending the
prosecutor's rejection constituted a patent and gross abuse of discretion. He
claimed the prosecutor "relied on inappropriate factors" by, for example, giving
undue weight to the nature of the charges in view of his willingness to pay full
restitution. Defendant further contended the State "failed to consider all relevant
factors under N.J.S.A. 2C:43-12(e)." In that regard, defendant claimed the
2 The prosecutor mistakenly cited subsection (a) of the Rule. The prosecutor noted that the Rule includes consideration as to "whether defendant's violation is part of a continuing criminal business or enterprise," but did not rely on that factor. In any event, in its trial brief and its merits brief on appeal, the State clarified that its rejection of defendant's application did not rely upon that factor. A-2274-20 5 prosecutor "failed to consider [his] youth and immaturity at the time of this
offense" and that he has since matured. Because Target is a private company,
defendant also argued the State abused its discretion by finding he breached the
public trust.
Following argument on March 19, 2021, the judge reserved decision and
thereafter issued a written decision, granting defendant's motion. This appeal
followed.
II.
We begin our analysis by recognizing certain well-established principles.
The scope of judicial review of the prosecutor's rejection of PTI is "severely
limited." State v. Negran, 178 N.J.
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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-2274-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KAYVONNE D. MILES,
Defendant-Respondent.
Submitted September 20, 2021 – Decided September 30, 2021
Before Judges Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Complaint No. S-2020-0135- 2019.
William A. Daniel, Union County Prosecutor, attorney for appellant (Milton S. Leibowitz, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Douglas Helman, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM The State appeals from an April 14, 2021 order admitting defendant
Kayvonne D. Miles into the pretrial intervention (PTI) program over the
prosecutor's objection. The State contends the motion judge erred by finding
the prosecutor's decision rejecting defendant from PTI constituted a patent and
gross abuse of discretion. We reverse and remand.
I.
The relevant facts leading to the prosecutor's denial of defendant's PTI
application are undisputed and accurately stated in her initial denial letter.
Between November 15, 2019, and December 10, 2019, defendant stole various
items worth $7,151.90 from a Target store in Union, where he was employed as
a "Security Specialist" for more than two years. Video surveillance cameras
depicted eleven instances in which defendant removed items from the sales
floor, brought them into the security office, and left the store without paying for
them.
Accordingly, on December 10, 2019, Target's security manager installed
a covert camera above the door to the security office. Later that day, the
manager observed defendant remove electronic gaming devices from the store
floor and return to the security office with the items. The covert camera depicted
defendant concealing the items in Target shopping bags. When confronted by
A-2274-20 2 the security manager, defendant admitted his conduct. Target terminated
defendant's employment and contacted the Union Police Department.
Defendant was charged with third-degree theft, N.J.S.A. 2C:20-3(a), in a
complaint-summons. He was twenty-three years old at the time of the offense,
had no prior criminal history, and lived with his parents.
On December 29, 2020, defendant applied for PTI, and a probation officer
recommended admission. Thereafter, the prosecutor issued a cogent written
statement of reasons, rejecting defendant's application. The prosecutor found
six of the seventeen nonexclusive criteria set forth in N.J.S.A. 2C:43-12(e) were
relevant to her decision: the "nature of the offense" (factor one); the "facts of
the case" (factor two); the "needs and interests of the victim and society" (factor
seven); the "extent to which the applicant's crime constitutes part of a continuing
pattern of anti-social behavior" (factor eight); the "crime is of such a nature that
the value of supervisory treatment is outweighed by the public need for
prosecution" (factor fourteen); and the "harm done to society by abandoning
criminal prosecution outweighs the benefits to society by channeling an offender
into a supervisory treatment program" (factor seventeen). The prosecutor
A-2274-20 3 detailed her reasons for each of those six factors, and noted defendant's
"motivation and age" (factor three) weighed "minimally in defendant's favor."1
Considering factors one and two in tandem, the prosecutor noted: "This
was not a one-time offense but occurred multiple times over the course of nearly
one month." Further, defendant "attempted to hide his actions" by removing the
items from the sales floor, returning to the security office with the items, placing
them in shopping bags in an area of the office that was not under video
surveillance, and removing the items from the store without paying for them.
The prosecutor determined "[t]he facts and nature of this matter [w]ere too
serious to allow defendant into PTI here, where defendant's misconduct
terminated only when confronted by his manager."
Regarding factors seven, fourteen, and seventeen, the prosecutor
concluded PTI was "not outweighed by prosecution." The prosecutor reasoned:
Companies are entitled to trust that those they hire as security personnel or as asset protection officers would do just that, protect the assets. Further, theft from companies gets passed onto the consumer leading to higher prices for goods as companies make up the loss suffered when a theft occurs.
1 In its responding trial brief, the State addressed all remaining factors, finding all were inapplicable, except factor four: "the victim is unwilling to forgo prosecution" because Target is "concerned about restitution" and the risk that defendant will repeat this conduct "as a security guard elsewhere." A-2274-20 4 As to factor eight, the prosecutor noted defendant's crime spree occurred
over the course of nearly one month. Accordingly, she found the "crime
constitute[d] a continuing pattern of anti-social behavior."
Citing Rule 3:28-4(b)(1),2 which in relevant part provides "the defendant's
application should generally be rejected" where the defendant breaches the
"public trust," the prosecutor found defendant violated Target's trust for many
of the same reasons cited previously in her rejection letter. The prosecutor also
noted "defendant knew that during that time of year it was harder for the
[s]ecurity [m]anager of that Target location to perform his weekly inventory
checks[.]"
Defendant appealed the denial of his PTI application, contending the
prosecutor's rejection constituted a patent and gross abuse of discretion. He
claimed the prosecutor "relied on inappropriate factors" by, for example, giving
undue weight to the nature of the charges in view of his willingness to pay full
restitution. Defendant further contended the State "failed to consider all relevant
factors under N.J.S.A. 2C:43-12(e)." In that regard, defendant claimed the
2 The prosecutor mistakenly cited subsection (a) of the Rule. The prosecutor noted that the Rule includes consideration as to "whether defendant's violation is part of a continuing criminal business or enterprise," but did not rely on that factor. In any event, in its trial brief and its merits brief on appeal, the State clarified that its rejection of defendant's application did not rely upon that factor. A-2274-20 5 prosecutor "failed to consider [his] youth and immaturity at the time of this
offense" and that he has since matured. Because Target is a private company,
defendant also argued the State abused its discretion by finding he breached the
public trust.
Following argument on March 19, 2021, the judge reserved decision and
thereafter issued a written decision, granting defendant's motion. This appeal
followed.
II.
We begin our analysis by recognizing certain well-established principles.
The scope of judicial review of the prosecutor's rejection of PTI is "severely
limited." State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit
diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace,
146 N.J. 576, 582 (1996); see also State v. Roseman, 221 N.J. 611, 624 (2015).
"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." State v. Nwobu, 139 N.J. 236, 246 (1995)
(citation omitted).
A-2274-20 6 A "[d]efendant generally has a heavy burden when seeking to overcome a
prosecutorial denial of his admission into PTI." State v. Watkins, 193 N.J. 507,
520 (2008) (internal citation omitted). Therefore, "to overturn a prosecutor's
rejection, a defendant must 'clearly and convincingly establish that the
prosecutor's decision constitutes a patent and gross abuse of discretion.'" State
v. Nicholson, 451 N.J. Super. 534, 553 (App. Div. 2017) (internal citations
omitted). "A patent and gross abuse of discretion is defined as a decision that
'has gone so wide of the mark sought to be accomplished by PTI that
fundamental fairness and justice require judicial intervention.'" Watkins, 193
N.J. at 520 (quoting Wallace, 146 N.J. at 582-83).
Accordingly, courts give prosecutors "broad discretion" in determining
whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015).
That discretion is not, however, without limits. Negran, 178 N.J. at 82. "A
rejected applicant must be provided with a clear statement of reasons for the
denial." Ibid. Further, the decision whether to admit a defendant to a PTI
program is "'primarily individualistic in nature' and a prosecutor must consider
an individual defendant's features that bear on his or her amenability to
rehabilitation." Nwobu, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110,
119 (1979)).
A-2274-20 7 "N.J.S.A. 2C:43-12(e) sets forth a list of seventeen nonexclusive factors
that prosecutors must consider in connection with a PTI application." State v.
Johnson, 238 N.J. 119, 128 (2019). Rule 3:28 contains similar considerations,
and also requires:
If the crime was (i) part of organized criminal activity; or (ii) part of a continuing criminal business or enterprise; or (iii) deliberately committed with violence or threat of violence against another person; or (iv) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected.
[R. 3:28-4(b)(1).]
We apply the same standard of review of a prosecutor's rejection of a PTI
application as the trial court and review the court's decision de novo. State v.
Waters, 439 N.J. Super. 215, 226 (App. Div. 2015). We will interfere with a
prosecutor's decision only in "the most egregious examples of injustice and
unfairness." Ibid. (internal citations and quotations omitted).
Guided by those standards, we conclude the judge erred in ordering
defendant's admission into the PTI program over the prosecutor's objection.
Defendant failed to demonstrate the prosecutor's decision was not based on a
thorough consideration of all appropriate factors and constituted a gross and
patent abuse of discretion. The prosecutor properly gave significant emphasis
A-2274-20 8 to the nature and circumstances of the offense, including defendant's deliberate
theft from Target, which entrusted defendant to guard against thefts from its
Union retail store. Defendant used his "inside" position to steal items from his
employer over the course of several weeks. That conduct also supported the
prosecutor's finding that defendant's conduct constituted a pattern of anti-social
behavior.
The prosecutor also considered defendant's individual characteristics,
including his age and lack of record. Against those mitigating factors, the
prosecutor considered defendant's violation of his employer's trust. Although
Target is not a governmental entity, it was not unreasonable for the prosecutor
to conclude: "The fact that defendant abused his position with Target causes the
State concern." Indeed, defendant was expressly hired to guard and protect
Target's property. The prosecutor determined that such a serious crime
warranted a meaningful non-diversional outcome.
The motion judge erred by interjecting himself into the process of
weighing applicable factors pertinent to the PTI application submitted by
defendant. The judge predicated his decision upon his own assessment of the
PTI factors, by opining, for example, that "it is not uncommon for an employee
to take advantage of their employer" instead of analyzing whether the prosecutor
A-2274-20 9 had grossly abused her considerable discretion. While reasonable minds could
differ in analyzing and balancing the applicable factors in this case, judicial
disagreement with a prosecutor's reasons for rejection does not equate to
prosecutorial abuse of discretion so as to merit judicial override. State v.
DeMarco, 107 N.J. 562, 566-67 (1987). In this instance, the motion judge
improperly substituted his own discretion for that of the prosecutor.
We are convinced from our review of the record that the prosecutor
considered, weighed, and balanced all requisite factors, including those personal
to defendant, and the facts and circumstances of the offense. Her rejection of
defendant's PTI application did not constitute a patent and gross abuse of
discretion. We therefore vacate the order entering defendant into the PTI
program, and remand for further proceedings on the summons.
Reversed and remanded. We do not retain jurisdiction.
A-2274-20 10