State v. E.R.

• Decision Date: 14 March 2022
• Docket Number: DOCKET NO. A-1294-19
• Citation: 471 N.J.Super. 234,272 A.3d 435
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. E.R., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

471 N.J.Super. 234

272 A.3d 435

STATE of New Jersey, Plaintiff-Respondent,

v.E.R., Defendant-Appellant.

DOCKET NO. A-1294-19

Superior Court of New Jersey, Appellate Division.

Submitted January 18, 2022

Decided March 14, 2022

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

Grace C. MacAulay, Acting Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Messano, Accurso and Enright.

The opinion of the court was delivered by

ENRIGHT, J.A.D.

In this appeal, we consider the legal issue of whether the prosecutor properly denied defendant E.R.,¹ a middle-aged woman with a history of mental health problems, entry into the pretrial intervention program (PTI), N.J.S.A. 2C:43-12, based primarily on the belief that probation could provide a more appropriate level of supervision — without addressing the type of supervision defendant required or why it couldn't be afforded her through PTI.

Defendant appeals from her October 7, 2019 judgments of conviction, contending the trial court erred in affirming the prosecutor's denial of her application for admission to PTI. We agree, and accordingly vacate the challenged June 20, 2019 order, remanding this matter for further proceedings.

I.

Defendant was charged under three separate indictments for offenses she committed in May 2018. On May 5, 2018, defendant approached a Camden County sheriff's officer seated in a marked car. She moved to strike the officer on his head, but because he shielded himself, she hit his arm. The officer did not report he was injured during the incident. When the officer asked why she struck him, defendant responded, "because you looked like a white boy and you shouldn't be here, it should be a black man." Defendant was arrested and charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a).²

The next day, while defendant was detained at the Camden County Jail, she struck a corrections officer who tried to check her blood sugar levels. The officer sustained a bloody nose. As a result of this incident, defendant was charged with third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(5)(h).

On May 29, 2018, defendant was receiving treatment in the psychiatric ward of Cooper Hospital and struck a nurse. The nurse suffered minor scratches and experienced dizziness. Based on this event, defendant was charged with third-degree aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(5)(j).

II.

It is uncontroverted defendant suffers from mental health issues and has been diagnosed with schizoaffective disorder

, bipolar type.

She also has experienced paranoia, delusions, and auditory hallucinations. Moreover, defendant has a history of inpatient admissions dating back to 2010.

According to defendant, she was not taking her prescribed medication in May 2018 when the assault charges were lodged against her. The record also reflects that in June 2018, she had a psychiatric episode and was hospitalized for two weeks. The day after her release, she suffered another psychiatric episode, and was found walking naked in Camden, stating "cave wom[e]n don't wear clothes." Defendant was hospitalized again for two weeks before she was referred to the Rutgers University Behavioral Health facility in July 2018. Defendant claims she was compliant with the treatment prescribed for her at this facility, which included counseling to help her understand "the dose, schedule, risks and benefits of taking and not taking" her medication.

In February 2019, defendant applied for entry into the PTI program. Her attorney submitted a letter on her behalf, describing defendant's mental health issues and symptoms, and stating defendant's mental health issues were "at the core of why she finds herself charged in the current indictments." Defense counsel supplied the State with defendant's medical records to corroborate her condition, and noted she was currently receiving treatment.

The State denied defendant's PTI application in March 2019, but limited its decision to the facts pertaining to her May 5 assault on a law enforcement officer. In reaching this determination, the State relied, in part, on Rule 3:28.³ Moreover, the State reviewed each of the seventeen factors enumerated in N.J.S.A. 2C:43-12(e) and found the following factors weighed against defendant's admission into PTI:

(1) the nature of the offense;

(2) the facts of the case;

(3) the motivation and age of the defendant;

(6) the likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through ... participation in supervisory treatment;

(7) the needs and interest of the victim and society; (8) the extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) the applicant's record of criminal and penal violations and the extent to which [the applicant] may present a substantial danger to others;

(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;

(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;

The State also considered N.J.S.A. 2C:43-12(e)(5) :

the existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment[.]

It determined this factor weighed in favor of defendant's admission into PTI.

Lastly, the State found the following factors under N.J.S.A. 2C:43-12(e) were "not applicable" and did not weigh against defendant's admission into PTI:

(4) the desire of the complainant or victim to forego prosecution;

(11) consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) the history of the use of physical violence toward others;

(13) any involvement of the applicant with organized crime;

(15) whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures; (16) whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants[.]

In April 2019, defendant filed a motion to compel her admission into the program. The motion judge remanded the matter and directed the State to reconsider defendant's application to include all three pending aggravated assault charges. The State complied, and the next month, it again rejected defendant's PTI application, having altered its position on three factors, namely N.J.S.A. 2C:43-12(e)(3), (5), and (9).

Regarding N.J.S.A. 2C:43-12(e)(3), the motivation and age of defendant, the State determined this factor should not have been weighed against her previously and should have been assessed as a neutral factor. As for N.J.S.A. 2C:43-12(e)(5), the existence of personal problems and character traits which may be related to the applicant's crime, the State no longer viewed this factor in defendant's favor. Acknowledging "[d]efense counsel has submitted correspondence stating that defendant has ‘an extensive history of hospitalizations’ for issues including ‘schizoaffective disorder

, bipolar type,’ " the State concluded

it does not appear that there are services that defendant may require which are not available through the criminal justice system. ... The State is not convinced that defendant's behavior might be controlled by treatment. If defendant has already shown, on the three separate occasions, that she cannot or will not comply with treatment, the State cannot find that this factor weighs in favor of defendant's admission.

Turning to N.J.S.A. 2C:43-12(e)(9), defendant's criminal history and the extent to which she might present a substantial danger to others, the State reconsidered its previous decision to count this factor against defendant. It acknowledged defendant's pending charges represented her "first indictable charges" and she did "not have a history of penal violations." But instead of weighing this factor in defendant's favor, the State simply stated "[t]his factor does not weigh against defendant's admission."

Notably, the State again weighed N.J.S.A. 2C:43-12(e)(6), the likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through participation in supervisory treatment, against defendant. The State determined

nothing has been provided to indicate this factor is applicable. ... The State's position is that the crimes at issue here are not related to a condition or situation that would be conducive to change through participation in PTI. The State submits that this defendant would benefit more from a different level of supervision. The minimal level of supervision and requirements of the PTI program[ ] (when compared to adult probation, or the Mental Health Unit of Probation)[,] is not adequate to supervise defendant based upon her needs and issues.

[(Emphasis added).]

Based on its updated assessment, the State concluded defendant was "not an appropriate candidate for PTI."

Defendant again moved to be admitted into PTI over the State's objection. During argument on the motion on June 20, 2019, the State focused on the various factors it considered when denying defendant's PTI application, including ...