Opinion
A-2249-20
03-15-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EBONY I. REED, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Scott M. Welfel, Assistant Deputy Public Defender, of counsel and on the brief). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief; Christopher J. Ammon, Assistant Prosecutor, on the brief).
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.
Submitted January 18, 2023
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 19-111505.
Joseph E. Krakora, Public Defender, attorney for appellant (Scott M. Welfel, Assistant Deputy Public Defender, of counsel and on the brief).
Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief; Christopher J. Ammon, Assistant Prosecutor, on the brief).
Before Judges Messano and Gilson.
PER CURIAM
Defendant Ebony Reed was charged with aggravated assault after she hit and stabbed a victim. She appeals from an order denying her motion to compel her admission into the Pretrial Intervention Program (PTI) over the prosecutor's objection. Because the Law Division correctly determined that the prosecutor's decision was not a patent and gross abuse of discretion, we affirm.
I.
The charges against defendant arose out of altercations she had with the victim, S.R. (Susan). On July 29, 2019, police officers received a call reporting that the tires of Susan's car had been slashed. When the officers responded, Susan informed them that she believed defendant was responsible because defendant was unhappy about Susan spending time with defendant's former boyfriend, who is also the father of one of defendant's children. The officers obtained surveillance video that captured defendant slashing the tires of Susan's car.
We use initials and a fictitious name to protect the privacy interests of the victim.
Later that evening, Susan called the police and reported that she had been physically assaulted by defendant in a parking lot. When police officers responded, they observed that Susan had a large bump on her forehead and a one-half inch wide stab wound on her right forearm. Susan told the officers that she had been inside her vehicle when defendant approached, opened her passenger side door, and hit and stabbed her. With permission, the officers searched Susan's car and found a knife with dried blood on it. Susan explained that she had placed the knife in her car for protection after defendant slashed her tires.
The following day, on July 30, 2019, police officers located defendant who was wearing a blood-stained shirt that was ripped from the neck seam down to the top of her stomach. The officers arrested defendant and she was interrogated by a detective. During the interrogation, defendant admitted that she had slashed Susan's tires and physically assaulted Susan. Defendant denied, however, that she had stabbed Susan. When asked if she had used a weapon to assault Susan, defendant replied: "Maybe I used a bottle, I don't know." Defendant now maintains that her response was sarcastic because she thought the detective jokingly asked her that question.
A grand jury indicted defendant for six crimes: third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
Thereafter, defendant applied for admission into PTI. In a letter dated March 17, 2020, the Monmouth County Prosecutor's Office rejected defendant's application and explained the reasons for that decision. In the letter, an assistant prosecutor explained that she had "thoroughly reviewed [defendant's] PTI application and relevant discovery," agreed with the PTI investigator's assessment, and identified six of the seventeen factors set forth in N.J.S.A. 2C:43-12(e) that weighed against admission. The prosecutor noted that defendant's criminal conduct was not an isolated incident and involved acts deliberately committed with violence. The prosecutor also considered defendant's "municipal-court history," which included two petty disorderly persons convictions, two disorderly persons convictions, and two ordinance convictions. The prosecutor then noted that "[t]he majority of [defendant's] charges are assaultive in nature and evidence a pattern of anti-social conduct."
The prosecutor did not explicitly analyze the remaining factors set forth in N.J.S.A. 2C:43-12(e). Nevertheless, the prosecutor explained that she had taken into consideration "the positive aspects of defendant's application, including that [defendant] is a single mother, gainfully employed, ultimately completed a ten-week [intensive outpatient program] through CPC Behavioral Healthcare, and is currently attending anger management counseling." The prosecutor determined, however, that these "positive aspects" did not "overcome the presumption against [defendant's] admission" and concluded that "the nature of the offense, facts of the case, and needs and interests of the victim and society make these assaultive crimes best suited for traditional prosecution."
In June 2020, defendant pled guilty to an amended charge of fourth-degree stalking, N.J.S.A. 2C:12-10(b). In pleading guilty, defendant reserved her right to appeal the prosecutor's rejection of her PTI application. In exchange for the plea, the State agreed to recommend a sentence of non-custodial probation.
Shortly after pleading guilty, defendant filed a motion with the Law Division challenging her rejection from PTI and seeking an order compelling her admission. A Law Division judge heard argument and, on August 14, 2020, denied defendant's motion on the record. The judge found that the prosecutor's rejection of defendant's PTI application was not arbitrary, capricious, or unreasonable and did not constitute a patent or gross abuse of discretion. On August 17, 2020, the judge entered an order memorializing her decision.
Thereafter, defendant was sentenced to one year of probation and the remaining counts of the indictment were dismissed. Subsequently, the court approved the State's application for a stalking restraining order that prohibits defendant from having contact with Susan. Defendant now appeals from the August 17, 2020 order denying her motion to compel her entry into PTI.
II.
On this appeal, defendant contends the prosecutor's rejection of her PTI application was an abuse of discretion, and she presents the following three arguments for our consideration:
[1.] The State's Rejection Of Defendant's PTI Application Was Not Premised On Consideration Of All Relevant Factors.
[2.] The State's Reliance On The Court Rule Presumption Against Admission For All Violent Offenses, Which Conflicts With The Statutory Presumption Against Only Offenses Involving Domestic Violence Offenses, Was Inappropriate.
[3.] The State's PTI Rejection Was Partially Based On Charges From Defendant's Criminal Record Of Which She Was Not Convicted, Violating State v. K.S.[, 220 N.J. 190 (2015)].
Having reviewed the record and the governing law, we reject defendant's arguments because they mischaracterize the prosecutor's reasons for denying defendant's PTI application and because there is no showing that the prosecutor patently abused her discretion. Accordingly, we affirm.
"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.'" State v. Oguta, 468 N.J.Super. 100, 107 (App. Div. 2021) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The program is governed by statute and court rule. See N.J.S.A. 2C:43-12; R. 3:28. "N.J.S.A. 2C:43-12(e) sets forth a list of seventeen nonexclusive factors that prosecutors must consider in connection with a PTI application." Oguta, 468 N.J.Super. at 107 (quoting State v. Johnson, 238 N.J. 119, 128 (2019)). Both the statute and the court rule call for prosecutors to consider the nature of the offense. See N.J.S.A. 2C:43-12(e)(1); R. 3:28-4(b)(1). "If the crime was . . . deliberately committed with violence or threat of violence against another person . . . the defendant's application should generally be rejected." R. 3:28-4(b)(1).
Deciding whether to permit diversion into PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). Accordingly, "prosecutors are granted broad discretion to determine if a defendant should be diverted" into PTI instead of being prosecuted. K.S., 220 N.J. at 199; see also State v. Negran, 178 N.J. 73, 82 (2003) (stating courts "allow prosecutors wide latitude in deciding whom to divert into . . . PTI"). Accordingly, "the scope of [judicial] review is severely limited." Negran, 178 N.J. at 82 (citing Nwobu, 139 N.J. at 246). "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." State v. Watkins, 390 N.J.Super. 302, 305 (App. Div. 2007). "A patent and gross abuse of discretion . . . '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."'" Id. at 306 (quoting Wallace, 146 N.J. at 582-83).
Defendant argues the prosecutor failed to assess all the factors set forth in N.J.S.A. 2C:43-12(e). In that regard, defendant asserts the prosecutor failed to consider defendant's struggle with anger management and her previously diagnosed alcohol-related disorder, as well as whether prosecution would exacerbate the social problems that led to defendant's charged criminal acts.
In her March 17, 2020 letter, the prosecutor explicitly stated that she thoroughly reviewed defendant's PTI application and relevant discovery, and agreed with the PTI investigator's assessment, which noted defendant's angermanagement issues and alcohol-related disorder. The prosecutor also stated she considered that defendant was attending anger-management counseling and had completed an intensive outpatient program. Despite those statements, defendant argues the prosecutor should have provided an explicit analysis of these facts as they pertained to some of the factors set forth in N.J.S.A. 2C:43-12(e).
A prosecutor is not, however, required to "provide a defendant with a detailed report outlining every step taken en route to his [or her] decision." State v. Waters, 439 N.J.Super. 215, 234 (App. Div. 2015) (quoting State v. Sutton, 80 N.J. 110, 117 (1979)). "At a minimum, the prosecutor 'should note the factors present in defendant's background or the offense purportedly committed which led [the prosecutor] to conclude that admission should be denied.'" Ibid. (alteration in original) (quoting Nwobu, 139 N.J. at 249). Here, the prosecutor met that minimum by stating the reasons why defendant's application was rejected with enough "specificity so that defendant ha[d] a meaningful opportunity to demonstrate that they are unfounded." Nwobu, 139 N.J. at 249 (quoting State v. Maddocks, 80 N.J. 98, 109 (1979)).
Defendant also argues the prosecutor improperly considered her municipal-court history by mistakenly concluding it included "charges [that] are assaultive in nature." According to defendant, the prosecutor should not have considered defendant's previous simple assault charges because she was never convicted of those charges; rather, she had pled guilty to lesser offenses. In support of that contention, defendant cites K.S., in which our Supreme Court determined a "prosecutor . . . may not infer guilt from the sole fact that a defendant was charged, where the charges were dismissed." 220 N.J. at 199.
We reject this argument as a misreading of the prosecutor's letter. In pertinent part, the prosecutor stated: "Finally, [defendant's] municipal-court history cannot be ignored. N.J.S.A. 2C:43-12(e)(8). [Defendant] has two petty disorderly person's convictions, two disorderly person's convictions and two ordinance convictions. The majority of [defendant's] charges are assaultive in nature and evidence a pattern of anti-social conduct. "We do not read the last sentence as referring to the municipal-court convictions; the sentence refers to "charges." Further, the sentence does not refer to "simple assault" charges. Indeed, defendant's prior simple assault charges do not comprise the "majority," of her municipal-court history. Accordingly, we read the sentence as discussing defendant's current charges, including the aggravated assault and weapons charges. We cannot say that the prosecutor abused her discretion in concluding that those charges, together with the municipal-court convictions, evidence a pattern of anti-social behavior.
Moreover, the prosecutor did not rely on defendant's previous simple assault charges in concluding that defendant exhibited a pattern of anti-social conduct. Instead, the prosecutor considered defendant's disorderly persons convictions, which our Supreme Court has held a prosecutor may consider in determining an applicant's suitability for PTI. See K.S., 220 N.J. at 201; Negran, 178 N.J. at 84. Consequently, this case is unlike K.S. because defendant does have prior municipal-court convictions. See K.S., 220 N.J. at 202 (explaining that K.S. had no criminal record to consider because all his prior charges had been dismissed). In short, we discern no abuse of discretion in the prosecutor's consideration of defendant's municipal-court history.
Finally, defendant argues the prosecutor impermissibly relied on Rule 3:28-4(b)(1), which provides that there is a presumption against admission into PTI for a defendant who deliberately commits a crime with violence or threat of violence. Defendant asserts that Rule has been preempted by N.J.S.A. 2C:43-12(b)(2)(b), which provides that there is a presumption against admission for defendants who are charged with domestic violence offenses under certain circumstances.
Initially, we note that the record does not clearly reflect that defendant raised this argument before the motion judge. Accordingly, we could decline to consider this argument. See State v. Robinson, 200 N.J. 1, 20-22 (2009). Nevertheless, because the argument has no merit we consider and reject it.
In State v. Lee, we determined there is no "direct and inevitable conflict" or "irreconcilable difference" between "the PTI court rule and the PTI statue" that makes applying their respective provisions unworkable. 437 N.J.Super. 555, 564-65 (App. Div. 2014). In support of that conclusion, we noted the Legislature's failure to repudiate any of the provisions in Rule 3:28 and that PTI had been governed by Rule 3:28 and N.J.S.A. 2C:43-12 "[f]or nearly three decades." Id. at 563-64.
Since Lee, the Legislature amended N.J.S.A. 2C:43-12 to include a presumption against admission for defendants that commit domestic violence offenses in certain circumstances. See L. 2015, c. 98 § 4; N.J.S.A. 2C:43-12(b)(2)(b). Defendant contends this amendment evinces an intent by the Legislature to limit the presumption against admission to defendants that are charged with domestic violence offenses, rather than to defendants that are charged with a crime of violence or threat of violence as provided in Rule 3:28-4(b)(1).
In making that argument, defendant misreads N.J.S.A. 2C:43-12. As amended, the statute does not state that the presumption against admission applies only to defendants that are charged with domestic violence offenses. N.J.S.A. 2C:43-12(b)(2)(b). Rather, the statute states the presumption applies to defendants charged with a domestic violence offense in certain circumstances, without limiting or excluding the presumption's application to defendants charged with other violent offenses as provided in the Rule 3:28-4(b)(1). Ibid. Moreover, nothing in the legislative history to L. 2015, c. 98 suggests the Legislature intended to eliminate Rule 3:28-4(b)(1). The Legislature, fully aware of the Rule, could have expressly limited its application if it had intended to do so when amending N.J.S.A. 2C:43-12. And while there is some overlap between Rule 3:28-4(b)(1) and N.J.S.A. 2C:43-12(b)(2)(b), there is still no "direct and inevitable conflict" or "irreconcilable difference" between the two that makes applying their provisions unworkable. See Lee, 437 N.J.Super. at 564-65.
Defendant alternatively argues that we should still find the prosecutor impermissibly relied on Rule 3:28-4(b)(1) because the prosecutor treated the prescribed presumption as a mandate. In support of that argument, defendant points to the part of the March 17, 2020 letter that states "[t]he law mandates general rejection of . . . applications" like defendant's.
This is another mischaracterization of the prosecutor's letter. Defendant ignores the portion of the letter in which the prosecutor explicitly stated that defendant's application failed to "overcome the presumption against admission." When read in context, in writing "[t]he law mandates general rejection," the prosecutor was paraphrasing Rule 3:28-4(b)(1), which states, in relevant part, that applications involving crimes "deliberately committed with violence or threat of violence . . . should generally be rejected." (Emphasis added). Moreover, because the prosecutor identified other factors that weighed against defendant's admission into PTI, she did not treat the presumption in Rule 3:28-4(b)(1) as a per se bar.
Affirmed.