RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0893-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RUSSELL LUKASIAK,
Defendant-Appellant. ____________________________
Argued September 23, 2019 – Decided December 4, 2019
Before Judges Fasciale and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 18-01- 0074.
Keith G. Oliver argued the cause for appellant (Proetta, Oliver & Fay, attorneys; Keith G. Oliver on the brief).
Monica Lucinda do Outeiro, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica Lucinda do Outeiro, of counsel and on the brief).
PER CURIAM Defendant Russell Lukasiak appeals from the trial court's denial of his
request from pretrial intervention (PTI). On appeal, he argues:
POINT I
THE TRIAL COURT ERRED BY DENYING [DEFENDANT] ADMISSION TO [PTI] BECAUSE HE HAS SHOWN THE PROSECUTOR ABUSED THEIR DISCRETION IN DENYING HIS ADMISSION TO [PTI].
POINT II
THE TRIAL COURT ERRED BY NOT REMANDING THE CASE TO THE [PROSECUTOR] FOR RECONSIDERATION.
POINT III
THE TRIAL COURT ERRED BY NOT CONSIDERING ALL THE FACTORS SET FORTH IN N.J.S.A. 2C:43-12(e) WHEN DECIDING WHETHER TO ADMIT [DEFENDANT] TO [PTI].
A. THE TRIAL COURT ERRED BY NOT CONSIDERING FACTOR ONE, THE NATURE OF THE OFFENSE, AND FACTOR TWO, THE FACTS OF THE CAS[E].
B. THE TRIAL COURT ERRED BY NOT CONSIDERING FACTOR THREE, THE MOTIVATION AND AGE OF . . . DEFENDANT.
C. THE TRIAL COURT ERRED BY FAILING TO CONSIDER FACTOR FOUR, THE DESIRE OF THE COMPLAINANT OR VICTIM TO FOREGO PROSECUTION.
A-0893-18T3 2 D. THE TRIAL COURT ERRED BY NOT CONSIDERING FACTOR FIVE, THE EXISTENCE OF PERSONAL PROBLEMS AND CHARACTER TRAITS WHICH MAY BE RELATED TO THE APPLICANT'S CRIME AND FOR WHICH 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 FACTOR SIX, 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.
E. THE TRIAL COURT ERRED BY FAILING TO CONSIDER FACTOR SEVEN THE NEEDS AND INTERESTS OF THE VICTIM AND SOCIETY, FACTOR EIGHT, THE EXTENT TO WHICH THE APPLICANT'S CRIME CONSTITUTES PART OF A CONTINUING PATTERN OF ANTI- SOCIAL BEHAVIOR, AND FACTOR NINE, THE APPLICANT'S RECORD OF CRIMINAL AND PENAL VIOLATIONS AND THE EXTENT TO WHICH HE MAY PRESENT A SUBSTANTIAL DANGER TO OTHERS.
F. THE TRIAL COURT ERRED BY FAILING TO CONSIDER FACTOR TEN, WHETHER OR NOT THE CRIME IS OF AN ASSAULTIVE OR VIOLENT NATURE, WHETHER IN THE CRIMINAL ACT ITSELF OR IN THE POSSIBLE INJURIOUS CONSEQUENCES OF SUCH BEHAVIOR.
A-0893-18T3 3 G. THE TRIAL COURT ERRED BY FAILING TO CONSIDER FACTOR ELEVEN, CONSIDERATION OF WHETHER OR NOT PROSECUTION WOULD EXACERBATE THE SOCIAL PROBLEM THAT LED TO THE APPLICANT'S CRIMINAL ACT, FACTOR TWELVE, THE HISTORY OF THE USE OF PHYSICAL VIOLENCE TOWARD OTHERS, AND FACTOR THIRTEEN, ANY INVOLVEMENT OF THE APPLICANT WITH ORGANIZED CRIME.
H. THE TRIAL COURT ERRED BY FAILING TO CONSIDER FACTOR FOURTEEN, WHETHER OR NOT THE CRIME IS OF SUCH A NATURE THAT THE VALUE OF SUPERVISORY TREATMENT WOULD BE OUTWEIGHED BY THE PUBLIC NEED FOR PROSECUTION, FACTOR FIFTEEN, WHETHER OR NOT THE APPLICANT'S INVOLVEMENT WITH OTHER PEOPLE IN THE CRIME CHARGED OR IN OTHER CRIME IS SUCH THAT THE INTEREST OF THE STATE WOULD BE BEST SERVED BY PROCESSING HIS CASE THROUGH TRADITIONAL CRIMINAL JUSTICE SYSTEM PROCEDURES, AND FACTOR SIXTEEN, WHETHER OR NOT THE APPLICANT'S PARTICIPATION IN PRETRIAL INTERVENTION WILL ADVERSELY AFFECT THE PROSECUTION OF CODEFENDANTS.
I. THE TRIAL COURT ERRED BY NOT CONSIDERING FACTOR SEVENTEEN, WHETHER OR NOT THE HARM DONE TO SOCIETY BY ABANDONING CRIMINAL PROSECUTION WOULD OUTWEIGH THE BENEFITS TO SOCIETY FROM CHANNELING AN OFFENDER INTO A SUPERVISORY TREATMENT PROGRAM.
A-0893-18T3 4 Because defendant failed to show the prosecutor's rejection of his PTI
application represented a patent and gross abuse of discretion, or a remand was
required because of an abuse of discretion, we affirm.
Defendant was indicted for third-degree criminal restraint, N.J.S.A.
2C:13-2(a) (count one), first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1) (count two) and third-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a)(1) (count three). The victim, O.P., was a ten-year-old relative of
defendant's wife, who defendant assaulted in his home when she was under his
care.1 Pursuant to a plea agreement, defendant pleaded guilty to third-degree
criminal restraint; the other two charges were dismissed. Defendant was
sentenced to a probationary term which included compliance with Megan's Law.
See N.J.S.A. 2C:7-1 to -23.
Defendant applied for PTI after he entered the guilty plea. 2 Although a
probation officer who interviewed defendant, designated as a "PTI investigator"
1 We use the victim's initials to protect her privacy. See N.J.S.A. 2A:82-46(a). 2 We note the application was made outside the time constraints of Rule 3:28(h) that, notwithstanding the broader parameters set forth in N.J.S.A. 2C:43 -12(e), requires the application to be made "no later than twenty-eight days after indictment." The record is insufficient for us to determine if the prosecutor "complete[d] a review of the application and inform[ed] the court and defendant (continued) A-0893-18T3 5 by the trial court, recommended that defendant be "cautiously accepted," forty-
seven days after the date of the PTI investigator's report, an assistant prosecutor
authored a memorandum to the Monmouth County Prosecutor stating "the St ate
is rejecting [defendant's] application into the PTI program." 3
In the rejection memorandum, the prosecutor cited to five specific
statutory criteria: (1) the nature of the offense; (2) the facts of the case; (3) the
motivation and age of the defendant; (4) the desire of the complainant or victim
to forego prosecution; and (10) whether or not the crime was of an assaultive
nature or violent nature, whether in the criminal act itself or in the possible
injurious consequences of such behavior.4 N.J.S.A. 2C:43-12(e)(1), (2), (3), (4),
and (10). In considering the first and second criteria, the prosecutor focused on
defendant's charge and guilty plea to third-degree criminal restraint, "a violent
within fourteen days of the receipt of the criminal division manager's recommendation" in compliance with the same Rule. R. 3:28(h). 3 We similarly point out that the record is barren of the prosecutor's approval of the position taken by the assistant prosecutor or any authorization for the assistant prosecutor to copy the memorandum to the court and defendant, as she did, ostensibly rejecting defendant's PTI application. See N.J.S.A. 2C:43-12(c), (e); R. 3:28(h) (providing review and recommendation is to be made by the prosecutor). 4 As confirmed by the State at oral argument, the rejection memorandum mistakenly designated factor ten as factor nine. A-0893-18T3 6 offense in which the [ten]-year-old victim was exposed to the risk of serious
bodily injury by . . . defendant, a trusted family member, who was supervising
the child at the time." As to the third criterion, although considering defendant's
advanced age, the "substantial number of character reference letters" submitted
in support of his application, as well as his "strong desire to enter into the PTI
program," the prosecutor concluded,
defendant maintains that the allegations against him are false, and he said [to the PTI investigator] that he "would never do such a thing." Since . . . defendant refuses to accept any wrongdoing on his part, it does not appear that he is amenable to correcting his behavior, thereby lacking motivation to successfully complete the [PTI] program.
O.P. opposed defendant's PTI admission, to which, in considering the fourth
criterion, the prosecutor gave "great weight under the circumstances." The
resultant injurious consequences of defendant's behavior, in view of the
assaultive or violent nature of the crime—the tenth statutory criterion—included
the emotional injuries to O.P., who: "reported experiencing suicidal thoughts,
depression, [post-traumatic stress disorder] and experienced a mental
breakdown after testifying in front of the Grand Jury"; was "so fearful of . . .
defendant that she is now staying with a friend instead of her family because of
A-0893-18T3 7 her fear that . . . defendant knows where she lives"; and "enrolled in weekly
counseling."
The memorandum continued:
Having considered the totality of the PTI investigator's report, including factors that weigh in favor of . . . defendant's admission into PTI (i.e., his lack of criminal history, his desire to enter the program, the large amount of reference letters) given the serious nature of the offense, his denial of wrongdoing and the victim's objection, the State is rejecting his application into the PTI program.
The trial court denied defendant's appeal of the prosecutor's rejection,
finding the prosecutor "considered the relevant factors in determining whether
to admit . . . defendant into" PTI and, deferring to the prosecutor's discretion in
weighing those factors, 5 concluded the prosecutor's decision was neither a patent
and gross abuse of discretion, nor was there "anything arbitrary, capricious or
unreasonable about the [prosecutor's] determination[.]"
Inasmuch as the decision to permit a defendant's diversion to PTI "is a
quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582
(1996), our scope of review of a PTI rejection is "severely limited," State v.
5 N.J.S.A. 2C:43-12(e) lists the seventeen, non-exclusive criteria prosecutors are to "consider in formulating their recommendation of an applicant's participation" in PTI. A-0893-18T3 8 Negran, 178 N.J. 73, 82 (2003). "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). 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). We, therefore, give PTI decisions "enhanced
deference[.]" State v. Brooks, 175 N.J. 215, 225 (2002).
The prosecutor's discretion is not unbridled, however. If 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," a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. 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." In State v. Bender, 80 N.J. 84 (1979), we elaborated on the patent and gross abuse of discretion standard:
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 judgment. . . .
A-0893-18T3 9 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].
[Id. at [93] (citation omitted).]
[Wallace, 146 N.J. at 582-83 (citation omitted) (first quoting State v. Leonardis, 73 N.J. 360, 382 (1977); then quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)).]
Defendant has failed to meet his burden. Obviously, the prosecutor
considered the criteria delineated in the memorandum. Contrary to defendant's
contention that the prosecutor "placed all the weight on the allegations of sexual
assault," neither the endangering nor the aggravated sexual assault counts were
mentioned in the rejection memorandum; only the criminal restraint charge was
considered.
Further, the weight assigned to the five mentioned factors was not
arbitrary, irrational or otherwise an abuse of discretion, much less a patent and
gross abuse. Despite defendant's claim that he "was seeking to calm down a
ten[-]year[-]old child who was in the middle of a meltdown," and that his
"actions were committed in the heat of the moment" without "any malicious
intent," he pleaded guilty to criminal restraint. That is, he admitted the nature
of the offense and the facts of the case, see N.J.S.A. 2C:43-12(e)(1) and (2),
A-0893-18T3 10 included his knowing restraint of O.P., "unlawfully in circumstances exposing
[her] to risk of serious bodily injury[,]"6 N.J.S.A. 2C:13-2(a). Moreover, the
crime was a sex offense, N.J.S.A. 2C:7-2(b)(2), requiring registration under
Megan's Law, N.J.S.A. 2C:7-2(a)(1).
As to the third criterion, the prosecutor considered defendant's age. And
the prosecutor's determination that defendant denied the allegations is buttressed
by the PTI investigator's report documenting her interview with defendant:
"[h]e maintains that the allegations against him are false and stated that he
'would never do such a thing.'" Defendant contends he is amenable to correcting
his behavior as evidenced by his semiweekly therapy to address his anxiety and
depression. He points to two reports, one from the licensed professional
counselor (LCP) who assessed defendant on March 26; the other from the
psychologist who examined defendant on March 19, 2018. The reports,
prepared after his interview with the PTI investigator on March 8, 2018, were
obviously not included with defendant's PTI application, and there is no record
proof of them being forwarded to the prosecutor. Even if they were, we discern
no evidence in the reports pertinent to the statutory PTI factors.
6 The plea transcript is not included in the appeal record, but defendant does not allege the factual basis to his plea did not include these statutory elements. A-0893-18T3 11 The LCP's report mentions defendant and the counselor "continue to
address cognitive distortions related to depression and are processing effective
[cognitive behavioral therapy] techniques," and that defendant "appears to be
making progress in treatment and is practicing coping skills to alleviate
symptoms of depression." Nothing in the report is relevant to defendant's
motivation, other than the self-serving impetus he currently advances in his
merits brief: to "overcome" the "considerable stress" and resulting "depression
and anxiety" he says were engendered from "[t]he incident" and to obtain the
"benefit from the treatment services" through PTI. Although defendant avers in
his merits brief that "it is clear the treatments available through [PTI] would be
benefication (sic)" to him and that he "understands he made a mistake and is
actively seeking treatment," none of the treatment he has undertaken is related
to the cause of his crime, only the impact his prosecution has had on him. He
also states that he "is further motivated to succeed in the program so he is not
labeled as a convicted felon and forced to register as a sex offender under
Megan's Law" and is also motivated "to complete [PTI] and work on rebuilding
his name and reputation."
Additionally, even though the psychologist determined defendant posed
"a very low risk to the community sexually," he recommended defendant, as a
A-0893-18T3 12 precaution, "not have unsupervised access with young girls," and further stated
that defendant would "benefit from therapy to guide him in achieving a positive
adjustment and in managing his emotional distress."
As such, the reports are not relevant to the fifth, sixth, eleventh, fourteenth
and seventeenth statutory factors which were not expressly mentioned in the
rejection memorandum. Neither report evidences any treatment or plan for
defendant to address his criminal behavior. Nor are the reports or defendant's
treatment relevant to the seventh factor which defendant argues was ignored by
the prosecutor. Tellingly, defendant argues the prosecutor failed to consider
criterion seven—"[t]he needs and interests of the victim and society[,]" N.J.S.A.
2C:43-12(e)(7)—because the "needs and interests of society would be better
served by not saddling [defendant] with a criminal record and forcing him to
register under Megan's Law for the rest of his life." His focus on returning to
coaching and mentoring young men and women is not relevant to the needs and
interests of the victim and society, especially for a defendant who admitted to a
sex offense that exposed the victim to serious bodily injury—a crime defendant
contends was only "technically assaultive[.]"
A-0893-18T3 13 The prosecutor considered that defendant had no prior record. The
charges do not involve any codefendants. Thus, criteria eight, nine, twelve,
thirteen, fifteen and sixteen are irrelevant.
We determine the balance of defendant's arguments, including his
contention that the victim's mother stated she would not be averse to his
admission to PTI if he "paid $40,000 in moving and therapy expenses" and, as
such, the victim's desire whether to forego prosecution should be afforded little
weight, to be without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2).
We discern no "clear error of judgment" that would warrant a court order
enrolling defendant in PTI. State v. Lopes, 289 N.J. Super. 460, 475 (Law. Div.
1995) (quoting Nwobu, 139 N.J. at 247). The prosecutor did not "fail[] to
consider all relevant factors or consider[] irrelevant factors[.]" Ibid. (quoting
Nwobu, 139 N.J. at 247). This is not one of those cases where the prosecutor's
consideration or weighing process requires judicial interference "to check [] the
'most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J.
Super. 555, 563 (App. Div. 2014) (alteration in original) (quoting Negran, 178
N.J. at 82). The denial of defendant's PTI application was neither a patent and
gross abuse of discretion, nor an abuse of discretion requiring a remand.
A-0893-18T3 14 Affirmed.
A-0893-18T3 15