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NOT FOR PUBLICATION WITHOUT THE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-4875-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ERIK S. ROBINSON,
Defendant-Respondent.
Submitted January 24, 2019 – Decided April 22, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 17-11-
0885.
Charles A. Fiore, Gloucester County Prosecutor,
attorney for appellant (Bryant J. Flowers, Assistant
Prosecutor, on the brief).
Helmer, Conley & Kasselman, PA, attorneys for
respondent (Jack J. Lipari, of counsel and on the brief).
PER CURIAM
The State appeals defendant Erik Robinson's admission into the pretrial
intervention program (PTI), asserting that its rejection of defendant's application
into the program was a reasonable exercise of prosecutorial discretion.
Defendant was indicted for second-degree unlawful possession of a handgun
without a permit, N.J.S.A. 2C:39-5(b)(1). We agree and reverse.
On April 23, 2017, Paulsboro police officers investigated reports of
narcotics activity in the parking lot of a park. One of the officers det ected the
odor of marijuana emanating from defendant's car, and asked him and his
passenger if they were smoking the drug. The passenger admitted they had been
doing so, and the police proceeded to search the vehicle. While it was searched,
defendant appeared very nervous and told the officers that there "might" be a
handgun in the center console. A focused search for the weapon revealed an
unloaded semi-automatic pistol in the glove box, and a semi-automatic handgun
magazine containing fourteen bullets in the center console.
It is undisputed that defendant, a Delaware resident, purchased the
handgun lawfully. It is also undisputed that in Delaware a handgun owner may
openly carry it, however, they may not conceal their possession of such
weapons.
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The State contends that defendant's possession of the weapon at the time
of arrest violated even Delaware law. Defendant urges us to reach a contrary
opinion, because the gun was not concealed on his person or within his
immediate reach. From that premise, he argues, it was not concealed and thus
not possessed in violation of that State's laws.
On May 7, 2018, defendant submitted an application for a license to carry
a concealed deadly weapon in Delaware. He did not have such a license at the
time of the offense thirteen months earlier. Defendant is twenty-three years old,
fully employed, the father of a toddler, and enjoys the support of family, friends,
and an employer. Defendant has no criminal history of any consequence to this
PTI application—only an August 20, 2017 Delaware arrest for "offensive
touching" and multiple motor vehicle violations.
After the initial program director's denial, the prosecutor rejected
defendant's application as well. She initially noted that the charge, second-
degree in nature, required a joint application. See Rule 3:28-1(d)(1). The
rejection letter went on to discuss the criteria found in N.J.S.A. 2C: 43-12 and
Rule 3:28, and the appropriate guidelines. 1 The rejection letter stated in
1
This matter is being considered, in the absence of comment on the subject by
counsel, under the prior version of Rule 3:28.
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3
pertinent part that, as to factor seven, the needs and interests of society were
served by keeping illegal guns off the streets. As to factor ten, carrying a gun
and loaded magazine clip in a vehicle "with no lawful purpose could lead to
future assaultive or violent behavior." The prosecutor therefore considered the
prosecution of individuals who unlawfully possess handguns to be necessary to
deter defendant and others. As to factor fourteen, individuals charged with
second-degree crimes required traditional prosecution. The letter concluded that
society would not benefit by allowing defendant admission into PTI.
In the State's brief in opposition to defendant's appeal of the PTI rejection
and in oral argument during the hearing, the prosecutor argued that defendant's
use of drugs while in possession of the weapon, failure to have an appropriate
permit to carry a concealed weapon in his home state, and failure to immediately
disclose the presence of the gun to police were additional considerations
justifying the rejection of defendant's application.
The judge admitted defendant into the program by way of a twenty-five-
page opinion, assessing each factor enumerated in the N.J.S.A. 2C:43-12(e)
guidelines anew. The judge prefaced his discussion by acknowledging that
applicants charged with first and second-degree offenses are not to be admitted
except on the joint application of the defendant and the prosecutor. He also
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observed that the prosecutor's original rejection letter "demonstrated a lack of
familiarity with the specific facts of this case[,]" for example, by referring to
society's interest in keeping illegal guns off the street when the gun in question
had been lawfully purchased.
The judge also included a discussion of three other PTI admissions,
consented to by the prosecutor, which he considered to be factually similar to
defendant's. He ended with the following:
Given [d]efendant's lack of criminal history, the mere
possessory nature of the offense, the lack of any
evidence tending to show any use or intended use of the
handgun, and the State's treating similar cases
differently, the prosecutor's rejection of [d]efendant's
PTI application was a patent and gross abuse of
discretion. Without justification, the State's denial of
this defendant's PTI application is arbitrary and
captious [sic] in light of the State's PTI consent in other
similar cases.
The State raises the following points on appeal:
POINT I. THE LOWER COURT WAS INCORRECT
IN GRANTING THE DEFENDANT'S ADMISSION
INTO PRETRIAL INTERVENTION
POINT II. THE LOWER COURT'S RULING
GRANTS AN EXCEPTION TO THE MANDATORY
MINIMUM WHICH IS IN OPPOSITION TO
N.J.S.[A.] 2C:43-6.2
A-4875-17T4
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We address only the first claim of error—that defendant's admission into PTI
should be reversed—because his rejection from the program was not a patent
and gross abuse of discretion.
PTI is a "diversionary program through which certain offenders are able
to avoid criminal prosecution by receiving early rehabilitative services expected
to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995).
PTI was initially created by Rule 3:28 and was later established as a statewide
program pursuant to N.J.S.A. 2C:43-12. "Thus, since 1979, PTI has been
governed simultaneously by the Rule and a statute which 'generally mirror' each
other." State v. Wallace, 146 N.J. 576, 582 (1996) (citation omitted).
Rule 3:28-1(d)(1) provides that a "person who is charged with a crime, or
crimes, for which there is a presumption of incarceration or a mandatory
minimum period of parole ineligibility" is ineligible for PTI without
prosecutorial consent. Rule 3:28-3(b) describes the application process for
persons ineligible for PTI without a prosecutor's consent. The prosecutor's
withholding of consent is subject to appeal as set forth in Rule 3:28-6. See
Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:28-1 (2019).
Rule 3:28-4(a) requires consideration of a PTI application based on the
criteria set forth in N.J.S.A. 2C:43-12(e) as well as those found in Rule
A-4875-17T4
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3:28-4(b). Defendants charged with a first or second degree crime must also
enter a guilty plea prior to admission into PTI: "[t]o be admitted into [PTI], a
guilty plea must be entered for a defendant who is charged with: . . . a first or
second degree crime[.]" Rule 3:28-5(b)(2); see also N.J.S.A. 2C:43-12(g)(3).
Determining which defendants should be diverted into the PTI program
"is a quintessentially prosecutorial function." Wallace, 146 N.J. at 582.
Prosecutors have broad discretion in making these decisions and enjoy
"enhanced or extra" deference. State v. Negran, 178 N.J. 73, 82 (2003) (citation
omitted); State v. K.S., 220 N.J. 190, 199-200 (2015). Their PTI
recommendations should take into consideration the non-exhaustive list of
seventeen statutory factors enumerated in N.J.S.A. 2C:43-12(e). State v.
Roseman, 221 N.J. 611, 621 (2015).
If a prosecutor rejects a PTI application, "then a written statement of
reasons must be provided." State v. Caliguiri, 158 N.J. 28, 36 (1999). That
statement of reasons "may not simply 'parrot' the language of relevant statutes."
Id. at 37 (citation omitted). A PTI determination requires the prosecutor to make
an individualized assessment of the defendant, considering his "amenability to
correction" and potential "responsiveness to rehabilitation." Roseman, 221 N.J.
at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).
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The trial court's review of PTI decisions, however, is "severely limited"
and "serves to check only the 'most egregious examples of injustice and
unfairness.'" Negran, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360,
384 (1977)). 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." Watkins, 193 N.J. at 520 (citations omitted). This
means a decision that "has gone so wide of the mark sought to be accomplished
by PTI that fundamental fairness and justice require judicial intervention." Ibid.
(quoting Wallace, 146 N.J. at 582-83). Neither the trial nor appellate courts
should substitute their own discretion for that of the prosecutor, "even when the
prosecutor's decision is one which the trial court disagrees with or finds to be
harsh[.]" State v. Waters, 439 N.J. Super. 215, 237 (2015) (citation and internal
quotations omitted).
An abuse of discretion exists when a defendant can prove that the PTI
denial "(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." Roseman, 221 N.J. at 625 (quoting State
v. Bender, 80 N.J. 84, 93 (1979)). Nonetheless, "[i]n order for such an abuse of
discretion to rise to the level of 'patent and gross,' it must further be shown that
A-4875-17T4
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the prosecutorial error complained of will clearly subvert the goals underlying
[PTI]." Ibid. (quoting Bender, 80 N.J. at 93).
The PTI guidelines require defendants charged with first- or second-
degree offenses, who are presumptively ineligible for admission, to demonstrate
compelling extraordinary circumstances or "something 'idiosyncratic' in his or
her background" in order to overcome the presumption. Nwobu, 139 N.J. at 252
(quoting State v. Jabbour, 118 N.J. 1, 7 (1990)); Pressler & Verniero, Current
N.J. Court Rules, cmt. 2 on R. 3:28-1 (2019).
Defendant did not demonstrate some compelling extraordinary
circumstance, or something idiosyncratic in his background that would have
overcome the presumption against admission. Without reaching the issue of the
procedural roadblocks given the nature and degree of the charge, there is nothing
so compelling about the circumstances of the arrest, or so idiosyncratic about
defendant's background, to justify admission over the prosecutor's objection.
Doubtless, any conviction will have long-term serious consequences to a
defendant who previously led a blameless life. But that harsh reality is true in
every case involving similarly situated defendants. Therefore, having failed to
overcome the presumption against admission, defendant should not have been
admitted into the program by the court.
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Nor do we agree with the trial judge that the prosecutor placed excessive
weight on the nature of the offense when considering the factors enumerated in
the guidelines. Although the prosecutor's letter was somewhat cursory, we glean
from it that the prosecutor assessed the entire picture. The letter should have
more fully expanded on an individualized assessment of defendant and the crime
he committed. But the prosecutor took into account two facts she considered
consequential: that in defendant's home state, his possession was unlawful, and
that immediately before the discovery of the weapon defendant had been
consuming drugs.
We therefore conclude that the Law Division judge substituted his own
judgment for that of the prosecutor. As we noted, his opinion reassessed each
factor found in the guidelines, rather than focusing on whether the prosecutor's
rejection was a patent and gross abuse of discretion. The standard is not whether
from an individual's perspective he should be given the opportunity to
successfully complete PTI, or whether from the judge's perspective a poor
decision has been made.
The prosecutor's rejection was not a patent and gross abuse of discretion
or an egregious example of injustice and unfairness. See Negran, 178 N.J. at
82. The prosecutor's decision, although it would have benefitted by
A-4875-17T4
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amplification, did not go so wide of the mark as to offend fundamental fairness
and require judicial intervention. See Waters, 439 N.J. Super. at 236.
Which brings us to a final point. The judge's inclusion of other PTI
admissions of which he was aware, and that he believed were relevant to his
rejection of the prosecutor's decision, was improper. Those other matters were
not subject to judicial notice. See N.J.R.E. 201. They were not outlined on the
record based on a State v. Benjamin application by defendant for the
information. 228 N.J. 358, 374-75 (2017). The State had no opportunity to
distinguish between those examples and the case at hand. In sum, the judge
improperly admitted defendant into the program, as the prosecutor's rejection
was not a patent and gross abuse of discretion.
Reversed.
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