NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3906-11T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, October 27, 2014 v. APPELLATE DIVISION

JUSTIN A. LEE,

Defendant-Appellant. ________________________________

Submitted September 22, 2014 - Decided October 27, 2014

Before Judges Sabatino, Guadagno, and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2276.

Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

Defendant Justin A. Lee applied for admission to the pretrial

intervention ("PTI") program after he was charged with two counts

of aggravated assault with respect to a police officer and resisting arrest.1 His application was rejected by the Essex

County Prosecutor, despite having a positive recommendation by the

Judiciary's PTI program director. The trial court initially

remanded the matter to the prosecutor for reconsideration, which

resulted in the prosecutor abiding by her original decision to

deny PTI and providing amplified written reasons for the denial.

After hearing further oral argument, the trial court ultimately

deferred to the prosecutor's discretion and upheld the PTI denial.

On appeal, defendant raises several novel legal arguments

that he did not raise in the trial court. In particular, he

contends that PTI Guideline 3(i) in Rule 3:28, which expresses a

presumption against PTI where the defendant's offense was

"deliberately committed with violence or threat of violence

against another person," is inconsistent with and preempted by the

PTI statute, N.J.S.A. 2C:43-12(e). Defendant further contends,

as a matter of first impression, that because he disputed the

police officers' factual account of the incident and provided

written eyewitness statements supporting his competing version,

the judge reviewing the PTI denial was obligated to address the

discrepancy by conducting an evidentiary hearing. Defendant also

argues that the PTI denial in this case must be reversed because

1 The indictment also named a co-defendant, who is not a party to this appeal, and charged him with different crimes. 2 A-3906-11T4 the prosecutor engaged in a "patent and gross abuse of discretion."

State in re V.A.,

(2012). For the reasons that

follow, we affirm.

I.

The record indicates that defendant was on the streets of

Bloomfield at about 7:40 p.m. on April 29, 2010, when approximately

thirty young men and women were taking part in or observing a

melee. During the course of the melee, a young woman was stabbed

with a knife, although it is not alleged that defendant himself

owned or held the knife at any point. Police officers responded

to the scene. Defendant attempted to walk away. He did not heed

warnings from the officers directing him to stand with several

other persons up against a fence.

Although the facts at this critical point in the chronology

are disputed, it appears that several officers and defendant then

engaged in a struggle, leading to one of the officers sustaining

a broken nose. The police maintain that defendant deliberately

struck the officer's nose with the back of his head. Conversely,

defendant contends that one of the officers pulled him back by his

dreadlocks, causing his head to bash into that officer's nose.

In support of his version of the facts, defendant presented

notarized typed statements from two alleged eyewitnesses, as well

as his own signed handwritten statement. The eyewitnesses both

3 A-3906-11T4 stated that defendant had been approached by the police from behind

after he had failed to respond to the police officers' commands.

However, neither eyewitness explicitly confirmed defendant's

central claim that the police officer's broken nose had been self-

inflicted.

At the time of the incident, defendant was twenty years old.

He is a high school graduate, employed, and apparently not

affiliated with any gangs. He has no prior adult convictions.

After being charged in the indictment, defendant applied for

PTI. As we have already noted, the court's PTI program director

recommended him for admission. Even so, the county prosecutor

denied his PTI application in a January 14, 2011 letter. That

initial denial letter mainly focused on the violent nature of

defendant's alleged conduct in resisting the police at the scene

and in injuring an officer. In particular, the prosecutor relied

on PTI Guideline 3(i), which prescribes that "[i]f the crime was

. . . deliberately committed with violence or threat of violence

against another person[,] . . . the defendant's application should

generally be rejected." See Guidelines for Operation of PTI in

New Jersey, Pressler & Verniero, Current N.J. Court Rules,

Guideline 3(i) to R. 3:28 at 1169 (2015).

Defendant sought review of the initial PTI rejection by the

trial court. After oral argument, Judge Michelle Hollar-Gregory

4 A-3906-11T4 issued a letter opinion on May 6, 2011, remanding the PTI request

back to the prosecutor for reconsideration. In that letter

opinion, the judge found that the prosecutor's initial rejection

letter lacked the necessary specificity, and also did not

sufficiently discuss certain potential mitigating factors.

After reexamining the matter, the prosecutor reached the same

conclusion in a June 17, 2011 supplemental letter rejecting

defendant for PTI a second time. Once again, the prosecutor

stressed the violent nature of the street encounter and defendant's

refusal to heed the repeated commands of several officers.

Following additional argument, Judge Hollar-Gregory issued a

final ruling on October 25, 2011, upholding the prosecutor's denial

of PTI. In her oral decision, the judge observed that the

prosecutor had "addressed the concerns that this [c]ourt

[previously] had," concerning the previous PTI denial. The judge

also noted the statutory presumption in PTI Guideline 3(i), which

relates to cases of alleged violent conduct. On the whole, the

judge concluded that the prosecutor's rejection, as amplified in

her second letter, did not represent a "patent and gross abuse of

discretion."

Defendant subsequently entered into a plea agreement with the

State, automatically preserving through Rule 3:28(g) his right to

appeal the trial court's decision ratifying the PTI denial.

5 A-3906-11T4 Pursuant to the agreement, defendant pled guilty to third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), in exchange for the

dismissal of the assault charges and the State's recommendation

to have him receive a probationary sentence. The trial court

sentenced defendant to one year of probation, which presumably has

now been served.

II.

On appeal, defendant makes several legal arguments for the

first time concerning the applicable PTI standards and the process

for judicially reviewing a prosecutor's PTI determination. He

also contends that, given the particular factual circumstances

here, the prosecutor abused her discretion in denying him PTI.

More specifically, defendant raises these points in his

brief:

POINT I

SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES NOT PROVIDE FOR A PRESUMPTION AGAINST PTI ADMISSION BASED UPON A "VIOLENT" OFFENSE, GUIDELINE 3(i) OF [RULE] 3:28 IS PREEMPTED BY THE STATUTE AND IS INVALID. (not raised below)

POINT II

SINCE THE PROSECUTOR'S RECONSIDERATION DECISION STILL FAILED TO PROPERLY ASSESS RELEVANT PTI FACTORS – EVEN ASSUMING THE VIABILITY OF THE PRESUMPTION AGAINST ADMISSION, THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION AFFIRMING THE PTI DENIAL.

6 A-3906-11T4 POINT III

CONTRARY TO THE TRIAL COURT'S DECISION AFFIRMING THE PTI DENIAL, A COURT HAS AUTHORITY TO CONSIDER FACTUAL DISPUTES, ESPECIALLY IF THOSE DISPUTES ARE MATERIAL TO THE PTI DECISION.

POINT IV

SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES NOT DIFFERENTIATE BETWEEN THE AUTHORITY OF THE "PROGRAM DIRECTOR" AND THE PROSECUTOR IN MAKING PTI ASSESSMENTS, THE STANDARD OF REVIEW OF A PROSECUTORIAL VETO OVER THE PROGRAM DIRECTOR'S GRANT OF ADMISSION SHOULD BE AN "ABUSE OF DISCRETION" STANDARD, RATHER THAN THAT OF "GROSS AND PATENT ABUSE OF DISCRETION." (not raised below)

Before commenting on these points2, we make several preliminary

observations. PTI is "a discretionary program diverting criminal

defendants from formal prosecution." State v. Caliguiri,

(1999). Admissions into PTI are governed both by statute,

N.J.S.A. 2C:43-12(a)–(j), and Guidelines accompanying a court

rule, R. 3:28. See Pressler & Verniero, supra, Guideline 1 to R.

3:28 at 1166-67.

Admission into PTI is "a quintessentially prosecutorial

function." State v. Wallace,

(1996). In

carrying out this function, prosecutors are guided by a number of

2 We shall discuss the points raised in a different order than presented in defendant's brief.

7 A-3906-11T4 different principles. Primarily, prosecutors are required to

consider the seventeen factors listed under N.J.S.A. 2C:43-12(e).3

"[U]nless and until a defendant demonstrates the contrary, our

judges must presume that all relevant factors were considered and

weighed prior to a prosecutorial veto." State v. Bender,

(1979).

As we have already noted, PTI Guideline 3(i) specifies that an

application for PTI should "generally be denied" in instances

where a defendant "deliberately commit[s]" an offense "with

violence or threat of violence against another person[.]" Pressler

3 The seventeen factors include, among other things:

(1) The nature of the offense; (2) The facts of the case; (3) The motivation and age of the defendant; . . . . (7) The needs and interests of the victim and society; . . . . (10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior; . . . . (14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution; . . . . ; and (17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

[N.J.S.A. 2C:43-12(e).]

8 A-3906-11T4 & Verniero, supra, Guideline 3(i) to R. 3:28 at 1169. In the

instances where what has been described as this "presumption"

against PTI applies, the applicant must show, as the Guidelines

instruct, "compelling reasons justifying the applicant's admission

and establishing that a decision against enrollment would be

arbitrary and unreasonable." Ibid. These compelling reasons must

consist of "something extraordinary or unusual, something

'idiosyncratic' in [the defendant's] background." State v. Nwobu,

(1995) (citation omitted).

The scope of judicial review of PTI decisions is "severely

limited[,]" and interference by reviewing courts is reserved for

those cases where needed "to check [] the 'most egregious examples

of injustice and unfairness.'" State v. Negran,

(2003) (quoting State v. Leonardis,

(1997)

("Leonardis II")). Thus, on appeal, this Court reviews PTI

decisions with "enhanced deference." State v. Brooks,

(2002). A defendant seeking to overturn rejection from

PTI must "clearly and convincingly establish" that the decision

rejecting his or her application was "a patent and gross abuse of

discretion." State v. Watkins,

(2008). If a

defendant rejected for PTI can prove that the denial "(a) was not

premised upon a consideration of all relevant factors, (b) was

based upon a consideration of irrelevant or inappropriate factors,

9 A-3906-11T4 or (c) amounted to a clear error in judgment[,]" then an abuse of

such discretion would "be manifest."

.

A.

As his first legal argument, defendant contends that the

presumption expressed in Guideline 3(i) to deny PTI in situations

of deliberate violence conflicts with the PTI statute, N.J.S.A.

2C:43-12(e).4 He asserts that the statute only makes the "nature

of the offense," see N.J.S.A. 2C:43-12(e)(1), and whether the

offense is of "an assaultive or violent nature," see N.J.S.A.

2C:43-12(e)(10), mere factors in the overall analysis having no

inherent greater importance than other factors. He argues that

the statute, in this sense, "preempts" the presumption against PTI

set forth in Guideline 3(i) for situations of deliberate violence.

We disagree.

There is no irreconcilable difference between the provisions

in the Guidelines and in the statute. The Guidelines are simply

an effort to articulate considerations that were later codified

in the statute. For nearly three decades, PTI has been governed

simultaneously by the Rule and the statute which "generally

4 Although this general point was not argued below, we choose to reach it, and other issues defendant failed to raise in the trial court, in our discretion. Nieder v. Royal Indem. Ins. Co.,

(1973). 10 A-3906-11T4 mirror[]" each other.

(quoting

). "[N]owhere does the statute

attempt to instruct the prosecutor on the relative weight to be

assigned [the] several criteria."

.

Although Guideline 3(i) sets forth a presumption, that

presumption can be overcome. Thus, while couched in terms of a

"presumption," the Guideline is not a mandate. Rather it is only

a vehicle to "elaborate[] upon statutory criteria," while still

vesting ultimate decision making authority in the prosecutor.

.

Defendant's reliance on State v. T.A.B.,

(Law Div. 1988), is inapposite. In T.A.B. there was a direct and

inevitable conflict between the PTI court rule and the PTI statute.

The rule provided that PTI should be limited to one year; the

statute extended the period to three.

. The Law Division held that there was an obvious

direct conflict in that instance and that the rule should yield.

Here, no such direct conflict is present. The presumption

in Guideline 3(i) is not irrebutable and may be surmounted by

offsetting considerations that favor a defendant's admission to

PTI.

11 A-3906-11T4 It is also significant that Guideline 3(i) and the seventeen

statutory criteria for PTI have coexisted for about thirty years.

Indeed, Rule 3:28 predates the PTI statute by about two years.

Compare Pressler & Verniero, supra, Guideline 3(i) to R. 3:28 at

1169 (approved on September 8, 1976), and N.J.S.A. 2C:43-12 (passed

in 1978 and effective September 1, 1979); see also The New Jersey

Code of Criminal Justice: Report on S. No. 738 before the S.

Judiciary Comm., 1978 Leg. (1978) (recognizing that "[p]retrial

intervention programs are currently operating in New Jersey

pursuant to court rule").

As a well-established principle of statutory interpretation,

"the legislative branch is presumed to be aware of judicial

constructions of statutory provisions." State v. Singleton,

, 180 (2012). Moreover, in the context of judicial

interpretation of existing statutes, such "legislative retention

of judicially construed language signals an agreement with the

language, as construed." State v. Fielding,

(App. Div. 1996); see also State v. Frye,

(2014) (recently applying this principle in the context of the

Legislature's presumed awareness of case law interpreting the DWI

statutes).

"There is a well-accepted principle that the practical

administrative construction of a statute over a period of years

12 A-3906-11T4 without interference by the [L]egislature is evidence of its

conformity with the legislative intent and should be given great

weight by the Courts." Body-Rite Repair Co. v. Dir., Div. of

Taxation,

(1982) (quoting Automatic

Merchandising Council v. Glaser,

(App.

Div. 1974)); see also A.Z. ex rel. B.Z. v. Higher Educ. Student

Assistance Auth.,

(App. Div. 2012) (same).

Here, the continued application of Guideline 3(i), which has

been in force, essentially unaltered, for decades, neither leads

to an absurd result nor frustrates the presumed legislative intent.

In effect, Guideline 3(i) does no more than "channel prosecutorial

discretion" in a manner that leaves the ultimate responsibility

on the prosecutor to "weigh the various factors and to reach a

determination."

. We recognize

that the Guidelines were initially adopted before the PTI statutory

factors were codified. Even so, the Legislature's failure to

repudiate Guideline 3(i) in its 1978 enactment, and its subsequent

inaction leaving the Guideline intact, provides some indication

that the Legislature does not perceive the Guideline to be

inconsistent with the statute.

Guideline 3(i) and the PTI statutory provisions have been in

place for decades without the disharmony alleged by defendant

being identified as a problem, let alone a recurring one. We

13 A-3906-11T4 discern no conflict between that Guideline and the overall

statutory framework.

B.

On a related theme, defendant also generically contends that

the judicial review standard of a "patent and gross abuse of

discretion," which the Supreme Court endorsed in Leonardis II,

supra, 73 N.J. at 381, in 1977, should be modified for situations

like the present one where the prosecutor has overridden a positive

recommendation from the PTI program director. The State responds

that it would usurp the prosecutor's Executive Branch powers to

require greater consideration of the views of a PTI program

director, who is employed by the Judicial Branch.

Without resolving this separation-of-powers question, we note

that defendant's request to not employ the highly deferential PTI

standard of review where the prosecutor's PTI decision disagrees

with the PTI program director's recommendation is, in essence, a

policy issue. That policy issue is for the Supreme Court and the

Legislature to evaluate in their respective policymaking roles.

It is beyond our role as an intermediate appellate court to decide

the policy issue. State v. Hill,

(App.

Div. 1976) (noting the limited functions of an intermediate

appellate court). There is nothing presently in the Guidelines,

the PTI statute, or the Supreme Court's case law dictating that

14 A-3906-11T4 greater deference must be accorded to a program director's

recommendation to approve a PTI application. We therefore decline

defendant's invitation to endorse this new principle.

C.

In another general argument, defendant contends that, in

certain rare cases, such as this one, the trial court should

conduct an evidentiary hearing where the underlying facts that

affect a defendant's suitability for PTI have been disputed. The

State opposes this contention, noting that if such hearings were

required they would have the undesirable capacity to convert PTI

rejections into "mini-trials."

We reject defendant's claim of entitlement to an evidentiary

hearing. As a practical matter, we agree with the State that

requiring such hearings, even in limited instances, will unduly

thwart the prosecutor's discretionary functions in deciding

whether to approve PTI for a particular defendant. Such fact-

finding excursions before the trial court also would delay and bog

down the efficient disposition of PTI applications and any related

plea negotiations that might be occurring. The hearings would

also force the State's fact witnesses to bear the burdens and

inconvenience of an additional testimonial appearance in the case

if PTI is not granted. We discern no constitutional or statutory

right to such an evidentiary hearing.

15 A-3906-11T4 This is not to suggest that, when reviewing a PTI application,

a prosecutor has the prerogative to completely disregard evidence

proffered by an applicant that bears upon the applicable factors

under the Guidelines and the PTI statute. Cf. State v. Hogan,

(1996) (analogously noting, in the context of grand

jury presentations, a prosecutor's responsibility to not overlook

evidence that is "clearly exculpatory" or that "directly negates

the guilt of the accused"). A prosecutor is certainly free to

disbelieve statements presented by defense witnesses and to

instead credit the anticipated contrary testimony of the State's

witnesses. Even so, the prosecutor should be expected, in the

appropriate exercise of his or her discretion over PTI that is

subject to judicial review, to examine all pertinent facts and

evidence presented bearing on the PTI criteria, including the

"nature of the offense," N.J.S.A. 2C:43-12(e)(1), and the "facts

of the case," N.J.S.A. 2C:43-12(e)(2).

If there is a question of credibility to be resolved

concerning the fact witnesses, the occasion for resolving that

question is at trial, not in a preliminary hearing before the

trial court when it is reviewing a prosecutor's PTI denial. See

(noting that "appropriate

administration of the [PTI] program militates against basing

enrollment upon the weight of the evidence of guilt" (citation

16 A-3906-11T4 omitted)). Nor should such a hearing be provided as a tactical

exercise for defense counsel to obtain testimony from the State's

witnesses that might be later used for impeachment purposes at a

future trial.5

In sum, we reject defendant's contention that the trial court

was obligated to conduct an evidentiary hearing to resolve whether

his own competing narrative of the events (and that of his two

proposed witnesses) is more credible than the version of the facts

provided by the police officers. We agree with the State that

such a "mini-trial" would not have been appropriate.

D.

Apart from these general legal arguments, defendant asserts

that the prosecutor's specific decision in this case to deny him

PTI was a "patent and gross abuse of discretion."

. We concur with the trial judge that defendant

has failed to sustain his heavy burden of establishing such an

extreme abuse of the prosecutor's prerogatives.

Despite defendant's alternative version of the facts, there

is ample evidence to support the presumption of PTI denial in

Guideline 3(i) for acts of "deliberate" violence. It is undisputed

that, at a minimum, some form of struggle between defendant and

5 We make this observation generically, as no such objective by defendant's counsel in this case is apparent from the record or the briefs. 17 A-3906-11T4 the police officers took place. The police officers asserted that

defendant assaulted them deliberately. Defendant asserted it was

accidental, but the prosecutor did not have to accept his claim.

The prosecutor could believe defendant's action was deliberate,

even though N.J.S.A. 2C:12-1(b)(5)(a), one of the charged offenses

at issue here, also encompasses knowing, reckless, and certain

negligent conduct. Moreover, the prosecutor's decision to deny

PTI cannot be invalidated by subsequent events, namely that

defendant later pled guilty only to resisting arrest with a

recommendation of probation.

Although defendant certainly has several mitigating factors

in his favor, including such things as his relative youth, his

lack of a prior criminal conviction, his high school education,

his employment, and his apparent lack of past violent behavior,

the prosecutor sufficiently took those positive traits into

account in weighing the PTI criteria. The prosecutor also was

entitled to consider, on the other side of the ledger, the evidence

indicating that defendant disregarded the commands of police

officers who were responding to a volatile street brawl, assaulted

two of those officers, and broke the nose of one of the officers

while resisting them.

As the trial judge reasonably concluded, the prosecutor's

amplified letter adequately responded to the court's initial

18 A-3906-11T4 concerns about the completeness and clarity of the reasons for PTI

rejection expressed in the prosecutor's initial denial letter.

The prosecutor's analysis in the second letter is sufficiently

cogent and grounded in the facts and the applicable PTI standards

to be upheld, even though reasonable minds might differ as to

whether defendant is a suitable candidate for admission into the

program.

Lastly, we reject defendant's contention that the prosecutor

engaged in impermissible "double-counting" by referring multiple

times to the violent aspects of the facts within his analysis.

Even assuming for the sake of discussion that double-counting

principles can apply to PTI analyses, the prosecutor appropriately

referred to the State's version of the facts where those facts

were relevant to the applicable PTI factors. The facts certainly

can be discussed more than once within a PTI denial letter, insofar

as they may bear on the discrete criteria for eligibility.

Affirmed.

19 A-3906-11T4