Opinion
DOCKET NO. A-0205-11T3
07-02-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CORY JAMES HUNT, a/k/a CORY J. HUNT, Defendant-Appellant.
James M. Porfido, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-11-0291.
James M. Porfido, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Cory James Hunt appeals from his August 12, 2011 conviction of fourth-degree endangering the welfare of a child by possession of child pornography. N.J.S.A. 2C:24-4(b)(5)(b). He appeals specifically from a March 22, 2011 order denying his application for admittance into the Morris County Pretrial Intervention Program (PTI) based on the State's objection. Defendant maintains that the State's objection was a patent and gross abuse of discretion. After reviewing the record in light of the contentions advanced on appeal, we affirm and remand only to correct the statutory citation in the judgment of conviction (JOC).
The crime is mistakenly designated as the second-degree crime. N.J.S.A. 2C:24-4(b)(5)(a).
After receiving a tip from the National Center for Missing and Exploited Children, the New Jersey State Police Internet Crimes Against Children Task Force obtained a search warrant. Defendant, who was twenty years old, admitted to the police after receiving his Miranda warnings that he used a fictitious name to register his email address, and that he had uploaded pornographic images of children to his photobucket.com account. He transferred those images to his old computer so that he could give the newer computer to his father after deleting the children's images. He claimed he was sexually interested in "boys in the 'teen' group," but not in younger children.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
As described by the State in its PTI objection, one of the images defendant uploaded depicted "two naked young boys, both between approximately seven and ten years of age, engaged in mutual masturbation." Defendant's computer contained "approximately thirty still images and videos depicting young boys performing sex acts on themselves or other young boys," as well as "approximately one-thousand images of young boys scantily clothed, or completely nude but depicting only the upper half of their bodies." These images had been uploaded on various dates in 2008 and 2009.
Defendant retained psychologist Dr. Anthony V. D'Urso to perform a psychosexual evaluation. Dr. D'Urso determined that defendant had been diagnosed with various learning and psychological issues, for which he was receiving treatment. Without having seen the State's discovery, Dr. D'Urso recommended further treatment and opined that defendant does not appear likely "to engage in recidivistic behavior relative to child pornography[.]"
Dr. D'Urso also submitted a supplemental report after receiving more information to determine whether "the large number of legal and non-suggestive sexually [sic] pictures [defendant] downloaded represents a masked fetish to young boys or any preoccupation that would target such young victims if he were to be frustrated in his attempt to develop agemate relationships." Dr. D'Urso opined that defendant's "sexual orientation is primarily to adult agemates."
Defendant also submitted a letter from his treating psychologist opining that defendant was not "a danger to himself or others."
The PTI program recommended defendant for enrollment. The State objected to defendant's participation in PTI by letter referring to specific aspects of the evidence and based on statutory factors (1), "[t]he nature of the offense," (6), "[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," and (14), "[w]hether the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution." N.J.S.A. 2C:43-12(e)(1), (6) and (14). At the hearing the State also relied on factor (2), "[t]he facts of the case." N.J.S.A. 2C:43-12(e)(2).
The State indicated the program did not have the discovery, but accepted defendant's statement that the basis of the charge was that, on one occasion, he received 100 images from a friend that included "about ten images of ten- or eleven-year-olds engaged in sexual acts," as well as defendant's statement "that he is not interested in child porn."
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Based on defendant's expert opinions, the judge gave little weight to the State's conclusion under factor (6) that defendant's "well demonstrated sexual attraction to young boys will likely never change." However, the judge accepted the other reasons proffered by the State and denied defendant admission to PTI. Defendant then entered a plea of guilty to the one-count indictment and was sentenced to probation for three years with an additional condition that his internet usage be limited to work and school purposes only, without social networking. Additionally, defendant is not permitted to have unsupervised contact with children under sixteen years of age and must continue psychological counseling, forfeit the computers seized by law enforcement, submit a DNA sample and pay the required fines and penalties.
On appeal, defendant raises the following issue:
BECAUSE THE STATE REFUSED TO SERIOUSLY CONSIDER THE TWO EVALUATIONS RECOMMENDED BY THE DEFENDANT'S EXPERTS, PRESENTED NO EXPERTS OF IT'S OWN, AND THE STATE'S EVALUATION CONTAINED NO INDIVIDUALIZED EVALUATION, THE REJECTION OF DEFENDANT'S APPLICATION FOR ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM WAS A PATENT AND GROSS ABUSE OF DISCRETION AND MUST BE REVERSED.
Initially, we note that "courts allow prosecutors wide latitude in deciding whom to divert into the PTI Program and whom to prosecute through a traditional trial. The deference has been categorized as 'enhanced' or 'extra' in nature." State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)) (internal citations omitted). A prosecutor's decision rejecting a PTI application "rarely will be overturned." State v. Kraft, 2 65 N.J. Super. 106, 111 (App. Div. 1993) (citations omitted).
To overturn a prosecutor's rejection of PTI, a defendant "must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007) (citations omitted). The Supreme Court has defined a patent and gross abuse of discretion as "more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" State v. Wallace, 146 N.J. 576, 582-83 (1996) (quoting State v. Ridgway, 208 N.J. Super. 118, 130 (Law Div. 1985)). To prevail on such a contention, a defendant "must show that the prosecutor'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.'" Watkins, supra, 390 N.J. Super. at 306 (quoting Negran, supra, 178 N.J. at 83)
We conclude that defendant failed to establish that the State's decision denying him admission into PTI clearly and convincingly constituted a "patent and gross abuse of discretion" and affirm substantially for the reasons expressed by Judge Ironson in his February 28, 2011 oral decision.
Affirmed and remanded to correct the statutory error in the JOC.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION