State v. McKeon

• Decision Date: 24 May 2006
• Citation: 897 A.2d 1127,385 N.J.Super. 559
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John H. McKEON, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

897 A.2d 1127

385 N.J.Super. 559

STATE of New Jersey, Plaintiff-Respondent, v. John H. McKEON, Jr., Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

May 24, 2006

Submitted Feb. 6, 2006. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Attorneys Hartman, Chartered, Moorestown, for appellant (Katherine D Hartman, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, for respondent (Deborah A. Siegrist, Assistant Prosecutor, of counsel and on the brief).

Before Judges CUFF, LINTNER, and GILROY.

OPINION

GILROY J.S.C. (temporarily assigned).

Defendant, John H. McKeon, Jr., appeals from the order of the Law Division of April 27, 2005, affirming the Burlington County Prosecutor's denial of his admission into the State's Pretrial Intervention (PTI) program, N.J.S.A. 2C:43-12. The question presented is whether a defendant may be excluded, pursuant to N.J.S.A. 2C:43-12g, from entry into PTI solely because the defendant previously received benefit of a supervisory treatment program, or its equivalent, in another state when charged with an offense that would not have been a crime in this State. Because we find that an otherwise qualified defendant should not be barred from PTI, we reverse and remand.

In 2002, defendant was charged with driving under the influence of alcohol (DUI) in the State of Pennsylvania, contrary to 75 Pa. Cons.Stat. Ann. § 3731. ^[1] The offense constituted a misdemeanor under Pennsylvania law. The charge was resolved by defendant entering the Accelerated Rehabilitative Disposition (ARD) program, a form of pretrial diversion authorized in Pennsylvania. 75 Pa. Cons.Stat. Ann. § 3807 (2005). ^[2] Defendant was charged with a second DUI offense in Pennsylvania in December 2003, and pled guilty to the offense in September 2004. Other than the two DUI offenses in Pennsylvania, and the present matter, defendant has never been charged with any other conduct considered under the laws of this State or any other state, to be a crime.

On October 19, 2004, a Burlington County Grand Jury charged defendant under Indictment No. 2004-10-1183-I with a single count of third-degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10a(1). On January 31, 2005, defendant applied for PTI. On February 18, 2005, the Criminal Case Manager rejected his application determining that he was statutorily barred because of his prior diversionary treatment in Pennsylvania. N.J.S.A. 2C:43-12g. On March 22, 2005, the prosecutor rejected his application for the same reason, and defendant appealed to the Law Division. Concluding "that it was the legislative intent to limit defendants to one diversionary program regardless of where that diversionary program occurs," the motion judge denied defendant's appeal on April 27, 2005. Under a plea agreement preserving his right to appeal from the denial of PTI, defendant pled guilty to the charge on May 16, 2005. Defendant was sentenced to one-year probation, and a six-month suspension of his driving privilege. All appropriate fines, fees and penalties were also assessed.

The issue concerns construction of N.J.S.A. 2C:43-12g:

g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L. 1970, c. 226 (C. 24:21-27), shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.

Defendant argues that because he has never been diverted into PTI, pursuant to N.J.S.A. 2C:43-12, or received supervisory treatment, pursuant to N.J.S.A. 24:21-27, or N.J.S.A. 2C:36A-1, the successor statute to N.J.S.A. 24:21-27, that he is not barred from admission into PTI under N.J.S.A. 2C:43-12g. Defendant contends that the statutory prohibition in N.J.S.A. 2C:43-12g, applies only when the prior treatment was received under the laws of this State. Alternatively, he asserts, that even if the prohibition is applicable when a defendant received prior diversionary treatment in another state, the prohibition is limited to where the charge in the other state constitutes a crime under the laws of New Jersey.

The State, citing the unreported decision of State v. Meehan, A-2500-80T4 (App.Div. Oct. 19, 1981), ^[3] counters that "supervisory treatment which constitutes a bar to a second diversion may be one which is afforded under the law of this State or another state with a comparable program." (slip op. at 3). The State argues that the "rationale behind the legislative intent is to prohibit supervisory treatment for those defendants who have already demonstrated that they are not amenable to rehabilitation through supervisory treatment; their prior supervisory treatment has not deterred them from engaging in subsequent criminal activity." The State asserts that whether the offense, for which a defendant may have received supervisory treatment in another state, constitutes a crime in New Jersey is not relevant to the exclusionary provision of N.J.S.A. 2C:43-12g.

PTI "represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system." State v. Leonardis, 71 N.J. 85, 92, 363 A.2d 321 (1976) (Leonardis I). See also State v. Wallace, 146 N.J. 576, 581, 684 A.2d 1355 (1996); State v. Lagares, 127 N.J. 20, 28, 601 A.2d 698 (1992); and State v. Bulu, 234 N.J.Super. 331, 341, 560 A.2d 1250 (1989). "Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution" and "[a]ny defendant charged with a crime is eligible for [the program]." State v. Caliguiri, 158 N.J. 28, 35-36, 726 A.2d 912 (1999). "The [Court Rule] Guidelines and the statute ... provide the prosecutor and criminal division manager with specific criteria to apply in reviewing a PTI application." Id. at 36, 726 A.2d 912. "The decision to grant or deny diversion to a defendant carries with it an obligation to fairly exercise the broad discretion given to the prosecutor, in light of the potential consequences to persons charged with criminal offenses." State v. Maldonado, 314 N.J.Super. 539, 544, 715 A.2d 996 (App.Div.1998). "Therefore, in a number of situations in which the prosecutor is vested with a broad measure of discretion, in order to pass constitutional scrutiny, certain prosecutorial decisions have been held to be subject to judicial review for arbitrariness." Ibid.

"[T]o reverse the denial of an application for PTI[,] a defendant must clearly and convincingly establish that the prosecutor's refusal to consent to admission to the program was based upon a patent and gross abuse of discretion." Id. at 543, 715 A.2d 996. "A 'patent and gross abuse of discretion' is 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 required judicial intervention.' " Wallace, supra, 146 N.J. at 582-83, 684 A.2d 1355 (1996) (quoting State v. Ridgway, 208 N.J.Super. 118, 130, 504 A.2d 1241 (Law Div.1985)). "To overturn a prosecutor's decision[,] a party must show that th[e] decision either failed to account for all the relevant factors, was based on irrelevant or inappropriate factors, ... or constituted a 'clear error in judgment.' " State v. Smith, 92 N.J. 143, 145, 455 A.2d 1117 (1983) (quoting State v. Bender, 80 N.J. 84, 93, 402 A.2d 217 (1979)).

An appellate court's scope of review of a trial court's determination is limited. When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). However, "[a] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995).

The State argues for a literal interpretation of the phrase "[s]upervisory treatment may occur only once with respect to any defendant," N.J.S.A. 2C:43-12g (emphasis added), contending that the statute bars any defendant who has previously been admitted into PTI, or its equivalent in another state, even if the act charged in the other state would not constitute a crime in New Jersey. Although when read literally, the statutory language provides some support for the State's argument, we conclude that was not the Legislature's intent when it enacted N.J.S.A. 2C:43-12g.

In construing a statute, the function of a court is to determine the intent of the Legislature and, "generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). "A clear and unambiguous statute is not open to construction or interpretation...." Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277, 121 A.2d 499 (1956) "Such a statute is clear in its meaning and no one need look beyond the literal dictates of the words and phrases used for the true intent and purpose in its creation." Ibid. It is not the function of a court to "presume that the Legislature intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002).

Equally recognizable is the principle...