NOT FOR PUBLICATION WITHOUT THE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-0196-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY O. REAVES,
Defendant-Appellant.
_____________________________
Submitted November 29, 2018 – Decided March 4, 2019
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-04-1253.
Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Tiffany M. Russo,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Corey O. Reaves, appeals from an April 28, 2017 judgment of
conviction after pleading guilty to one count of third-degree conspiracy to
commit assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(7), and
receiving one year of probation. On appeal, defendant challenges the December
13, 2016 order denying his appeal of the State's rejection of his Pretrial
Intervention program (PTI) application. We reverse the order denying
defendant's PTI appeal and remand to the trial court and instruct the prosecutor
to consider defendant's PTI application anew.
We discern the following facts from the record. On September 9, 2015,
two cab drivers were parked in a parking lot when four high-school-aged males
and three females approached their cabs. One male began writing on the window
of one of the cabs with black marker. When the cab driver stepped out of his
cab to stop the male, another male punched him in the face with brass knuckles.
The second cab driver exited his cab to assist but was met by a punch to the head
from another male. During the struggle, the second cab driver was able to grab
onto and remove an assailant's backpack. The first cab driver suffered a
fractured eye socket and jaw, which required facial reconstruction surgery. The
second cab driver went to a police station and provided a physical description
of the assailants. The only description the first cab driver could provide was
A-0196-17T2
2
that one assailant was wearing brass knuckles. No brass knuckles were ever
found.
Police searched the backpack and found the name "N. Benjamin" written
on notebooks and files. Police identified N. Benjamin but he fled the country
before charges were filed. Security footage showed the group entering and
exiting the parking lot but does not show the assault. Based on the physical
description of the assailants and the video, police focused on defendant and
N.M., a juvenile, as suspects. Police showed the video to defendant's mother,
who identified her son in the group. Based on this evidence, the prosecutor
believed defendant was the assailant with the brass knuckles who struck the first
cab driver.
Defendant turned himself in after learning he was a suspect. He was later
charged with one count of second-degree aggravated assault, N.J.S.A. 2C:5-
2(a)(1), one count of second-degree conspiracy to commit assault, N.J.S.A.
2C:12-1(b)(1), one count of fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d), and one count of third-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(d).
A-0196-17T2
3
Defendant applied to the PTI program. Pursuant to Rule 3:28, defendants
charged with violent crimes are presumptively ineligible for PTI. 1 For this
reason, and the fact defendant had two juvenile charges, one of which was
dismissed, the program manager denied defendant's application. The prosecutor
agreed and, pursuant to N.J.S.A. 2C:43-12(e), found factors one, two, four,
seven, nine, ten, fourteen, and seventeen to be relevant. The prosecutor
described defendant as the primary assailant, saying "Defendant wrote graffiti,
on . . . the rear of the victim's taxi cab," and "defendant viciously attacked the
innocent and defenseless victim with a pair of brass knuckles." Defendant, the
prosecutor explained, presented a substantial danger to the public because he is
"exceedingly violent" and, considering his juvenile adjudication, this was the
second time he was charged with a violent offense within two years.
Alternatively, the prosecutor considered mitigating factors three, eight,
thirteen, and sixteen to be relevant. The prosecutor mentioned defendant's age,
1
Effective July 1, 2018, the former Rule 3:28, which contained several
guidelines for PTI assessments, was revised and replaced by Rules 3:28-1 to -
10. The new rules more closely track the statutory factors and case law.
However, because defendant's PTI assessment was made on September 29,
2016, the former version of the rules apply. RSI Bank v. Providence Mut. Fire
Ins. Co., 234 N.J. 459, 473 n.4 (2018) (applying "version of Rule 3:28 and the
accompanying Guidelines and Comments that governed when [the defendant]
was admitted to PTI").
A-0196-17T2
4
that he does not pay child support, the fact he did not graduate from high school
or obtain a GED, his admission he smoked marijuana daily, and his "sporadic
and limited" employment history as mitigating factors. Additionally, the fact
defendant completed probation for his juvenile offense but still committed the
assault shows he was not deterred by such punishment.
Defendant appealed to the trial court and admitted he had been present
and assisted the group flee from the scene. The prosecutor reiterated many of
the same arguments of why the denial was justified. However, the prosecutor
abandoned the contention defendant was the assailant with the brass knuckles.
Rather, the prosecutor relied on the fact defendant admitted he was present for
the assaults as justification for denial of his PTI application. The trial court
declined to overturn the prosecutor's decision, citing the substantial deference
afforded to prosecutors' disposition of PTI applications.
Defendant pled guilty to one count of conspiracy to commit assault. At
defendant's sentencing, the judge explained defendant pled guilty to "basically
an aiding and abetting" charge and not "an accomplice or accessory theory"
because "[t]here's no indication nor acknowledgment that Mr. Reaves actually
physically hit anybody." Defendant was sentenced to one year of probation and
A-0196-17T2
5
his judgment of conviction was modified to reflect he spent 140 days in jail.
This appeal followed.
On appeal defendant argues the following:
Point I
THE TRIAL COURT ERRED IN FINDING THAT
THE STATE'S DENIAL OF DEFENDANT'S
APPLICATION FOR PRE-TRIAL INTERVENTION
WAS NOT A PATENT AND GROSS ABUSE OF
DISCRETION.
A. Considered Factors
Factors One, Two, Nine, and Ten
Factors Seven, Fourteen, and Seventeen
B. Applicable, But Ignored Factors
Factors Five, Six, and Eleven
C. Improperly Considered Factors
Having reviewed the record, we agree with defendant and reverse and
remand to the prosecutor for reconsideration of defendant's PTI application.
Both the statute governing admission into PTI and case law afford substantial
deference to the prosecutor's disposition of a PTI application. The prosecutor is
often in the best position to decide whether a defendant is an appropriate
candidate for PTI; however, this authority is not unassailable. We are obliged
A-0196-17T2
6
to identify when a prosecutor presents arbitrary justifications or relies on
impermissible factors to deny a PTI application. This check is necessary to
ensure applicants to the PTI program receive an honest and individualized
assessment of their amenability to rehabilitation.
We note defendant was eighteen when first arrested and on track to obtain
a high school diploma. However, because he could not make bail, he could not
complete his senior year. Defendant was nineteen when released from jail but
was unable to re-enroll in his former high school because he was too old. In his
letter to the prosecutor, he indicated a willingness to complete a GED.
This was defendant's first adult offense. In 2012, when he was a juvenile,
an obstruction of the administration of justice charge against him was dropped.
In 2014, defendant was adjudicated delinquent after committing a robbery and
was sentenced to one year of probation.
Defendant has one child and was never ordered to pay child support.
Defendant was raised by and lived with his mother. He moved frequently and
attended five schools after eighth grade. At age fifteen, defendant resumed a
relationship with his father upon his father's release from prison.
Prior to his arrest, defendant worked at a grocery store and with his father
in a landscaping and lumber business. Defendant lost his job at the grocery store
A-0196-17T2
7
due to tardiness. After his release from jail, he obtained employment providing
transportation assistance to disabled persons. Defendant admitted he smoked
marijuana.
Admission into PTI requires recommendation by the program manager
and acceptance by the prosecutor. N.J.S.A. 2C:43-12(e). Both the program
manager and prosecutor "shall consider" the following factors in rendering an
admission decision:
(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;
(5) 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;
(6) 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;
A-0196-17T2
8
(7) The needs and interests of the victim and
society;
(8) The extent to which the applicant's crime
constitutes part of a continuing pattern of anti-
social behavior;
(9) The applicant's record of criminal and penal
violations and the extent to which he may present
a substantial danger to others;
(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;
(11) Consideration of whether or not prosecution
would exacerbate the social problem that led to
the applicant's criminal act;
(12) The history of the use of physical violence
towards others;
(13) Any involvement of the applicant with
organized crime;
(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;
(15) 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;
A-0196-17T2
9
(16) Whether or not the applicant's participation
in pretrial intervention will adversely affect the
prosecution of codefendants; 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.
[Ibid.]
Guideline 3(i)(2) provides defendants accused of violent crimes are
presumptively ineligible for PTI. R. 3:28. Defendants can overcome this
presumption by showing "something extraordinary or unusual, something
'idiosyncratic,' in his or her background." State v. Nwobu, 139 N.J. 236, 252
(1995) (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).
A PTI determination requires an "individualized assessment of the
defendant considering his or her 'amenability to correction' and potential
'responsiveness to rehabilitation.'" State v. Roseman, 221 N.J. 611, 621-22
(2015) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). A defendant denied
access to PTI can appeal the decision to the trial judge, but the prosecutor's
decision "is entitled to a great deal of deference." Id. at 624. Our scope of
review is "severely limited" and "designed to address 'only the most egregious
examples of injustice and unfairness.'" State v. Denman, 449 N.J. Super. 369,
376 (App. Div. 2017) (quoting State v. Negran, 178 N.J. 73, 82 (2003)).
A-0196-17T2
10
"Although we rarely overturn the rejection of a PTI application, the prosecutor's
discretion is not unlimited." Ibid.
Our Supreme Court has said prior dismissed charges unsupported by
undisputed facts in the record should not factor into the PTI decision. State v.
K.S., 220 N.J. 190, 199 (2015). Here, both the program manager and prosecutor
specifically mentioned defendant's dismissed juvenile charge as indicative of his
lack of amenability to rehabilitation. The State argues the prosecutor did not
rely upon the dismissed charges to render a decision. However, the prosecutor's
recitation of defendant's criminal record states, "[t]he current offense constitutes
the defendant's third interaction with the criminal justice [sic]." Pursuant to
K.S., consideration of a prior dismissed charge "for any purpose" without
substantiation is improper. Ibid. ("[W]e hold that when no such undisputed facts
exist or findings are made, prior dismissed charges may not be considered for
any purpose.").
Our review of the reasons underlying the prosecutor's initial decision and
subsequent justifications leave us convinced the prosecutor described
defendant's character in a way to fit the crimes charged, rather than consider
whether he was amenable to rehabilitation. Thus, for the reasons that follow,
A-0196-17T2
11
defendant was deprived of an individualistic assessment amounting in an abuse
of discretion.
The prosecutor used factors one, two, seven, nine, and ten to describe
defendant as the principal assailant with the brass knuckles. But, upon appeal
to the trial court, the prosecutor described defendant as merely present and
complicit in the assaults. Of course, "[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." State v. Lee, 437 N.J.
Super. 555, 568 (App. Div. 2014). "Moreover, the prosecutor's decision to deny
PTI cannot be invalidated by subsequent events [such as a guilty plea] . . . ." Id.
at 569. However, a prosecutor is not entitled to base a PTI decision on disputed
facts. See, e.g., State v. Ridgway, 208 N.J. Super. 118, 127 (Super. Ct. Law
Div. 1985) (trial court overturned a prosecutor's denial of PTI in part because
the prosecutor treated a police investigation as conclusive and unilaterally
resolved factual disputes). Here, the State changed the theory of its case,
particularly because the State's first recitation of its alleged facts depicted
defendant as a violent criminal and served as the basis to deny PTI. This shows
the prosecutor considered defendant ineligible for PTI no matter his role in the
assault. Treating defendants as per se ineligible based on the crime charged,
A-0196-17T2
12
without consideration of individual circumstances, is improper. See, e.g., State
v. Baynes, 148 N.J. 434, 445 (1997). Rather, every defendant is eligible for PTI
and is entitled to an individualized assessment of their application.
The State argues it considered factors three, eight, thirteen, and sixteen as
mitigating ones, but it is difficult to discern how application of those factors
actually worked in favor of defendant's admission. The State describes
defendant as a violent offender who never finished high school or obtained a
GED, does not have custody of his child, fails to pay child support, cannot hold
a steady job, and smokes marijuana every day. But, described in accordance
with the facts, defendant could not finish high school because he spent his senior
year in jail unable to make bail, enrolled in a GED program, shared custody with
his child's mother, was never ordered to pay child support, held various jobs as
a teenager, and could have benefited from drug counseling.
Accordingly, the order rejecting defendant's PTI appeal is reversed, and
the matter is remanded for further proceedings. The prosecutor must consider
defendant's PTI application ab initio.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-0196-17T2
13