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NOT FOR PUBLICATION WITHOUT THE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-5302-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.M.,
Defendant-Appellant.
________________________________
Submitted October 10, 2017 – Decided October 18, 2017
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-10-1391.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant G.M.1 appeals the trial court's February 29, 2016
order upholding the prosecutor's rejection of her application for
admission to the pretrial intervention ("PTI") program, and her
ensuing conviction of fourth-degree child abuse or neglect,
N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. Applying the strong judicial
deference required in reviewing such prosecutorial denials, we
affirm.
Defendant is the mother of a young son, I.L. The child's
father is H.L., who was a co-defendant with G.M. in this
prosecution.
The charges against I.L.'s parents arose out of a situation
of child endangerment that occurred on March 13 and 14, 2015, when
their infant was then nine months old. According to the State's
investigation, H.L. was at the parties' residence playing with the
child on the bed at around 4:30 p.m. when he received a Netflix
notification on his cell phone. When H.L. reached for the phone,
the infant fell off the bed. G.M., who was in another room, heard
a bang and H.L. called out to her that the infant had fallen.
According to the parents, they did not immediately notice any
bump on the child's head. The parents then went out together as
H.L. performed his job delivering pizzas, bringing the infant
1
We use initials to protect the privacy and identity of G.M.'s
minor child.
2 A-5302-15T2
along with them. H.L. admitted that he smoked marijuana during
one of his delivery stops that evening.
Around 10:30 p.m., the parents noticed that the infant was
exhibiting a bump on his head. The parents at that point decided
to take the child to Jersey City Medical Center. G.M. allowed
H.L. to drive with the infant in the car, even though the State
contends she had seen him smoking marijuana.
As reflected on the hospital's surveillance video, the
parents did not arrive at the Jersey City Medical Center until
almost midnight, more than an hour after they noticed the infant's
swollen head. According to the parents, they left the Jersey City
Medical Center because they felt the infant was not being seen
there in a timely manner. They then drove to Hoboken Hospital.
Along the way, the couple stopped so that H.L. could sell his
marijuana to a friend. They did so because H.L. realized that
they would be reported to the Division of Child Protection and
Permanency ("the Division") if they were found in possession of
marijuana at the hospital.
When the infant ultimately arrived at Hoboken Hospital, he
was diagnosed with a skull fracture, internal bleeding, and an
epidural hematoma. The child had emergency surgery. Meanwhile,
the Division was notified. During ensuing interviews, both parents
3 A-5302-15T2
admitted that they had smoked marijuana, although G.M. only
admitted having done so on the day before the infant's fall.
The State charged both parents as co-defendants with various
offenses in a single indictment. G.M. was charged with two counts
of second-degree endangering the welfare of a child, N.J.S.A.
2C:24-4(a) (counts six and ten), and two counts of fourth-degree
child abuse or neglect, N.J.S.A. 9:6-1 and 9:6-3 (counts seven and
eleven).
G.M., who has no prior criminal record, applied for admission
to PTI. Although the court's assistant division manager
recommended G.M.'s admission to the program, the prosecutor
rejected her application. In a two-page rejection letter, which
he later amplified in his brief to the trial court, the prosecutor
stressed several points. Among other things, the prosecutor noted
the serious nature of the infant's skull fracture; G.M.'s
acquiescence in allowing H.L. to drive the infant around, despite
her awareness that he had been smoking marijuana and was under the
influence; the couple's delay in bringing the child to the
hospital, including the stop to make a drug transaction; and the
fact that co-defendant H.L.'s case was still open when G.M. applied
for PTI.
G.M. filed a motion with the trial court seeking to set aside
the prosecutor's rejection of her PTI application. After
4 A-5302-15T2
considering the parties' written submissions and oral argument,
the trial judge denied the motion. The judge frankly acknowledged
that although he might personally have approved PTI for G.M., he
was not persuaded on the record presented that the State's denial
amounted to a "patent [and gross] abuse" of the prosecutor's
discretion. See State v. K.S., 220 N.J. 190, 199-200 (2015)
(reaffirming the scope of review applicable to prosecutor denials
of PTI).
Following the trial court's ruling, G.M. negotiated a guilty
plea to the fourth-degree charge of child abuse or neglect set
forth in count eleven of the indictment. The other charges were
dismissed. She was sentenced to a period of two years of
probation, consistent with the terms of the plea agreement. The
plea agreement preserved G.M.'s right to reapply for PTI and, by
inference, the present appeal of the court's PTI ruling.
On appeal, G.M. makes the following singular argument in her
brief:
POINT I
THE PROSECUTOR'S REJECTION OF [G.M.'S]
APPLICATION TO BE ADMITTED INTO PTI
CONSTITUTED A PATENT AND GROSS ABUSE OF
DISCRETION.
Like the trial judge, we must be mindful that the Judiciary's
authority to second-guess prosecutorial decisions on PTI admission
5 A-5302-15T2
is extremely narrow. Given "the close relationship of the PTI
program to the prosecutor's charging authority, courts allow
prosecutors wide latitude in deciding whom to divert into the PTI
program and whom to prosecute through a traditional trial." State
v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J.
236, 246 (1995)). This deference to the prosecutor has been
described as "'enhanced' or 'extra'" in nature. Ibid. (citing
State v. Baynes, 148 N.J. 434, 443-44 (1997)).
It is well settled that the scope of judicial review of a
prosecutor's objection to a defendant's admission into PTI is
severely limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246;
State v. Hermann, 80 N.J. 122, 128 (1979). As the Court observed
in Negran, judicial review of PTI denials "serves to check only
the 'most egregious examples of injustice and unfairness.'"
Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J.
360, 384 (1977)); State v. DeMarco, 107 N.J. 562, 566 (1987).
In accordance with these principles, a defendant seeking to
overcome a prosecutorial veto of PTI admission must "'clearly and
convincingly establish that the prosecutor's refusal to sanction
admission into a PTI program was based on a patent and gross abuse
of his discretion' before a court can suspend criminal proceedings
under Rule 3:28 without prosecutorial consent." Negran, supra,
178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246). See also
6 A-5302-15T2
K.S., supra, 220 N.J. at 199-200 (reaffirming a defendant's "clear
and convincing" burden to show a "patent and gross abuse" of a
prosecutor's discretion in denying PTI).
We agree with the trial court's assessment that G.M. has
failed to surmount this "clear and convincing" burden here.
Although the fact pattern suggests that the father, H.L., was more
culpable then G.M. in placing the infant at risk, the overall
sequence of events is one in which the prosecutor had ample
justification to decline G.M.'s PTI application, despite her lack
of a prior criminal record. We further note that counts six and
ten of the indictment charged G.M. with the second-degree offense
of child endangerment, a level of offense severity which triggers
a presumption against admission into PTI. See Pressler & Verniero,
Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1291 (2018);
see also State v. Waters, 439 N.J. Super. 215, 226 (App. Div.
2015). That presumption was not clearly overcome here.
Affirmed.
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