NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3906-11T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
October 27, 2014
v. APPELLATE DIVISION
JUSTIN A. LEE,
Defendant-Appellant.
________________________________
Submitted September 22, 2014 - Decided October 27, 2014
Before Judges Sabatino, Guadagno, and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 10-09-2276.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lon Taylor, Assistant Deputy
Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney (Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Defendant Justin A. Lee applied for admission to the pretrial
intervention ("PTI") program after he was charged with two counts
of aggravated assault with respect to a police officer and
resisting arrest.1 His application was rejected by the Essex
County Prosecutor, despite having a positive recommendation by the
Judiciary's PTI program director. The trial court initially
remanded the matter to the prosecutor for reconsideration, which
resulted in the prosecutor abiding by her original decision to
deny PTI and providing amplified written reasons for the denial.
After hearing further oral argument, the trial court ultimately
deferred to the prosecutor's discretion and upheld the PTI denial.
On appeal, defendant raises several novel legal arguments
that he did not raise in the trial court. In particular, he
contends that PTI Guideline 3(i) in Rule 3:28, which expresses a
presumption against PTI where the defendant's offense was
"deliberately committed with violence or threat of violence
against another person," is inconsistent with and preempted by the
PTI statute, N.J.S.A. 2C:43-12(e). Defendant further contends,
as a matter of first impression, that because he disputed the
police officers' factual account of the incident and provided
written eyewitness statements supporting his competing version,
the judge reviewing the PTI denial was obligated to address the
discrepancy by conducting an evidentiary hearing. Defendant also
argues that the PTI denial in this case must be reversed because
1
The indictment also named a co-defendant, who is not a party to
this appeal, and charged him with different crimes.
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the prosecutor engaged in a "patent and gross abuse of discretion."
State in re V.A., 212 N.J. 1, 23 (2012). For the reasons that
follow, we affirm.
I.
The record indicates that defendant was on the streets of
Bloomfield at about 7:40 p.m. on April 29, 2010, when approximately
thirty young men and women were taking part in or observing a
melee. During the course of the melee, a young woman was stabbed
with a knife, although it is not alleged that defendant himself
owned or held the knife at any point. Police officers responded
to the scene. Defendant attempted to walk away. He did not heed
warnings from the officers directing him to stand with several
other persons up against a fence.
Although the facts at this critical point in the chronology
are disputed, it appears that several officers and defendant then
engaged in a struggle, leading to one of the officers sustaining
a broken nose. The police maintain that defendant deliberately
struck the officer's nose with the back of his head. Conversely,
defendant contends that one of the officers pulled him back by his
dreadlocks, causing his head to bash into that officer's nose.
In support of his version of the facts, defendant presented
notarized typed statements from two alleged eyewitnesses, as well
as his own signed handwritten statement. The eyewitnesses both
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stated that defendant had been approached by the police from behind
after he had failed to respond to the police officers' commands.
However, neither eyewitness explicitly confirmed defendant's
central claim that the police officer's broken nose had been self-
inflicted.
At the time of the incident, defendant was twenty years old.
He is a high school graduate, employed, and apparently not
affiliated with any gangs. He has no prior adult convictions.
After being charged in the indictment, defendant applied for
PTI. As we have already noted, the court's PTI program director
recommended him for admission. Even so, the county prosecutor
denied his PTI application in a January 14, 2011 letter. That
initial denial letter mainly focused on the violent nature of
defendant's alleged conduct in resisting the police at the scene
and in injuring an officer. In particular, the prosecutor relied
on PTI Guideline 3(i), which prescribes that "[i]f the crime was
. . . deliberately committed with violence or threat of violence
against another person[,] . . . the defendant's application should
generally be rejected." See Guidelines for Operation of PTI in
New Jersey, Pressler & Verniero, Current N.J. Court Rules,
Guideline 3(i) to R. 3:28 at 1169 (2015).
Defendant sought review of the initial PTI rejection by the
trial court. After oral argument, Judge Michelle Hollar-Gregory
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issued a letter opinion on May 6, 2011, remanding the PTI request
back to the prosecutor for reconsideration. In that letter
opinion, the judge found that the prosecutor's initial rejection
letter lacked the necessary specificity, and also did not
sufficiently discuss certain potential mitigating factors.
After reexamining the matter, the prosecutor reached the same
conclusion in a June 17, 2011 supplemental letter rejecting
defendant for PTI a second time. Once again, the prosecutor
stressed the violent nature of the street encounter and defendant's
refusal to heed the repeated commands of several officers.
Following additional argument, Judge Hollar-Gregory issued a
final ruling on October 25, 2011, upholding the prosecutor's denial
of PTI. In her oral decision, the judge observed that the
prosecutor had "addressed the concerns that this [c]ourt
[previously] had," concerning the previous PTI denial. The judge
also noted the statutory presumption in PTI Guideline 3(i), which
relates to cases of alleged violent conduct. On the whole, the
judge concluded that the prosecutor's rejection, as amplified in
her second letter, did not represent a "patent and gross abuse of
discretion."
Defendant subsequently entered into a plea agreement with the
State, automatically preserving through Rule 3:28(g) his right to
appeal the trial court's decision ratifying the PTI denial.
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Pursuant to the agreement, defendant pled guilty to third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), in exchange for the
dismissal of the assault charges and the State's recommendation
to have him receive a probationary sentence. The trial court
sentenced defendant to one year of probation, which presumably has
now been served.
II.
On appeal, defendant makes several legal arguments for the
first time concerning the applicable PTI standards and the process
for judicially reviewing a prosecutor's PTI determination. He
also contends that, given the particular factual circumstances
here, the prosecutor abused her discretion in denying him PTI.
More specifically, defendant raises these points in his
brief:
POINT I
SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES
NOT PROVIDE FOR A PRESUMPTION AGAINST PTI
ADMISSION BASED UPON A "VIOLENT" OFFENSE,
GUIDELINE 3(i) OF [RULE] 3:28 IS PREEMPTED BY
THE STATUTE AND IS INVALID. (not raised below)
POINT II
SINCE THE PROSECUTOR'S RECONSIDERATION
DECISION STILL FAILED TO PROPERLY ASSESS
RELEVANT PTI FACTORS – EVEN ASSUMING THE
VIABILITY OF THE PRESUMPTION AGAINST
ADMISSION, THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION AFFIRMING THE PTI DENIAL.
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POINT III
CONTRARY TO THE TRIAL COURT'S DECISION
AFFIRMING THE PTI DENIAL, A COURT HAS
AUTHORITY TO CONSIDER FACTUAL DISPUTES,
ESPECIALLY IF THOSE DISPUTES ARE MATERIAL TO
THE PTI DECISION.
POINT IV
SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES
NOT DIFFERENTIATE BETWEEN THE AUTHORITY OF THE
"PROGRAM DIRECTOR" AND THE PROSECUTOR IN
MAKING PTI ASSESSMENTS, THE STANDARD OF REVIEW
OF A PROSECUTORIAL VETO OVER THE PROGRAM
DIRECTOR'S GRANT OF ADMISSION SHOULD BE AN
"ABUSE OF DISCRETION" STANDARD, RATHER THAN
THAT OF "GROSS AND PATENT ABUSE OF
DISCRETION." (not raised below)
Before commenting on these points2, we make several preliminary
observations. PTI is "a discretionary program diverting criminal
defendants from formal prosecution." State v. Caliguiri, 158 N.J.
28, 35 (1999). Admissions into PTI are governed both by statute,
N.J.S.A. 2C:43-12(a)–(j), and Guidelines accompanying a court
rule, R. 3:28. See Pressler & Verniero, supra, Guideline 1 to R.
3:28 at 1166-67.
Admission into PTI is "a quintessentially prosecutorial
function." State v. Wallace, 146 N.J. 576, 582 (1996). In
carrying out this function, prosecutors are guided by a number of
2
We shall discuss the points raised in a different order than
presented in defendant's brief.
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different principles. Primarily, prosecutors are required to
consider the seventeen factors listed under N.J.S.A. 2C:43-12(e).3
"[U]nless and until a defendant demonstrates the contrary, our
judges must presume that all relevant factors were considered and
weighed prior to a prosecutorial veto." State v. Bender, 80 N.J.
84, 94 (1979).
As we have already noted, PTI Guideline 3(i) specifies that an
application for PTI should "generally be denied" in instances
where a defendant "deliberately commit[s]" an offense "with
violence or threat of violence against another person[.]" Pressler
3
The seventeen factors include, among other things:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
. . . .
(7) The needs and interests of the victim and society;
. . . .
(10) 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;
. . . .
(14) 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;
. . . . ; and
(17) 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.
[N.J.S.A. 2C:43-12(e).]
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& Verniero, supra, Guideline 3(i) to R. 3:28 at 1169. In the
instances where what has been described as this "presumption"
against PTI applies, the applicant must show, as the Guidelines
instruct, "compelling reasons justifying the applicant's admission
and establishing that a decision against enrollment would be
arbitrary and unreasonable." Ibid. These compelling reasons must
consist of "something extraordinary or unusual, something
'idiosyncratic' in [the defendant's] background." State v. Nwobu,
139 N.J. 236, 252 (1995) (citation omitted).
The scope of judicial review of PTI decisions is "severely
limited[,]" and interference by reviewing courts is reserved for
those cases where needed "to check [] the 'most egregious examples
of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82
(2003) (quoting State v. Leonardis, 72 N.J. 360, 384 (1997)
("Leonardis II")). Thus, on appeal, this Court reviews PTI
decisions with "enhanced deference." State v. Brooks, 175 N.J.
215, 225 (2002). A defendant seeking to overturn rejection from
PTI must "clearly and convincingly establish" that the decision
rejecting his or her application was "a patent and gross abuse of
discretion." State v. Watkins, 193 N.J. 507, 520 (2008). If a
defendant rejected for PTI can prove that the denial "(a) was not
premised upon a consideration of all relevant factors, (b) was
based upon a consideration of irrelevant or inappropriate factors,
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or (c) amounted to a clear error in judgment[,]" then an abuse of
such discretion would "be manifest." Bender, supra, 80 N.J. at
93.
A.
As his first legal argument, defendant contends that the
presumption expressed in Guideline 3(i) to deny PTI in situations
of deliberate violence conflicts with the PTI statute, N.J.S.A.
2C:43-12(e).4 He asserts that the statute only makes the "nature
of the offense," see N.J.S.A. 2C:43-12(e)(1), and whether the
offense is of "an assaultive or violent nature," see N.J.S.A.
2C:43-12(e)(10), mere factors in the overall analysis having no
inherent greater importance than other factors. He argues that
the statute, in this sense, "preempts" the presumption against PTI
set forth in Guideline 3(i) for situations of deliberate violence.
We disagree.
There is no irreconcilable difference between the provisions
in the Guidelines and in the statute. The Guidelines are simply
an effort to articulate considerations that were later codified
in the statute. For nearly three decades, PTI has been governed
simultaneously by the Rule and the statute which "generally
4
Although this general point was not argued below, we choose to
reach it, and other issues defendant failed to raise in the trial
court, in our discretion. Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973).
10
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mirror[]" each other. Watkins, supra, 193 N.J. at 517 (quoting
Wallace, supra, 146 N.J. at 582). "[N]owhere does the statute
attempt to instruct the prosecutor on the relative weight to be
assigned [the] several criteria." Wallace, supra, 146 N.J. at
585.
Although Guideline 3(i) sets forth a presumption, that
presumption can be overcome. Thus, while couched in terms of a
"presumption," the Guideline is not a mandate. Rather it is only
a vehicle to "elaborate[] upon statutory criteria," while still
vesting ultimate decision making authority in the prosecutor.
Wallace, supra, 146 N.J. at 586.
Defendant's reliance on State v. T.A.B., 228 N.J. Super. 572
(Law Div. 1988), is inapposite. In T.A.B. there was a direct and
inevitable conflict between the PTI court rule and the PTI statute.
The rule provided that PTI should be limited to one year; the
statute extended the period to three. T.A.B., supra, 228 N.J.
Super. at 574-77. The Law Division held that there was an obvious
direct conflict in that instance and that the rule should yield.
Ibid. Here, no such direct conflict is present. The presumption
in Guideline 3(i) is not irrebutable and may be surmounted by
offsetting considerations that favor a defendant's admission to
PTI.
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It is also significant that Guideline 3(i) and the seventeen
statutory criteria for PTI have coexisted for about thirty years.
Indeed, Rule 3:28 predates the PTI statute by about two years.
Compare Pressler & Verniero, supra, Guideline 3(i) to R. 3:28 at
1169 (approved on September 8, 1976), and N.J.S.A. 2C:43-12 (passed
in 1978 and effective September 1, 1979); see also The New Jersey
Code of Criminal Justice: Report on S. No. 738 before the S.
Judiciary Comm., 1978 Leg. (1978) (recognizing that "[p]retrial
intervention programs are currently operating in New Jersey
pursuant to court rule").
As a well-established principle of statutory interpretation,
"the legislative branch is presumed to be aware of judicial
constructions of statutory provisions." State v. Singleton, 211
N.J. 157, 180 (2012). Moreover, in the context of judicial
interpretation of existing statutes, such "legislative retention
of judicially construed language signals an agreement with the
language, as construed." State v. Fielding, 290 N.J. Super. 191,
193-94 (App. Div. 1996); see also State v. Frye, 217 N.J. 566, 580
(2014) (recently applying this principle in the context of the
Legislature's presumed awareness of case law interpreting the DWI
statutes).
"There is a well-accepted principle that the practical
administrative construction of a statute over a period of years
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without interference by the [L]egislature is evidence of its
conformity with the legislative intent and should be given great
weight by the Courts." Body-Rite Repair Co. v. Dir., Div. of
Taxation, 89 N.J. 540, 545-46 (1982) (quoting Automatic
Merchandising Council v. Glaser, 127 N.J. Super. 413, 420 (App.
Div. 1974)); see also A.Z. ex rel. B.Z. v. Higher Educ. Student
Assistance Auth., 427 N.J. Super. 389, 401 (App. Div. 2012) (same).
Here, the continued application of Guideline 3(i), which has
been in force, essentially unaltered, for decades, neither leads
to an absurd result nor frustrates the presumed legislative intent.
In effect, Guideline 3(i) does no more than "channel prosecutorial
discretion" in a manner that leaves the ultimate responsibility
on the prosecutor to "weigh the various factors and to reach a
determination." Wallace, supra, 146 N.J. at 586. We recognize
that the Guidelines were initially adopted before the PTI statutory
factors were codified. Even so, the Legislature's failure to
repudiate Guideline 3(i) in its 1978 enactment, and its subsequent
inaction leaving the Guideline intact, provides some indication
that the Legislature does not perceive the Guideline to be
inconsistent with the statute.
Guideline 3(i) and the PTI statutory provisions have been in
place for decades without the disharmony alleged by defendant
being identified as a problem, let alone a recurring one. We
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discern no conflict between that Guideline and the overall
statutory framework.
B.
On a related theme, defendant also generically contends that
the judicial review standard of a "patent and gross abuse of
discretion," which the Supreme Court endorsed in Leonardis II,
supra, 73 N.J. at 381, in 1977, should be modified for situations
like the present one where the prosecutor has overridden a positive
recommendation from the PTI program director. The State responds
that it would usurp the prosecutor's Executive Branch powers to
require greater consideration of the views of a PTI program
director, who is employed by the Judicial Branch.
Without resolving this separation-of-powers question, we note
that defendant's request to not employ the highly deferential PTI
standard of review where the prosecutor's PTI decision disagrees
with the PTI program director's recommendation is, in essence, a
policy issue. That policy issue is for the Supreme Court and the
Legislature to evaluate in their respective policymaking roles.
It is beyond our role as an intermediate appellate court to decide
the policy issue. State v. Hill, 139 N.J. Super. 548, 551 (App.
Div. 1976) (noting the limited functions of an intermediate
appellate court). There is nothing presently in the Guidelines,
the PTI statute, or the Supreme Court's case law dictating that
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greater deference must be accorded to a program director's
recommendation to approve a PTI application. We therefore decline
defendant's invitation to endorse this new principle.
C.
In another general argument, defendant contends that, in
certain rare cases, such as this one, the trial court should
conduct an evidentiary hearing where the underlying facts that
affect a defendant's suitability for PTI have been disputed. The
State opposes this contention, noting that if such hearings were
required they would have the undesirable capacity to convert PTI
rejections into "mini-trials."
We reject defendant's claim of entitlement to an evidentiary
hearing. As a practical matter, we agree with the State that
requiring such hearings, even in limited instances, will unduly
thwart the prosecutor's discretionary functions in deciding
whether to approve PTI for a particular defendant. Such fact-
finding excursions before the trial court also would delay and bog
down the efficient disposition of PTI applications and any related
plea negotiations that might be occurring. The hearings would
also force the State's fact witnesses to bear the burdens and
inconvenience of an additional testimonial appearance in the case
if PTI is not granted. We discern no constitutional or statutory
right to such an evidentiary hearing.
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This is not to suggest that, when reviewing a PTI application,
a prosecutor has the prerogative to completely disregard evidence
proffered by an applicant that bears upon the applicable factors
under the Guidelines and the PTI statute. Cf. State v. Hogan, 144
N.J. 216, 236 (1996) (analogously noting, in the context of grand
jury presentations, a prosecutor's responsibility to not overlook
evidence that is "clearly exculpatory" or that "directly negates
the guilt of the accused"). A prosecutor is certainly free to
disbelieve statements presented by defense witnesses and to
instead credit the anticipated contrary testimony of the State's
witnesses. Even so, the prosecutor should be expected, in the
appropriate exercise of his or her discretion over PTI that is
subject to judicial review, to examine all pertinent facts and
evidence presented bearing on the PTI criteria, including the
"nature of the offense," N.J.S.A. 2C:43-12(e)(1), and the "facts
of the case," N.J.S.A. 2C:43-12(e)(2).
If there is a question of credibility to be resolved
concerning the fact witnesses, the occasion for resolving that
question is at trial, not in a preliminary hearing before the
trial court when it is reviewing a prosecutor's PTI denial. See
Nwobu, supra, 139 N.J. at 252 (noting that "appropriate
administration of the [PTI] program militates against basing
enrollment upon the weight of the evidence of guilt" (citation
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omitted)). Nor should such a hearing be provided as a tactical
exercise for defense counsel to obtain testimony from the State's
witnesses that might be later used for impeachment purposes at a
future trial.5
In sum, we reject defendant's contention that the trial court
was obligated to conduct an evidentiary hearing to resolve whether
his own competing narrative of the events (and that of his two
proposed witnesses) is more credible than the version of the facts
provided by the police officers. We agree with the State that
such a "mini-trial" would not have been appropriate.
D.
Apart from these general legal arguments, defendant asserts
that the prosecutor's specific decision in this case to deny him
PTI was a "patent and gross abuse of discretion." Watkins, supra,
193 N.J. at 520. We concur with the trial judge that defendant
has failed to sustain his heavy burden of establishing such an
extreme abuse of the prosecutor's prerogatives.
Despite defendant's alternative version of the facts, there
is ample evidence to support the presumption of PTI denial in
Guideline 3(i) for acts of "deliberate" violence. It is undisputed
that, at a minimum, some form of struggle between defendant and
5
We make this observation generically, as no such objective by
defendant's counsel in this case is apparent from the record or
the briefs.
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the police officers took place. The police officers asserted that
defendant assaulted them deliberately. Defendant asserted it was
accidental, but the prosecutor did not have to accept his claim.
The prosecutor could believe defendant's action was deliberate,
even though N.J.S.A. 2C:12-1(b)(5)(a), one of the charged offenses
at issue here, also encompasses knowing, reckless, and certain
negligent conduct. Moreover, the prosecutor's decision to deny
PTI cannot be invalidated by subsequent events, namely that
defendant later pled guilty only to resisting arrest with a
recommendation of probation.
Although defendant certainly has several mitigating factors
in his favor, including such things as his relative youth, his
lack of a prior criminal conviction, his high school education,
his employment, and his apparent lack of past violent behavior,
the prosecutor sufficiently took those positive traits into
account in weighing the PTI criteria. The prosecutor also was
entitled to consider, on the other side of the ledger, the evidence
indicating that defendant disregarded the commands of police
officers who were responding to a volatile street brawl, assaulted
two of those officers, and broke the nose of one of the officers
while resisting them.
As the trial judge reasonably concluded, the prosecutor's
amplified letter adequately responded to the court's initial
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concerns about the completeness and clarity of the reasons for PTI
rejection expressed in the prosecutor's initial denial letter.
The prosecutor's analysis in the second letter is sufficiently
cogent and grounded in the facts and the applicable PTI standards
to be upheld, even though reasonable minds might differ as to
whether defendant is a suitable candidate for admission into the
program.
Lastly, we reject defendant's contention that the prosecutor
engaged in impermissible "double-counting" by referring multiple
times to the violent aspects of the facts within his analysis.
Even assuming for the sake of discussion that double-counting
principles can apply to PTI analyses, the prosecutor appropriately
referred to the State's version of the facts where those facts
were relevant to the applicable PTI factors. The facts certainly
can be discussed more than once within a PTI denial letter, insofar
as they may bear on the discrete criteria for eligibility.
Affirmed.
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