Victim cannot veto PTI
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
HANIYYAH ALI,
Defendant-Respondent.
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Argued January 10, 2017 – Decided
Before Judges Ostrer and Leone.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-08-2031.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
PER CURIAM
The State appeals
from the trial court's May 19, 2016, order compelling defendant's enrollment in
the Pretrial Intervention Program (PTI) over the prosecutor's objection. In an August 2015 Atlantic County indictment,
defendant, Haniyyah Ali, was originally charged with second-degree aggravated
assault involving serious bodily injury, N.J.S.A. 2C:12-1(b)(1);
third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A.
2C:39-4(d); and fourth-degree unlawful possession of a weapon, a knife, N.J.S.A.
2C:39-5(d).[1]
The State argues it did not engage in
a gross and patent abuse of discretion in denying PTI admission; therefore, the
State asks us to reverse the trial court's order and reinstate the denial of
PTI. Defendant asks us to affirm the
order. We shall do neither. Having considered the parties' arguments in
light of the record and applicable law, we reverse the trial court's order, but
we remand for reconsideration because the prosecutor may have applied a blanket
rule to deny PTI whenever a violent crime victim objects to admission. As a result, the prosecutor may have
disregarded relevant factors. See
State v. Baynes, 148 N.J. 434, 445 (1997). Under such circumstances, even if a patent
and gross abuse of discretion has not been established, a remand is
appropriate. See State v. K.S.,
220 N.J. 190, 200 (2015).
I.
When defendant
applied for PTI, she had no prior criminal convictions, or adjudications of
delinquency. This case was her first
contact with the criminal justice system.
She had overcome challenges of a disadvantaged youth and, before the
incident, was gainfully employed as a New Jersey Transit bus driver. Defendant was also a twenty-five-year-old
single mother of two children.
On June 9, 2015, after
working a ten-hour shift, defendant headed to an Atlantic City playground to
pick up her children. Her identical twin
sister had been watching them for the day.
As she approached the playground, a fight broke out involving her sister
and several other women, including the victim, K.H. K.H. knew
defendant and her sister because defendant's sister had a child with K.H.'s
brother. In the course of the
altercation, K.H. was stabbed near the
armpit, suffered a partially collapsed lung, and was hospitalized for three
days. According to a police report, the
stab wound was caused by a four-inch-long knife.
The State contends
defendant stabbed K.H. K.H. alleged that
after the fight initially stopped, defendant briefly returned to her vehicle,
then approached K.H. again, and struck her in the chest. Only later did K.H. realize she was stabbed.
Defendant disputes
the State's version of events. She
contends K.H. and her cohorts were the aggressors. She also contests the allegation that she
wielded a knife. The person who drove
with defendant to the playground certified that she never returned to the
vehicle during the altercation. According
to a police report, K.H. initially identified her assailant as the mother of
her brother's child — in other words, defendant's sister.
The criminal
division manager rejected defendant's PTI application. She cited the violent nature of the offense
charged, and Guideline 3(i). See Guidelines
for Operation of Pretrial Intervention in New Jersey (Guidelines), Pressler
& Verniero, Current N.J. Court Rules, Guideline 3(i) at 1235 (2017). She also noted the victim's opposition to
defendant's admission into PTI. She
acknowledged that defendant met "several factors for admission, including
having no prior criminal history and a consistent history of employment[.]" However, "[t]he facts of this case and
the wishes of the victim outweigh any benefits that would be realized through
diversion."
The prosecutor
concurred in the rejection. As did the
criminal division manager, the prosecutor focused on the nature of the offense
and the victim's opposition, which outweighed defendant's amenability to
rehabilitation. After citing factors one
(the nature of the offense), two (the facts of the case) and ten (whether the
crime was of an assaultive or violent nature), see N.J.S.A.
2C:43-12(e)(1), (2), (10), she concluded that the violent and assaultive nature
of the offense triggered a presumption of rejection:
[T]he matter was properly the subject of a presumptive
rejection in the offense was deliberately committed with violence or the threat
of violence against another person. The
defendant was indicted for an Aggravated Assault, second degree, Possession of
a Weapon for Unlawful Purpose, third degree and Unlawful Possession of a
Weapon, fourth degree.
The
prosecutor reviewed the facts of the incident from the State's perspective, and
then concluded:
The presumption against enrollment for crimes of violence
is appropriate in this case because the defendant used a deadly weapon to
inflict the victim's injuries. Crimes of
violence, especially [those] in which injury is inflicted by the use of a
deadly weapon, require the greater level of deterrence available through formal
criminal prosecution.
The
prosecutor acknowledged that defendant disputed the State's version of events,
but that did not affect her decision.
The defense denies the possession or use of a deadly weapon
by the defendant. The defense further
claims that the defendant was acting in self-defense and in defense of others
by protecting her sisters. If the
defendant truly believes that she did not stab the victim or was justified in
the use of force, then she should seek an acquittal at trial. PTI is an inappropriate forum for widely
divergent factual situations.
The prosecutor also relied on the victim's opposition, citing
factor 4, N.J.S.A. 2C:43-12(e)(4).
[T]he victim is opposed to the diversion of the
defendant. It is understandable that the
victim would be opposed given the injury that she sustained and her
hospitalization. The State is unwilling
to discount the victim's opposition by agreeing to diversion in this case.
Finally, citing factors 14 (whether the public need for prosecution
would outweigh the value of supervisory treatment), and 17 (whether the harm to
society from not prosecuting outweigh the benefits of diversion), see N.J.S.A.
2C:43-12(e)(14), (17), the prosecutor acknowledged, but found unavailing,
defendant's amenability to supervision and the benefits that would be achieved
through her admission:
[T]he nature of the offense, the facts of the case and the
strong need to deter this defendant and others similarly situated outweigh any
benefits that would be realized through diversion. The State has reviewed the materials
submitted by the defense on behalf of the defendant. The State recognizes that the defendant has
had gainful employment in the past, is the sole provider for her two children,
is remorseful and has no criminal history.
These factors may be relevant for sentencing but are not considered
compelling as to overcome the presumption of enrollment for crimes of
violence. The State is also aware that
the decision not to divert would negatively impact the defendant's chance to
reapply for her job. The State has
considered that impact, however, the need for specific and general deterrence
warrant formal criminal prosecution.
Defendant appealed to the Law
Division. Referring to the State's
brief, which is not before us, defense counsel argued the prosecutor gave undue
weight to the victim's preferences. The
assistant prosecutor — who was not the one who signed the rejection letter —
defended the State's reliance on the victim's views. She argued:
[O]n page six [of the State's brief] I write, the program
is intended for victimless offenses only.
And that's accurate. It is
intended for victimless offenses only.
There are times where aggravated assaults do get into PTI. However . . . those are . . . typically times
when the victim does consent to the entry.
The assistant prosecutor amplified her view that a victim's
opposition was controlling:
[W]hen the entire case focuses on a serious assault, of
course the victim has control. I mean,
if the victim doesn't want to come to court, doesn't want to have anything to
do with it, that's considered. If the
victim is in the hospital for a long period of time, is very aggrieved by the
situation, is out of work, is scared, is hurt, of course, we take that into
consideration. So, I think that it's not
really accurate to say that the victim shouldn't control the prosecution. In fact, they do and they're very involved.
The trial court granted defendant's appeal and ordered her
acceptance into PTI. In a written
decision, the judge rejected the State's contention that "the program is
intended for victimless offenses only."
The judge found that both the criminal division manager and the prosecutor
gave insufficient weight to the facts of the case. Closely analyzing the competing versions of
events, the court identified weaknesses in the State's proofs, noting the
possibility that the victim misidentified defendant as her assailant, as
opposed to her identical twin sister; the victim's bias against defendant and
her sister; and the lack of any other eyewitness to the stabbing. The court also highlighted the fact that
defendant's involvement in the altercation was unexpected; she became involved
to defend her sister and children; and the victim was not without fault, having
participated in the fight. The court
concluded the rejection was "arbitrary, unreasonable, and otherwise
capricious" based on the failure to "consider all of the salient
facts, combined with the Defendant's lack of propensity for
violence."
The State's appeal followed.
The State contends defendant failed to present evidence of
"extraordinary or unusual circumstances" that would compel overriding
the presumption against admission in cases of violent crime. The State also disavowed the views expressed
by the assistant prosecutor in oral argument, and asserted that they did not
affect the rejection set forth in the earlier letter that a different assistant
prosecutor signed. The State contended
that even if it failed to consider all relevant factors, a remand for
reconsideration, as opposed to an order compelling admission, was
appropriate.
Defendant contends the prosecutor's reliance on the victim's
opposition amounted to an unauthorized per se rule. She argues the trial court correctly found
that the prosecutor committed a patent and gross abuse of discretion in denying
her admission to PTI.
II.
We afford
prosecutors "broad discretion to determine if a defendant should be
diverted." K.S., supra,
220 N.J. at 199. Our scope of
review is "severely limited[,]" and addresses "only the most
egregious examples of injustice and unfairness." State v. Negran, 178 N.J. 73,
82 (2003) (internal quotation marks and citation omitted). "[T]o overturn a prosecutor's decision
to exclude a defendant from the program, the defendant must clearly and
convincingly show that the decision was a patent and gross abuse of . . .
discretion." K.S., supra,
220 N.J. at 200 (internal quotation marks and citation omitted).
However,
"[i]ssues concerning the propriety of the prosecutor's consideration of a
particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98,
104 (1979). "Consequently, on such
matters an appellate court is free to substitute its independent judgment for
that of the trial court or the prosecutor should it deem either to have been in
error." Id. at 105; see
also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995) ("A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference.").
A prosecutor must
set forth his or her reasons for rejecting a PTI candidate. State v. Nwobu, 139 N.J. 236,
248-49 (1995). A prosecutor "may
not simply 'parrot' the language of relevant statutes, rules, and
guidelines." Id. at
249. Among other purposes, a detailed
and defendant-specific statement of reasons enables a defendant to respond,
promotes confidence in the prosecutor's decision making, and facilitates
judicial review. Ibid.
The prosecutor may
not weigh inappropriate factors, or ignore appropriate factors. K.S., supra, 220 N.J. at
200. A PTI rejection "must reflect
only a proper consideration of the identified information . . . ." Id. at 198 (internal quotation marks
and citation omitted). Although the
facts of the case and the nature of the offense are appropriate considerations,
"the PTI process is not designed to assess the weight of the State's
case. '[T]he appropriate administration
of the program militates against basing enrollment upon the weight of the
evidence of guilt.'" Nwobu, supra,
139 N.J. at 252 (quoting State v. Smith, 92 N.J. 143, 147
(1983)).
A prosecutor is
not required to address each of the seventeen statutory criteria for
participation. See N.J.S.A.
2C:43-12(e)(1)-(17). A reviewing court
shall "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). However, a prosecutor may
not establish an inappropriate blanket or per se rule barring admission; doing
so means the prosecutor has failed to consider all relevant factors. See State v. Caliguiri, 158 N.J.
28, 44 (1999); see also Baynes, supra, 148 N.J. at
445.
Any defendant may
apply for PTI, but the Guidelines create a rebuttable presumption against
admission in cases involving certain crimes, including those "deliberately
committed with violence or threat of violence against another person[.]" Pressler & Verniero, supra, Guideline
3(i) at 1235. In such cases, "the
defendant's application should generally be rejected." Ibid.; see also Baynes,
148 N.J. at 442.
To neutralize such
a presumption, an applicant must demonstrate "extraordinary and unusual
circumstances." State v. Roseman,
221 N.J. 611, 663-24 (2015).
These may pertain to aspects of a defendant's background. Id. at 623 (citing Nwobu, supra,
139 N.J. at 252-53). But, the
facts of the case may also satisfy a showing of extraordinary and unusual
circumstances. See id. at
626-27 (finding the factual circumstances of the offense and the defendant's
own actions to report it "were sufficiently 'extraordinary and unusual' to
overcome the presumption against PTI for second-degree offenses").
In determining
whether extraordinary and unusual circumstances exist, a court must engage in a
"fact-sensitive analysis that requires consideration of 'idiosyncratic'
circumstances demonstrating that denial of PTI has resulted in a 'serious
injustice.'" Id. at 624
(quoting Nwobu, supra, 139 N.J. at 252). Furthermore, when the defendant is charged
with a third-degree offense, the Court has declared that the weight of evidence
required to rebut the presumption against PTI is not as great as if the defendant
faced a second-degree charge. Caliguiri,
supra, 158 N.J. at 44.
To meet the
"gross and patent abuse of discretion" standard to justify
supplanting the prosecutor's decision, a defendant must satisfy one of three
factors and must also show the prosecutor's decision undermines the purpose of
PTI:
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.
[State v. Bender, 80 N.J. 84, 93 (1979) (citation omitted).]
However, when a defendant has not
met this high standard, but nonetheless has demonstrated an abuse of discretion
— for example, the prosecutor considered inappropriate factors — a remand is
appropriate.
When a reviewing court determines
that the "prosecutor's decision was arbitrary, irrational, or
otherwise an abuse of discretion, but not a patent and gross abuse of
discretion," the reviewing court may remand to the prosecutor for further
consideration. Remand is the proper
remedy when, for example, the prosecutor considers inappropriate factors, or
fails to consider relevant factors.
[K.S., supra, 220 N.J. at 200 (quoting
State v. Dalglish, 86 N.J. 503, 509 (1981)).]
As the Court explained, this middle-ground preserves the opportunity
for the exercise of the prosecutor's discretion, while assuring that the PTI
standards are properly employed. Ibid.
III.
Applying these principles, we conclude
the trial court erred in compelling defendant's admission into PTI. The trial court appropriately reviewed the
prosecutor's consideration of the facts of the case. However, the court appeared to fault the
prosecutor for failing to consider the weaknesses in the State's case. The court focused on defendant's allegations
that she confronted a fight unexpectedly, the victim was a participant, and
defendant may have been motivated by a desire to protect her sister and
children. As noted, the PTI process is
not designed to assess the strength of the State's case.
The trial court also did not clearly
articulate whether "extraordinary and unusual circumstances" existed
to overcome the presumption against admission into PTI of persons charged with
deliberately violent offenses. Instead,
we are convinced the trial judge substituted his judgment for the prosecutor's,
which is inconsistent with the required deferential standard of review. See Wallace, supra, 146 N.J.
at 589 (reversing where "court essentially evaluated the case as if
it stood in the shoes of the prosecutor").
On the other hand, we are unconvinced
the prosecutor fairly considered all relevant factors. Our doubts are grounded in the assistant
prosecutor's remarks at oral argument — and, apparently, in her written
submission — that PTI is only appropriate for victimless crimes, or cases in
which the victim does not object. We
recognize that the views of the victim are relevant to the prosecutor's
decision. See N.J.S.A.
2C:43-12(e)(4); see also N.J. Const., art. I, para. 22 (stating
"A victim of a crime shall be treated with fairness, compassion and respect
by the criminal justice system."). And,
one goal of PTI is to divert defendants in cases of "victimless"
crimes. See Pressler &
Verniero, supra, Guideline 1(c) at 1233.
Yet, a per se rule granting victims a veto over her assailant's
admission into PTI is unauthorized by the statute or the Guidelines. The assistant prosecutor's statements raise
questions about whether the prosecutor considered, and gave due weight to other
relevant factors.
We cannot accept the State's argument
that the assistant prosecutor's statements were an unauthorized and mistaken
expression of prosecutor's office policy, and that they did not affect the
office's earlier written denial.
Apparently, the remarks were not impromptu, but repeated a point of view
that was expressed in the State's brief, which we presume received some level
of supervisory review. Although the
earlier, written rejection letter did not express a per se rule, we lack
confidence to conclude that such a rule was not at work. Rather, a remand is necessary for
reconsideration of defendant's application, free of any per se rule recognizing
a victim veto.
In reconsidering defendant's
application, the prosecutor should also engage in a fact-sensitive analysis as
to whether defendant has overcome the presumption against admission in a case
of deliberate violence. In determining
whether defendant presents extraordinary and unusual circumstances, the
prosecutor should, consistent with Roseman, consider not only
defendant's personal background, but the facts of the case. If the aggravated assault charge has already
been amended to a third-degree charge, the prosecutor should also be mindful
that defendant bears a lesser burden than she did when she faced a
second-degree charge.
Reversed
and remanded. We do not retain
jurisdiction.
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[1]
The trial judge stated that the aggravated assault charge was amended in
February 2016 to a third-degree charge.
However, the record is not entirely clear on that point, as it does not
include a conforming order, and the prosecutor stated in her April 2016
rejection letter that the prosecutor "may" amend the indicted charge
to a third-degree charge "for the purposes of a plea." On the other hand, the criminal division
manager's March 2016 rejection did not refer to the crime charged as one in the
first or second-degree range. Also, in
oral argument on the motion to compel admission to PTI, defense counsel
asserted, without contradiction, that the indictment was amended on the record
before a different judge. However, we
have not been provided with the transcript.
