STATE OF NEW JERSEY VS. KURT T. HARRIS (18-07-0571, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0202-19T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KURT T. HARRIS,

Defendant-Respondent.
_______________________________

Submitted February 24, 2020 – Decided March 31, 2020

Before Judges Ostrer and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Accusation No. 18-07-
0571.

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for appellant (Patrick F. Galdieri,
II, Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

Mazaraani & Liguori, LLP, attorneys for respondent
(Joseph M. Mazraani, of counsel; Jeffrey S. Farmer, of
counsel and on the brief).

PER CURIAM
 The State appeals from a trial court order admitting defendant, Kurt T.

Harris, to Pre-Trial Intervention (PTI) over the prosecutor's objection.

Defendant was arrested and charged with unlawful possession of a loaded

handgun police discovered on him during a motor vehicle stop. Defendant is a

Pennsylvania resident who has a permit to carry a concealed firearm in that state.

He asserts he was unaware that it was illegal for him to carry his firearm while

in New Jersey.

The second-degree handgun crime with which defendant is charged under

N.J.S.A. 2C:39-5(b)(1) carries a mandatory term of imprisonment with a parole

ineligibility period of 42 months. N.J.S.A. 2C:43-6(c). The mandatory

minimum sentence may be reduced, or waived altogether, on motion of the

prosecutor pursuant to N.J.S.A. 2C:43-6.2. Furthermore, defendant is not

categorically ineligible for PTI by reason of the prescribed mandatory minimum

sentence. The PTI decision, rather, must be based on a case-by-case analysis of

seventeen factors that are set forth in N.J.S.A. 2C:43-12(e). An Attorney

General directive also provides guidance to prosecutors on how to exercise their

discretion when deciding whether to consent to PTI for an out-of-state visitor

who unlawfully possesses a firearm in circumstances that would have been

lawful in the defendant's own state. Attorney General Directive, "Clarification

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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 Clarification).

The prosecutor considered the statutory PTI factors and rejected

defendant's PTI application for reasons explained in an eight-page single-spaced

letter. The prosecutor's statement of reasons addresses all of the PTI factors and

does not simply parrot them. The trial judge issued a thorough twenty-six-page

opinion that dissects how the prosecutor applied the PTI factors in view of the

2014 Clarification. The trial judge found that the prosecutor misapplied the

2014 Clarification, giving too much weight to certain offense-oriented factors

that weigh against PTI and not enough weight to offender-oriented factors that

weigh in favor of PTI. After considering the circumstances of the offense in

view of defendant's personal history, the trial court concluded that the

prosecutor's rejection of PTI amounted to a gross and patent abuse of

prosecutorial discretion.

We have reviewed the record in view of the governing legal principles and

conclude that the trial judge did not accord the prosecutor's PTI decision

sufficient deference. We recognize that reasonable minds can differ on whether

defendant should be admitted to PTI. Although the trial court explained that it

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was not substituting its judgment for that of the prosecutor, we are constrained

to conclude that, for all practical purposes, the court did just that. In particular,

the court substituted its judgment with respect to the prosecutor's assessment of

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).

We believe that the prosecutor's office acted within the ambit of its

discretion in analyzing and weighing the relevant PTI factors. However, we

agree with the trial court that the prosecutor misapplied two of the seventeen

PTI factors. We deem those errors to constitute an abuse of discretion but not a

gross and patent abuse sufficient to overturn the prosecutor's decision and order

PTI. Given the deference we owe to the prosecutor's charging discretion, we

remand the matter for the prosecutor to decide whether a proper application of

these two PTI factors would lead the prosecutor to reach a different outcome.

I.

In June 2018, defendant was arrested by an East Brunswick police officer

and charged with second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b)(1), and fourth-degree possession of hollow-nose bullets, N.J.S.A.

2C:39-3(f)(1). After agreeing to being charged by means of accusation rather

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than indictment, defendant applied to PTI. The Criminal Division Manager

reviewed the matter and recommended that defendant be admitted to PTI.

In August 2018, the prosecutor submitted a statement of reasons

explaining why the State would not agree to PTI. Defendant filed an appeal to

the Law Division challenging the rejection. After hearing oral argument, the

trial court reserved decision and ordered the parties to return to court for another

hearing in January 2019. At that hearing, the trial judge asked the State to

reconsider its decision to deny PTI. The First Assistant Prosecutor replied by

letter on January 15, 2019 explaining that he had reviewed the matter and that

he concurred with the reasons and conclusion set forth in the State's initial

rejection letter.

In February 2019, the court convened another hearing at which the court

once again asked the State to reconsider its decision. Eleven days later, the State

responded that it would not consent to PTI. On September 9, 2019, the court

issued its written decision admitting defendant to PTI over the State's objection.

The State appeals from that decision.

II.

We briefly summarize the relevant facts, which we glean from the trial

court's opinion and our review of the record. On the morning of Friday, June 1,

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2018, defendant was driving with his girlfriend from Dunmore, Pennsylvania to

the shore resort town of Seaside Heights, New Jersey. The record shows

defendant indicated to police he was "travelling to Seaside Heights for the day

with his girlfriend to go to the beach," but it is unclear whether they intended to

visit other Seaside Heights attractions, such as the boardwalk, restaurants, or

bars.

Defendant was pulled over by police on Route 18 in Middlesex County

for a motor vehicle violation. Defendant appeared nervous and was touching

his waistband. An officer directed defendant to step out of the car. As the

officer was preparing to conduct a pat down for weapons, the officer asked

defendant if he had any items on him that would "stick or poke" the officer.

Defendant answered "no," but informed the officer that a weapon was "clipped"

to his belt.1 The officer secured the handgun. The gun was loaded and had a

round in the chamber.

Defendant produced a valid Pennsylvania license to carry a concealed

firearm. Defendant told the officers that he was unaware that it was unlawful

for him to carry the weapon into New Jersey, and he did not intend to violate

1
The record is not clear as to whether the handgun was in holster. The record
is also unclear on whether the firearm was kept inside or outside defendant's
pants.
A-0202-19T3
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our gun laws. Defendant has no criminal history and no prior contacts with the

adult criminal or juvenile justice systems in either this State or in Pennsylvania.

He is by all accounts a law abiding and hardworking individual who has two

jobs. He is employed by a landscaping company and also works for a restaurant

as a bartender and cook.

III.

We begin our analysis by acknowledging the legal principles that govern

judicial review of a prosecutor's PTI decision. Those principles were recently

summarized by our Supreme Court in State v. Johnson, 238 N.J. 119 (2019).

"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.'" Id. at 127 (quoting State v. Roseman, 221 N.J.

611, 621 (2015)). As the Court explained:

PTI is essentially an extension of the charging decision,
therefore the decision to grant or deny PTI is a
"quintessentially prosecutorial function." As a result,
the prosecutor's decision to accept or reject a
defendant's PTI application is entitled to a great deal of
deference. A court reviewing a prosecutor's decision to
deny PTI may overturn that decision only if the
defendant "clearly and convincingly" establishes the
decision was a "patent and gross abuse of discretion."

[Id. at 128–29 (citations omitted).]

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 The contours of the abuse of discretion standard are well-defined, as is the

heightened requirement that such an abuse of discretion be patent and gross.

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. 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 Pretrial
Intervention.

[Id. at 129.]

The prosecutor's exercise of his or her discretion is guided by the criteria

set forth by the Legislature. If a prosecutor elects to deny a PTI application, the

prosecutor must provide a statement of reasons explaining the basis for that

decision. N.J.S.A. 2C:43-12(e). The statement of reasons must consider the

following enumerated factors:

(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

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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;

(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 toward
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;

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 (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;

(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.

[N.J.S.A. 2C:43-12(e)(1) to (17).]

The prosecutor's statement of reasons, moreover, "must demonstrate that

the prosecutor has carefully considered the facts in light of the relevant law."

State v. Wallace, 146 N.J. 576, 584 (1996). It is not sufficient for the prosecutor

merely to "parrot[] the statutory language, and present[] bare assertio ns

regarding [the defendant's] amenability to PTI." State v. Roseman, 221 N.J.

611, 627 (2015).

Importantly for purposes of the case before us, a court reviewing a

prosecutor's denial of PTI "cannot substitute its own judgment for that of the

prosecutor." State v. Hoffman, 399 N.J. Super. 207, 216 (App. Div. 2008); see

also State v. Kraft, 265 N.J. Super. 106, 112–13 (App. Div. 1993) (observing

"that 'a trial [court] does not have the authority in PTI matters to substitute [its

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own] discretion for that of the prosecutor'" (alterations in original) (quoting

State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980))). In State v.

Lee, we sustained the prosecutor's rejection of the defendant's application to

PTI, noting that the prosecutor's analysis was "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." 437 N.J. Super. 555, 569 (App. Div. 2 014).

IV.

We next apply these legal principles to the case before us. We begin by

making a few general observations. As the trial court aptly noted, there is no

mathematical formula that guides the exercise of prosecutorial discretion. 2 The

weighing of the PTI factors militating for and against PTI is a qualitative process

incapable of empirical quantification. The decision is not made simply by

comparing the number of factors favoring admission against the number of

2
The Office of the Attorney General itself acknowledges that the prosecutor's
discretion in deciding whether to admit a defendant into PTI is not channeled
with "mathematical" precision. 2014 Clarification at 8. This stands in notable
contrast to the prosecutor's discretion in waiving or reducing mandatory
minimum terms of parole ineligibility under the Comprehensive Drug Reform
Act pursuant to N.J.S.A. 2C:35-12. Cf. Revised Attorney General Guidelines
for Negotiating Cases under N.J.S.A. 2C:35-12 (July 15, 2004) (prescribing
periods of parole ineligibility based on the combined number of points ascribed
to specifically-defined aggravating and mitigating factors).
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factors militating against admission. Rather, the prosecutor must ascribe weight

to the relevant factors and balance them accordingly.

The divergent opinions expressed by the prosecutor and the trial judge

reflect a fundamental disagreement concerning the weight to ascribe to specific

factors. Notably, they disagree how to weigh the alleged offense conduct against

the factors that focus on the character and background of the defendant. The

prosecutor placed greater emphasis than the judge on the risk to public and

officer safety posed by the offense conduct. The judge, in contrast, placed

greater emphasis than the prosecutor on defendant's clean record, his

amenability to rehabilitation, and the low risk that he might commit a future

offense.

Although the State ultimately placed greater weight on the offense-

oriented PTI factors, it did not disregard defendant's personal history. The

prosecutor, in other words, did not "categorically" deny PTI based on the

seriousness of the crime. See State v. Caliguiri, 158 N.J. 28, 39 (1999),

superseded by statute, N.J.S.A. 2C:35-7(b), as recognized in Johnson, 238 N.J.

at 123 ("The nature of the PTI program suggests that categorical rejections must

be disfavored."). Rather, the prosecutor concluded ultimately that the applicable

offense-oriented PTI factors outweighed the offender-oriented factors.

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 IV.

In reaching its conclusion to overturn the prosecutor's decision, the trial

judge noted that, "the court cannot disregard the Attorney General's Graves Act

Directive dictating that people with licenses to carry in other states should be

treated with some leniency in New Jersey under certain circumstances." We

have reviewed the record and conclude that while the guidance to prosecutors

given by the Attorney General would certainly allow defendant to be admitted

to PTI, that guidance does not require the prosecutor to consent to PTI in this

case.

The 2014 Clarification instructs the prosecutor to consider, among other

things, whether, "[t]he manner and circumstances of the possession minimized

the exposure of the firearm to others in this State, thereby reducing the risk of

harm." 2014 Clarification at 6. The "minimal exposure" section of the 2014

Clarification "accounts for the likelihood that persons in New Jersey would be

exposed to the dangers posed by the presence of the unlawfully[ ]possessed

firearm by focusing on the weapon's accessibility while the defendant would be

interacting with other persons in this State." Ibid.

In this instance, the .40 caliber handgun was clipped to defendant's

waistband and was loaded with a round already in the chamber. The loaded

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condition of the firearm is an aggravating circumstance under the 2014

Clarification, which notes, "[a]n unloaded firearm presents a less immediate risk

to persons with whom the defendant might interact." Ibid. The 2014

Clarification also instructs prosecutors to consider whether a defendant "carried,

or planned or was likely to carry, the firearm on or about his person outside a

vehicle." Ibid. The weapon in this case was immediately accessible and could

be fired in an instant.

The trial court discounted the risk found by the prosecutor, noting "[the

prosecutor] does not present any facts that would support the inference that the

Defendant ever intended to draw or use the weapon." The risk to public safety

posed by immediate accessibility, however, does not require a premeditated

intention to use the weapon. Cf. N.J.S.A. 2C:39-4 (defining the separate and

distinct offense of possession of a firearm with a purpose to use it unla wfully).

Immediate accessibility by carrying a loaded firearm on one's person affords

greater opportunity to use the weapon in anger in response to a spontaneous

provocation. In contrast, having to spend time to retrieve a firearm from a secure

location, such as a car trunk, provides an opportunity for tempers to cool in the

event of an unplanned confrontation.

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 We add that the concern for public safety that arises from carrying a

firearm on one's person is not based solely on the risk that the armed person

might draw or use the weapon. The New Jersey laws that prohibit persons from

carrying a handgun in public also account for the risk that others, including

police officers, might become aware of a concealed weapon and be alarmed,

precipitating a response that could escalate quickly to an unintended but

foreseeable tragedy.

The trial court also undervalued the risk defendant's conduct posed when

it noted that "defendant never reached his destination and only exited his vehicle

at the request of police. No New Jersey citizens were exposed to the firearm.

The likelihood of potential future exposure remains speculative." We believe

this conclusion misconstrues the 2014 Clarification's consideration of the

exposure of the firearm to persons in New Jersey. It is certainly true that the

chances of further exposure in this case were effectively mitigated once police

arrested defendant and seized the unlawfully possessed handgun. Presumably,

however, such mitigation would always have occurred given that an application

for PTI presupposes an arrest and the filing of formal charges. The Directive

thus clearly focuses on the risk to the public that would have been posed had

defendant not been interdicted by police.

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 In this instance, defendant was not "traveling through New Jersey on an

interstate highway with few if any stops." 2014 Clarification at 6.3 Rather,

defendant was en route to a presumably crowded shore town where there would

be ample opportunity to interact with other persons.

We appreciate that the risk assessment contemplated by the 2014

Clarification necessarily entails speculation. That is inherent in any attempt to

predict the future. It is certainly possible, for example, that upon arriving at

Seaside Heights, defendant would have unloaded the weapon and locked it in

the trunk of his car, thereby minimizing the exposure to other persons in this

State. But it is also conceivable that he would have followed his home-state

3
This provision of the 2014 Clarification explains:

This [minimal exposure] factor . . . accounts for the
nature and circumstances of the defendant's travel into
this State, and the period(s) of time during which the
unlawfully[ ]possessed firearm would present a risk to
anyone in New Jersey. For example, traveling through
New Jersey on an interstate highway with few if any
stops presents less danger than a more protracted visit,
or multiple visits, where it is likely that the defendant
will be interacting with non-motorists in this State.

[2014 Clarification at 6 (emphasis added).]

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practice of carrying it on his person after exiting the car. 4 After all, defendant

seeks leniency from the Graves Act because he was unfamiliar with New Jersey

law and was complying with the law of Pennsylvania. Given that he is permitted

to carry a concealed weapon on his person in his home state, it is not

unreasonable to infer that he would have followed that same practice throughout

his visit to New Jersey.

The record also shows that defendant did not advise police he was carrying

a weapon in his waistband at the outset of the motor vehicle stop. He did so

only after he had been ordered out of the car and was facing an imminent frisk

that would have revealed the weapon. That suggests the possibility that he might

not have alerted the officers that he was armed had he not been ordered out of

the car based on his nervousness and furtive movements. 5 We do not mean to

4
We acknowledge that it might be reasonable to speculate on defendant's behalf
that he would not have carried a .40 caliber handgun on his person while wearing
a bathing suit on the beach. On the other side of the scales, it would be just as
reasonable to speculate that given the substantial distance between Seaside
Heights and his home near Scranton, Pennsylvania—roughly 180 miles—
defendant and his girlfriend would have participated in recreational activities at
the Jersey shore besides sunbathing. In that event, he might have ca rried the
weapon on his person while more fully clothed on the boardwalk or at a
restaurant, bar, or nightclub.
5
The 2014 Clarification provides in pertinent part:

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suggest that the timing of the disclosure is an aggravating circumstance under

the 2014 Clarification. However, the manner in which defendant disclosed the

firearm is not the strongest possible mitigating circumstance described in the

2014 Clarification.

The point, simply, is that the 2014 Clarification refers to situations that

present a stronger case for PTI than the circumstances presented in this case

(e.g., a motorist passing through New Jersey with no planned or likely

interaction with others in this State who has an unloaded firearm that is not being

carried on his person and who volunteers the presence of the weapon to police

without prompting). In sum, we believe the 2014 Clarification neither

forecloses nor foreordains PTI in the circumstances of this case.

V.

Just as defendant cannot be categorically denied PTI based on the

seriousness of the offense, he is not categorically entitled to PTI based on his

While admitting to the presence of a firearm in response
to a police question (e.g., "is there anything in the car I
should know about?") is a mitigating circumstance,
volunteering information about the firearm to police
without being prompted to do so is an especially
important mitigating factor . . . .

[2014 Clarification at 7.]
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spotless personal record. The PTI decision, ultimately, requires consideration

of both the offense and the offender. It bears emphasis, moreover, that no one

disputes that imprisonment would be inappropriate in this case. The prosecutor,

defendant, and trial judge all agree that prosecutorial leniency is warranted. The

dispute relates to the degree of leniency that should be extended by the

prosecutor. Should defendant be afforded an opportunity to avoid having a

criminal conviction on his permanent record, 6 or is it a sufficient expression of

leniency that he avoids having to serve any time in jail or prison? 7

We are convinced that there is no metaphysically right or wrong answer

to these questions. Nor are the answers dictated by statute, case law, court rule,

or the guidance to prosecutors issued by the Attorney General. The question

presents a judgment call where, as we have noted, reasonable people can

disagree. Accordingly, we do not believe that defendant has established a gross

6
Because the firearm offense is graded as a second-degree crime, before
defendant can be admitted to PTI, he must enter a guilty plea. N.J.S.A. 2C:43 -
12(g)(3)(a). Upon successful competition of the program of supervisory
treatment, the charges would be dismissed. N.J.S.A. 2C:43-12(g)(3).
7
Under N.J.S.A. 2C:43-6.2, the mandatory sentence can be avoided only upon
a prosecutor's motion made to the assignment judge.

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and patent abuse of prosecutorial discretion that warrants admitting defendant

to PTI over the prosecutor's objection.

That said, the prosecutor's application of two of the seventeen PTI factors

are cause for concern and need to be addressed. We note, as did the trial court,

that the prosecutor appears to have misapplied factor five relating to the

existence of personal problems and character traits for which services are not

available within the criminal justice system. 8 The prosecutor acknowledged that

defendant does not appear to have any such conditions and concluded that this

circumstance "supports prosecution," i.e., weighs against PTI. In support of this

conclusion, the prosecutor relied on the doctrine that ignorance of the law is not

a defense.

We agree with the trial court that this general principle of criminal

culpability, see N.J.S.A. 2C:2-4 (discussing the general principle of ignorance

8
This factor provides in its entirety:

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.

[N.J.S.A. 2C:43-12(e)(5).]
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or mistake of law), is inapposite to factor five analysis. We therefore believe

that factor five does not militate against diversion as the prosecutor found. We

offer no opinion as to the weight, if any, to accord this factor other than that it

does not weigh against PTI.

Relatedly, we agree with the trial court that the prosecutor misapplied

factor six, "[t]he 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." N.J.S.A. 2C:43-12(e)(6). The prosecutor concluded

that defendant did not have a drug or alcohol problem and therefore determined

this factor was neutral, neither supporting diversion or traditional prosecution.

However, we do not view this factor as necessarily limited to a personal

"condition" such as substance abuse. Rather, the applicant's crime in this case

appears to be related to a "situation" that might be conducive to change through

PTI, namely, defendant's ignorance of New Jersey's gun laws. We offer no

opinion on the positive weight, if any, to be accorded this factor.

We believe that the prosecutor's application of these two factors

constitutes a clear error of judgment, albeit one that does not rise to the level of

gross and patent abuse of discretion. Viewed in the context of the other PTI

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factors, we do not hold that the prosecutor's misapplication of factors five and

six subverts the goals underlying PTI. Johnson, 238 N.J. at 129.

Although a significant amount of time has already passed since defendant

was arrested and charged, and at the risk of imposing further delay in resolving

the diversion decision, we deem it to be appropriate to remand the case to afford

the prosecutor the opportunity to reevaluate the overall balancing of factors after

properly accounting for factors five and six. See Johnson, 238 N.J. at 132

(remanding "to the prosecutor for a fresh review of the defendant's [PTI]

application"). We do so without supplanting the prosecutor's primacy in

determining how much weight, if any, to ascribe to these factors, and ultimately,

in determining whether PTI is appropriate considering all relevant

circumstances.

Reversed and remanded. We do not retain jurisdiction.

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