STATE OF NEW JERSEY VS. MARION PEARSON (15-11-1469, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 4, 2021
• Docket: A-1787-18
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1787-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARION PEARSON,

Defendant-Appellant. ________________________

Argued September 7, 2021 – Decided October 4, 2021

Before Judges Alvarez and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 15-11-1469.

Susan L. Romeo, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Susan L. Romeo, of counsel and on the brief).

Edward F. Ray, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Edward F. Ray, of counsel and on the brief).

PER CURIAM A jury convicted defendant Marion Pearson of two counts of second -

degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and one count

of fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f). The

trial judge sentenced defendant on September 28, 2018, to concurrent terms of

five years, subject to forty-two months of parole ineligibility required by the

Graves Act, N.J.S.A. 2C:43-6(c). We remand the matter for the Prosecutor's

Office to provide a written statement of reasons on defendant's application for

pretrial intervention (PTI), considering the application in light of N.J. Att'y

Gen., Clarification of "Graves Act" 2008 Directive with Respect to Offenses

Committed by Out-of-State Visitors from States Where Their Gun-Possession

Conduct Would Have Been Lawful (Sept. 24, 2014) (2014 Directive).

Otherwise, the convictions and sentence are affirmed.

Defendant came to the authorities' attention when a convenience store

customer saw a holstered gun strapped to defendant's side. Police arrested

defendant at the scene, seizing a Glock from his side holster, a Taurus revolver

from his right jacket pocket, and hollow-nosed bullets. Defendant, a Georgia

resident, was forty-four years old, had one prior arrest in 2004 for brandishing

a firearm, and worked as a security guard. When arrested, he showed the officers

his identification and his valid "Georgia weapons carry license."

A-1787-18 2 On July 25, 2017, the Criminal Division Manager Pretrial Intervention

Director rejected defendant's application in the absence of the prosecutor's join-

in because of the second-degree nature of the charges. The Prosecutor's Office

never responded to the application or the rejection letter.

At a status conference months later, on April 30, 2018, the prosecution

indicated it would not join in a waiver of Graves Act parole ineligibility and

would not recommend any sentence less than five years with forty-two months

of parole ineligibility. Before the trial began in August 2018, however,

defendant rejected the State's reduced last offer of probation subject to 364 days

in county jail. No one commented on defendant's PTI application.

Prior to trial, the judge granted the State's motion to bar evidence that

defendant possessed a valid permit to carry in Georgia. He concluded that the

permit was "irrelevant for the determination of the elements of the offense . . . .

It could only serve to act as a potential argument for juror nullification."

On appeal, defendant raises the following points:

POINT I

THIS MATTER MUST BE REMANDED FOR RECONSIDERATION OF DEFENDANT'S PTI APPLICATION IN ACCORDANCE WITH THE ATTORNEY GENERAL'S 2014 DIRECTIVE PERTAINING TO OTHERWISE LAW ABIDING OUT-OF-STATE VISITORS WHO POSSESS VALID

A-1787-18 3 FIREARMS PERMITS FROM THEIR STATE OF RESIDENCE.

POINT II

DEFENDANT IS ENTITLED TO A NEW TRIAL, BECAUSE THE PRECLUSION OF EVIDENCE OF HIS GEORGIA CARRY LICENSE VIOLATED HIS RIGHT TO PRESENT A COMPLETE DEFENSE AGAINST TESTIMONY FROM THE STATE'S KEY WITNESS THAT CHARACTERIZED HIM AS A DANGEROUS PERSON.

POINT III

THIS MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE STATE OFFERED NO EVIDENCE, OR EVEN AN EXPLANATION, TO REBUT THE PRESUMPTION THAT DEFENDANT WAS ENTITLED TO A NON- CUSTODIAL PROBATIONARY SENTENCE AS SPECIFIED IN THE ATTORNEY GENERAL'S 2014 DIRECTIVE.

I.

Defendant contends the matter should be remanded for the prosecutor to

consider defendant's PTI application in light of the 2014 Directive. The

Directive changed the process for out-of-state residents found in possession of

a handgun—enumerating factors for consideration in determining whether

admission to PTI or a probation/364-day county jail sentence offer should be

made available.

A-1787-18 4 "[D]iversion is a quintessentially prosecutorial function" subject to

reversal only where "a defendant can 'clearly and convincingly establish that the

prosecutor's refusal to sanction admission into the program was based on a

patent and gross abuse of . . . discretion' . . . ." State v. Wallace, 146 N.J. 576,

582 (1996) (alteration in original). "A 'patent and gross abuse of discretion' is

more than just an abuse of discretion as traditionally conceived; it is a

prosecutorial decision that 'has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial

intervention.'" Id. at 582-83.

Here, without mention of the Directive, the Division Manager rejected

defendant's application out-of-hand. For obvious reasons, we cannot review the

State's position at the time on whether defendant met the three prongs of the

2014 Directive, which may have made his admission into PTI or an initial offer

of a sentence of non-custodial probation possible.1 Nor do we know the reasons

counsel, the court, and the Prosecutor's Office omitted any mention of the 2014

1 The Court Rules as presently constituted, specifically Rule 3:28-3(b)(2), requiring a prosecutor to submit reasons for rejection within fourteen days of receipt, and Rule 3:28-6(a), requiring an appeal within ten days, were not in effect when defendant applied. A-1787-18 5 Directive, much less the reason it was considered inapplicable to defendant's

situation.

Defendant's failure to pursue the matter muddies the issue. Clearly,

defendant should have appealed the rejection. But the Prosecutor's Office was,

as an initial matter, obligated to submit a written response regardless of whether

defendant appealed the rejection. At the time, admission into PTI was

"uniformly reliant upon the recommendation of the criminal division manager,

the consent of the prosecutor, and the approval of the judge designated to act on

all matters pertaining to [PTI] in the vicinage." State v. K.S., 220 N.J. 190, 197

(2015). The failure to respond, and defendant's failure to appeal, constituted a

breakdown in the application process of unusual significance because of the

context within which the application should have been assessed—the Directive.

Our Supreme Court has reached the merits of a PTI appeal even where a

defendant's application was untimely. See State v. Johnson, 238 N.J. 119, 132

(2019). In that case, the defendant did pursue an appeal; in this case, defendant

did not. However, as in Johnson, defendant should be permitted to make this

untimely application because the record fails to include the prosecutor's all-

important written statement of reasons. See id. at 128-29, 132. The prosecutor's

failure to adhere to the process constitutes a legal error. Johnson states such

A-1787-18 6 errors pose "'a relatively low threshold for judicial intervention'" because when

the prosecutor commits a legal error, we "exercise independent judgment in

fulfilling their responsibility to maintain the integrity and proper functioning of

PTI as a whole." Id. at 129 (citing State v. Watkins, 193 N.J. 507, 520-21

(2008)). No trial judge or appellate panel can review whether a prosecutor's

veto was an abuse of discretion without a baseline—the prosecutor's written

analysis. Therefore, we remand to allow defendant to pursue his PTI remedies

after the prosecutor fulfills the obligation to consider the application in light of

the 2014 Directive and issue the requisite statement of reasons. Should the

prosecutor reject the application, defendant has the right to appeal the decision

to the trial judge in the ordinary course.

We are mindful of the Supreme Court's proscription in State v. Bell, 217

N.J. 335 (2014). There, the Court said: "We hold that PTI is a pretrial

diversionary program that is not available to a defendant once the charges have

been tried before . . . a jury and a guilty verdict has been returned." Id. at 338.

But in that case, a defendant sought to upend the PTI process to gain an

advantage no rule or statute allowed. After a jury convicted him of a third -

degree offense, not the second-degree offense for which he was indicted,

defendant then sought admission to PTI, reasoning that had he applied pre-trial

A-1787-18 7 if charged only with the third-degree offense, he would have been admitted into

the program. That argument was no more successful than a similar one made

years earlier—that a defendant who pled guilty pursuant to a negotiated plea to

a lesser, eligible offense, was therefore entitled to PTI. State v. Frangione, 369

N.J. Super. 258, 261 (App. Div. 2004).

As the Court in Bell noted, admission into PTI "following a jury trial and

the return of a guilty verdict is the antithesis of the very purpose of the program."

Bell, 217 N.J. at 349. Attempts at manipulating the system are prohibited by

Frangione and Bell. But that is not occurring here. The prosecutor's seeming

failure to adhere to the steps in the process, and to consider the Directive in

effect for some time before defendant's arrest, lowers the bar for judicial

intervention in order "to maintain the integrity and proper functioning of PTI[.]"

Johnson, 238 N.J. at 129.

II.

Defendant also contends that the court erred in preventing him from

proffering for the jury's consideration his Georgia license to carry weapons. We

consider this point to be so lacking in merit as to not warrant much discussion

in a written opinion. See R. 2:11-3(e)(1)(E).

A-1787-18 8 We agree with the judge that the evidence was irrelevant to the statutory

elements the State had to prove beyond a reasonable doubt. Additionally, it

would have been an invitation for the jury to engage in jury nullification. Our

courts have long decried jury nullification—the power to arbitrarily convict one

while acquitting another—as "the power to act against the law, against the

Legislature and the Governor who made the law" and "absolutely inconsistent

with the most important value of Western democracy, that we should live under

a government of laws and not of men." State v. Ragland, 105 N.J. 189, 208-09

(1986). This evidence's potential to confuse issues or mislead jurors greatly

exceeded any probative value. See N.J.R.E. 403.

III.

Finally, defendant contends his sentence was illegal and requires

amendment because the State failed to offer any evidence rebutting the

presumption that he should have received a non-custodial sentence given the

2014 Directive. The fatal flaw with this argument is that the 2014 Directive is

binding on prosecutors—not the court. State v. Waters, 439 N.J. Super. 215,

238-39 (App. Div. 2015) (holding the 2014 Clarification "does not alter the

validity or finality of judicial orders" and this court "must determine the validity

A-1787-18 9 of a judicial order by applying the law, not the shifting policies of the parties,

even the Attorney General.").

IV.

Although we affirm the conviction and the sentence, we remand for the

prosecutor to respond to defendant's PTI application in light of the 2014

Directive and for defendant to proceed from there. Should defendant's PTI

application be rejected, he has the right of appeal in the Law Division as in the

ordinary course. Given this decision, defendant also has the right to apply for

bail pending remand, should he decide to pursue the matter further.

Affirmed in part, but remanded for additional proceedings.

A-1787-18 10