STATE OF NEW JERSEY VS. JOSHUA J. GIBSON(14-09-2720, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-3305-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSHUA J. GIBSON,

Defendant-Appellant.

_________________________________________

Submitted April 25, 2017 – Decided July 21, 2017

Before Judges Leone and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
14-09-2720.

Weinstock & Associates, LLC, attorneys for
appellant (Oded M. Weinstock, of counsel and
on the brief; Sarah Blumberg-Weinstock, on the
brief).

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Melinda A.
Harrington, Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM

Defendant Joshua Gibson pled guilty to third-degree

aggravated assault and received one year of probation. He appeals
his February 1, 2016 judgment of conviction, challenging the trial

court's order denying his appeal from the prosecutor's rejection

of his application for pre-trial intervention (PTI). We affirm.

I.

On April 15, 2014, defendant was at the MurMur nightclub at

the Borgata Hotel Casino & Spa in Atlantic City with his then-

girlfriend. Another patron, Artur Mavashev, allegedly made

unwanted advances toward defendant's girlfriend and groped her

despite defendant repeatedly telling him to stop. The State

alleged that the parties were separated by Borgata security and

that a video showed defendant punched Mavashev while a security

officer was standing between them. Defendant's blow caused

Mavashev to fall backward and hit his head against the wall,

rendering him unconscious. Mavashev sustained a fracture of the

left temporal lobe and post-traumatic hemorrhagic contusions of

the brain resulting in seizures and hearing loss. Defendant

admitted striking the victim.

Defendant was charged with third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(7). Defendant applied for admission to PTI.

The court's PTI director recommended his admission, but his

application was denied by the prosecutor's office. Defendant

filed a motion appealing the prosecutor's denial to the trial

court. Defendant submitted a new statement from his ex-girlfriend,

2 A-3305-15T4
who claimed Mavashev hit defendant before security arrived. The

prosecutor reviewed defendant's motion and the ex-girlfriend's

statement, but continued to deny PTI.

After a hearing on December 2, 2015, the trial court rejected

defendant's challenge to the prosecutor's denial of PTI. The

court found the prosecutor considered defendant's individual

circumstances and "all relevant factors at great length,"

including the circumstances leading to the assault, and

defendant's meritorious record in the United States Coast Guard.

Thereafter, defendant entered a guilty plea to third-degree

aggravated assault. Under the plea agreement, defendant preserved

his right to appeal the denial of his PTI motion. See R. 3:28(g).

Defendant now appeals, arguing:

THE PROSECUTOR'S REJECTION OF DEFENDANT-
APPELLANT JOSHUA GIBSON'S APPLICATION TO THE
ATLANTIC COUNTY PRE-TRIAL INTERVENTION
PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE
OF DISCRETION.

II.

The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule

3:28, and the Guidelines for Operation of Pretrial Intervention

in New Jersey, reprinted after Rule 3:28 in Pressler & Verniero,

Current N.J. Court Rules (2017) [hereinafter Guidelines].

"N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be

considered by the criminal division manager and prosecutor in

3 A-3305-15T4
determining admission into [PTI]." State v. K.S., 220 N.J. 190,

197 (2015). Courts must "presume that a prosecutor considered all

relevant factors, absent a demonstration by the defendant to the

contrary." State v. Wallace, 146 N.J. 576, 584 (1996).

"Deciding whether to permit diversion to PTI 'is a

quintessentially prosecutorial function.'" State v. Waters, 439

N.J. Super. 215, 225 (App. Div. 2015) (quoting Wallace, supra, 146

N.J. at 582). "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." Ibid. (quoting State v. Nwobu,

139 N.J. 236, 246 (1995)). "Accordingly, 'prosecutors are granted

broad discretion to determine if a defendant should be diverted'

to PTI instead of being prosecuted." Ibid. (quoting K.S., supra,

220 N.J. at 199).

"Thus, the scope of review is severely limited." Ibid.

(quoting State v. Negran, 178 N.J. 73, 82 (2003)). "Reviewing

courts must accord the prosecutor '"extreme deference."'" Ibid.

(quoting Nwobu, supra, 139 N.J. at 246). "[I]nterference by

reviewing courts is reserved for those cases where needed 'to

check [] the "most egregious examples of injustice and

unfairness."'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div.

4 A-3305-15T4
2014) (alterations in original) (quoting Negran, supra, 178 N.J.

at 82), certif. denied, 222 N.J. 18 (2015)).

We review the court's reversal of the prosecutor's decision

de novo. Waters, supra, 439 N.J. Super. at 226. Thus, we apply

the same standard as the trial court. Ibid. We must hew to that

deferential standard. "In order 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.'" Ibid. (quoting State v. Watkins, 193 N.J.

507, 520 (2008)).

III.

The prosecutor initially denied defendant's application for

admission into PTI because of "[t]he nature of the offense," "[t]he

facts of the case," "[t]he needs and interests of the victim and

society," and because "the crime is of an assaultive or violent

nature." N.J.S.A. 2C:43-12(e)(1), (2), (7), (10). The prosecutor

emphasized that defendant struck Mavashev after security officers

had already separated the parties, that defendant caused serious

injuries, and that the victim desired prosecution. See N.J.S.A.

2C:43-12(e)(4). Noting the strong need to deter defendant and

others, the prosecutor found that "the crime is of such a nature

that the value of supervisory treatment would be outweighed by the

public need for prosecution," and that "the harm done to society

5 A-3305-15T4
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)(14), (17).

Moreover, as the prosecutor noted, under the Guidelines

"[t]here is a '"presumption against acceptance"' into Pretrial

Intervention for defendants who have committed certain categories

of offenses." K.S., supra, 220 N.J. at 198 (citation omitted).

"[I]f the crime was . . . deliberately committed with violence

. . . against another person . . . the defendant's application

should generally be rejected." Ibid. (quoting Guideline 3(i)).

By striking Mavashev, defendant committed a deliberate violent

crime, which resulted in substantial injuries. "If a defendant

'fails to rebut the presumption against diversion,' then

'[r]ejection based solely on the nature of the offense is

appropriate.'" Waters, supra, 439 N.J. Super. at 227 (alteration

in original) (quoting State v. Caliguiri, 158 N.J. 28, 43 (1999)).

"A defendant may rebut the presumption by 'showing compelling

reasons justifying the applicant's admission and establishing that

a decision against enrollment would be arbitrary and

unreasonable.'" Ibid. (quoting Guideline 3(i)). "'[A] defendant

must demonstrate something extraordinary or unusual,' not merely

'that the accused is a first-time offender and has admitted or

accepted responsibility for the crime.'" Ibid. (quoting Nwobu,

6 A-3305-15T4
supra, 139 N.J. at 252). "[T]his is a fact-sensitive analysis

that requires consideration of 'idiosyncratic' circumstances

demonstrating that denial of PTI has resulted in a 'serious

injustice.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting

Nwobu, supra, 139 N.J. at 252).

Defendant contends such compelling reasons existed here

because he previously served in the United States Coast Guard and

received multiple commendations, including an achievement medal

for assisting in the rescue after an airliner ditched in the

"Miracle on the Hudson." The prosecutor recognized defendant's

service and commendations but concluded that such considerations

were not so compelling as to overcome the presumption given the

statutory factors. "Under these criteria, the interests of society

may justify the denial of an application for admission into PTI

even though a defendant has led an exemplary life except for the

conduct which forms the basis of the pending criminal charges."

State v. Seyler, 323 N.J. Super. 360, 370 (App. Div. 1999), aff’d,

163 N.J. 69 (2000); see Nwobu, supra, 139 N.J. at 253 (finding

"nothing extraordinary or unusual about Nwobu's case," even though

"[h]e seems to have led a blameless life until now").

Like the trial court, we are not willing to disturb the

prosecutor's assessment that defendant's military record, though

impressive, is insufficient to overcome the presumption against

7 A-3305-15T4
PTI admittance for violent crimes. In any event, "[e]ven if

'extraordinary and unusual' circumstances exist to overcome the

presumption against admission into PTI for certain offenses," the

"courts may overrule a prosecutor's decision to accept or reject

a PTI application only when the circumstances '"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."'" Roseman, supra, 221 N.J. at 624-25

(quoting Wallace, supra, 146 N.J. at 582).

"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."

[Wallace, supra, 146 N.J. at 583 (citation
omitted).]

Defendant has not demonstrated an abuse of discretion under

the first two prongs of the standard laid out in Wallace. As the

trial court found, the prosecutor considered the relevant factors,

and defendant does not claim the prosecutor's decision was based

on irrelevant or inappropriate factors. We must therefore

determine whether defendant satisfied the third prong by

8 A-3305-15T4
demonstrating the prosecutor committed a clear error of judgment.

Ibid. Our Supreme Court has defined "a clear error of judgment"

as a decision "'"based on appropriate factors and rationally

explained," but . . . "contrary to the predominant views of others

responsible for the administration of criminal justice."'" State

v. Baynes, 148 N.J. 434, 444 (1997) (quoting Nwobu, supra, 139

N.J. at 253). We are particularly hesitant to find that a

prosecutor's determination was a clear error of judgment. State

v. Maddocks, 80 N.J. 98, 105 (1979).

Defendant asserts the prosecutor improperly weighed the facts

of the case, N.J.S.A. 2C:43-12(e)(2), by failing to consider the

circumstances leading up to defendant's assault on Mavashev.

However, it is apparent from the prosecutor's PTI rejection

memorandum, and the prosecutor's comments during oral argument,

that the prosecutor considered defendant's claim that Mavashev had

made persistent unwarranted sexual advances to defendant's then-

girlfriend. Defendant argues the prosecutor ignored his ex-

girlfriend's statement submitted with his motion to the trial

court. However, the prosecutor's second letter specifically said

9 A-3305-15T4
the prosecutor had reviewed the materials submitted with the

motion.1

Defendant next argues the prosecutor should have discounted

Mavashev's desire for prosecution. However, whether the victim

"desire[s] . . . to forego prosecution" is a relevant inquiry.

N.J.S.A. 2C:43-12(e)(4). Defendant alleges Mavashev may have

withheld consent to PTI as leverage for the harassment charge he

faced from his conduct toward defendant's ex-girlfriend the night

of the incident. Defendant further alleges Mavashev refused to

consent because of possible ramifications to his subsequent civil

suit against defendant and others. However, defendant submitted

no evidence supporting those allegations, and the victim's

subsequent actions were irrelevant to the prosecutor's decision.

In any event, "[v]ictim consent is an appropriate factor to

consider under Guideline 3 and N.J.S.A. 2C:43-12(e)(4)" even if

based on personal reasons. State v. Imbriani, 291 N.J. Super.

171, 180 (App. Div. 1996). Given the severity of Mavashev's

injuries, the prosecutor did not place undue weight on Mavashev's

desire for prosecution.

1
The prosecutor was not required to change position based on these
materials. "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." Lee,
supra, 437 N.J. Super. at 568.

10 A-3305-15T4
 Finally, defendant contends the prosecutor improperly weighed

"[t]he needs and interests of the victim and society," and "the

harm done to society by abandoning criminal prosecution," N.J.S.A.

2C:43-12(e)(7), (17), without elaborating on how each applied. A

prosecutor must provide a statement of reasons justifying a

decision to reject the defendant for PTI, and that statement should

demonstrate that the prosecutor has carefully considered the facts

and relevant law, as opposed to simply reciting the statutes,

rules, or guidelines. Wallace, supra, 146 N.J. at 584. While the

prosecutor's explanation of factors (7) and (17) was cursory,

prohibiting violent physical altercations is clearly in society's

interest, as the trial court recognized. Further discussion of

this societal interest was not required.

The prosecutor was not required to reach a different balance

because defendant wants to serve in law enforcement in the future.

Moreover, the statute, rule, and Guidelines "clearly intended to

leave the weighing process to the prosecutor." Waters, supra, 439

N.J. Super. at 234 (quoting Wallace, supra, 146 N.J. at 585-86).

In any event, defendant cannot meet the standard for a patent

and gross abuse of discretion because the prosecutor's decision

did not "'clearly subvert the goals underlying Pretrial

Intervention.'" Wallace, supra, 146 N.J. at 583 (citation

omitted). Granting defendant PTI would not necessarily serve all

11 A-3305-15T4
the goals of PTI set forth in N.J.S.A. 2C:43-12(a)(1)-(5). Cf.

Baynes, supra, 148 N.J. at 451. This was not a "'victimless'

offense[]," but rather a violent assault arguably involving

"serious criminality." N.J.S.A. 2C:43-12(a)(3), (4). Nor was the

prosecutor required to find that PTI would be sufficient to deter

defendant from future criminal behavior. See N.J.S.A. 2C:43-

12(a)(1), (2), (5). We cannot say the prosecutor's decision

subverted the goals of PTI.

"The question is not whether we agree or disagree with the

prosecutor's decision, but whether the prosecutor's decision could

not have been reasonably made upon weighing the relevant factors."

Nwobu, supra, 139 N.J. at 254. As in Nwobu, "[w]e cannot say that

such a decision could not have been reasonably made in this

setting." Ibid.

Affirmed.

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