STATE OF NEW JERSEY v. ANHEL CARRILLO (2013)

Defendant Anhel Carrillo appeals from the denial of his application for entry into a Pre–Trial Intervention (PTI) program.   We affirm.

I.

The record discloses the following facts and procedural history leading to the determination under review.

On February 26, 2008, Hunterdon County Indictment No. 09–02–0077 was filed charging defendant with one count of third-degree causing death while driving unlicensed, contrary to N.J.S.A. 2C:40–22;  two counts of third-degree tampering with public records or information, contrary to N.J.S.A. 2C:28–7(a)(1) or (2);  and two counts of fourth-degree falsifying or tampering with records, contrary to N.J.S.A. 2C:21–4(a).

On April 2, 2008, the Criminal Division Manager of Hunterdon County PTI did not recommend defendant's application to PTI. On January 8, 2009, Judge Mahon granted defendant's motion to dismiss the causing death while driving unlicensed count, and also defendant's motion for a change of venue, transferring venue to Mercer County.   As a result of the dismissal, defendant was permitted to reapply to PTI. However, the Mercer County Assistant Division Manager rejected defendant's application.   The reasons given for the rejection included that even though the charge was dismissed, “we can not overlook the fact that a death did occur and it is a factor to consider.   Your decision and affirmative actions to fraudulently obtain driving credentials enabled you to drive on the road which had fatal results.”

Defendant appealed.   He argued that State v. Brooks, 175 N.J. 215 (2002), allowed consideration of dismissed charges solely for the limited purpose of determining whether those charges should have deterred him from committing a subsequent offense, and should not have been considered in rejecting his application.   The State contended that Brooks permitted it to consider the fatality as part of the case, and but for defendant's fraudulent license, the fatality would not have occurred.

Judge Gerald Council denied defendant's appeal setting forth his reasons in an oral opinion.   The judge determined that the PTI coordinator “appropriately considered the total circumstances in arriving at the conclusion.   That the defendant lacks the rehabilitative qualities that suggested he would be amenable to pretrial intervention treatment.”   The judge noted that the record demonstrated defendant's lack of truthfulness on numerous occasions.   He concluded by stating, “[a]nd quite frankly, I'm satisfied that the coordinator and the State have legitimate and sufficient reasons to deny defendant's application to PTI.”

Thereafter, before Judge Robert Billmeier, defendant entered a conditional plea of guilty pursuant to Rule 3:9–3(f), to two counts of third-degree tampering with public records, N.J.S.A. 2C:28–7(a)(1);  the motor vehicle offenses of unlicensed driver, N.J.S.A. 39:3–10;  and failure to keep right, N.J.S.A. 39:4–82.   Defendant was sentenced to two concurrent terms of probation, and community service.   Appropriate fines and penalties were also imposed.   Defendant appealed.

II.

Defendant submits a single point for our consideration.

POINT I

THE TRIAL COURT ERRED WHEN IT AFFIRMED THE PROSECUTOR'S DENIAL OF DEFENDANT'S ADMISSION TO PTI AS THE DENIAL WAS BASED ON INAPPROPRIATE FACTORS AND FAILURE TO CONSIDER ALL RELEVANT FACTORS.

Defendant argues the prosecutor abused his discretion when he denied his application to participate in the PTI program.   He contends the prosecutor's decision was based primarily on inappropriate factors and failure to consider all relevant factors.   Further, he asserts that Judge Council misapplied the Court's guidance in Brooks.   We disagree.

PTI is “a discretionary program diverting criminal defendants from formal prosecution.”  State v. Caliguiri, 158 N.J. 28, 35 (1999).  “The purposes, goals, and considerations relevant to PTI are found at N.J.S.A. 2C:43–12, and in Rule 3:28.”  Brooks, supra, 175 N.J. at 223.   The Supreme Court formally adopted Guidelines For Operation of Pretrial Intervention in New Jersey (Guidelines) on September 8, 1976.   Pressler & Verniero, Current N.J. Court Rules, comments on R. 3:28 (2012).   The Guidelines are not mandatory.   State v. Leonardis (Leonardis I ), 71 N.J. 85, 111 (1976).   Rather, they embody the considerations delineated in N.J.S.A. 2C:43–12(e).  Brooks, supra, 175 N.J. at 224.

A prosecutor's review of an offender's application for PTI must be informed by certain principles.   First, “PTI decisions are ‘primarily individualistic in nature’ and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation.”  State v. Nwobu, 139 N.J. 236, 255 (1995) (quoting State v. Sutton, 80 N.J. 110, 119 (1979));  see also N.J.S.A. 2C:43–12(b) (“Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense.”).   Second, the State's determination, grounded on the specific facts presented, must be guided by the relevant factors set forth in the statute, N.J.S.A. 2C:43–12(e), and described in the Guidelines accompanying Rule 3:28.   Pressler & Verniero, supra, Current N.J. Court Rules, comments on R. 3:28 Guideline 3.

Generally, the scope of a trial court's review of the State's decision to reject a PTI application is “ ‘severely limited,’ ” Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J.Super. 106, 111 (App.Div.1993)), as the initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting “whom to prosecute and whom to divert to an alternative program, such as PTI.” State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Leonardis (Leonardis II ), 73 N.J. 360, 381 (1977)).   This decision is entitled to considerable deference.  Id. at 582–83;  State v. DeMarco, 107 N.J. 562, 566 (1987).   “In fact, the level of deference which is required is so high that it has been categorized as ‘enhanced deference’ or ‘extra deference.’ ”  Kraft, supra, 265 N.J.Super. at 111 (quoting DeMarco, supra, 107 N.J. at 566;  State v. Dalglish, 86 N.J. 503, 513–14 n.1 (1981)).

“Against this backdrop, it is quite clear that ‘a trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.’ ”  Id. at 112 (quoting State v. Von Smith, 177 N.J.Super. 203, 208 (App.Div.1980) (alterations in original)).   This applies even where the trial court disagrees with the prosecutor's decision, or finds it to be harsh.   See DeMarco, supra, 107 N.J. at 567.   Judicial interference must be reserved only for those cases where it is necessary to correct “the ‘most egregious examples of injustice and unfairness.’ ”  State v. Negran, 178 N.J. 73, 82, (2003) (quoting Leonardis II, supra, 73 N.J. at 384).

Even so, a prosecutor's discretion in such a matter is not “unbridled.”   Wallace, supra, 146 N.J. at 582.   A defendant attempting to overcome a prosecutorial veto must “clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion.”  Leonardis II, supra, 73 N.J. at 382.

If a rejected defendant can prove the State's decision:  “(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,” then an abuse of discretion would “[o]rdinarily ․ be manifest.”  State v. Bender, 80 N.J. 84, 93 (1979).   Thus, the State's decision must be “ ‘clearly unreasonable so as to shock the judicial conscience’ ” or “ ‘could not have reasonably been made upon a weighing of the relevant factors.’ ”  Nwobu, supra, 139 N.J. at 254 (quoting State v. Roth, 95 N.J. 334, 365–66 (1984)).

In the present appeal, defendant argues that the prosecutor improperly considered facts that formed the basis for the third-degree causing death while driving unlicensed charge even though that charge was dismissed prior to defendant's plea.   A similar issue arose in Brooks.   In that case, the police conducted a traffic stop of the defendant, a bail bondsman and private investigator.   During the course of that stop, the defendant was found to be carrying a loaded and unsecured .380 9mm handgun in his car.   Additionally, the remains of a marijuana cigar were discovered, along with an open can of beer.   The defendant was charged with unlawful possession of a handgun, in violation of N.J.S.A. 2C:39–5(b), and possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35–10(a)(4).   He was also issued a summons for speeding and for driving with an open container of alcohol in his car.   Brooks, supra, 175 N.J. at 220.

The defendant sought PTI, which was denied.   The prosecutor noted that defendant's juvenile history included five arrests between 1987 and 1988 on various charges including receipt of stolen property, truancy, burglary, and theft, which were eventually dismissed.   Additionally, the defendant's juvenile history disclosed the imposition of two probationary terms.   The first stemmed from charges of eluding, possession of a stolen vehicle, and motor vehicle theft.   The second was for trespass.   As an adult, the defendant had been arrested on two occasions, one of which involved possession of a weapon.   However, all charges had been dismissed.  Id. at 222.   Following denial of PTI, the defendant entered into a plea agreement pursuant to which he pleaded guilty to the handgun charge, and the prosecutor dropped the drug possession and open-container charges.   The right to appeal the denial of PTI was preserved.  Id. at 222.

An issue on appeal was the extent to which the prosecutor could consider the dismissed charge stemming from prior arrests in denying PTI. With respect to those charges, the Supreme Court held that it was proper for the prosecutor to consider those charges in the same fashion as a trial judge would when considering a record of arrests when sentencing a defendant.  Id. at 228–29.   Nonetheless, the Court limited the consideration given to such charges, holding:

Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment contained in an applicant's record.   Those aspects of a defendant's history, if considered at all, may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense.   Moreover, a prosecutor's or program director's written rejection of a given application must reflect only a proper consideration of such information.

[Id. at 229.]

In the present matter, defendant relies on this language in support of his position;  however, it is inapplicable because defendant had no prior record and there was no evidence from which to draw an inference as to whether prior arrests had operated to deter defendant from future criminal conduct.

In Brooks, in evaluating the denial of PTI, the Court also addressed the charges filed against the defendant in the matter on appeal and the extent to which the dismissed charges could be considered.   This analysis directly bears upon the current case.   The Court held:

The facts surrounding the gun, drug, and open-container charges formed an adequate basis to support the prosecutor's decision when considered in concert with other relevant factors found under the statue and Guidelines.   In that respect, we note that in evaluating an application a prosecutor or PTI director is not limited to the offenses formally contained in a plea agreement.   In that connection, those officials “may look beyond the plea to the actual facts when they are not in dispute, as it is the conduct not the charge [that] governs.”

[Id. at 230 (quoting State v. Imbriani, 280 N.J.Super. 304, 316 (Law Div.1994), aff'd, 291 N.J.Super.   171 (App.Div.1996)).]

Just as in Brooks, here, defendant did not contest his charge of driving with a fraudulent license and its fatal result.   We agree with the State that it was proper for the prosecutor to rely on those allegations as a basis for his decision, and it was likewise proper for the trial judge to regard those allegations, together with the other considerations he found, as a sufficient foundation for the prosecutor's determination to deny PTI.

Defendant cannot overcome the enhanced deference that we must accord to the decision of a prosecutor to admit or reject a person for participation in this diversionary program.   Although the serious nature of the fatality informed the decision of the prosecutor, the record does not suggest that he categorically denied the application due to that consideration.   See Caliguiri, supra, 158 N.J. at 43–44.   Rather, the record demonstrates that the prosecutor carefully evaluated all relevant factors, as well as defendant's role in the underlying events.   We agree that defendant did not “clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion.”  Leonardis II, supra, 73 N.J. at 382.

In short, we cannot hold that this is one of those rare “most egregious examples of injustice and unfairness.”  Negran, supra, 178 N.J. at 82.

Affirmed.

PER CURIAM