SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0867- 22 STATE OF NEW JERSEY, Plaintiff-Appellant,

v. GREGORY PHELPS, Defendant-Respondent.

____ _____________________

Submitted June 20, 2023

– Remanded July 6, 2023 Resubmitted December 13, 2023

– Decided January 2, 2024Before Judges Accurso, Vernoia, and WalcottHenderson. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 22

- 05

- 0734. William Edward Reynolds, Atlantic County Prosecutor , attorney for appellant (John J. Santoliquido, Assis tant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Scott Michael Welfel, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0867

- 22

The State appeals from an order directing defendan t Gregory A. Phelps ' admission into the Pre-Trial Intervention Program ( PTI). See R. 3:28 -6(c). After the State filed its merits brief in support o f the appeal, defendant's thencounsel advised this court that defendant did not w ish to contest the State's appeal. We subsequently issued an opinion reversing the co urt's order directing defendant's admission into PTI. Represented by new coun sel, defendant moved for reconsideration, arguing his prior counsel erre d by failing to file a brief in opposition to the State's appeal and representing that defendant did not wish to
oppose it

. Based on the unique circumstances presented by defe ndant's motion, and for other reasons we detailed in an order, we grant ed the reconsideration request, withdrew our prior opinion , and permitted defendant's new counsel to file a b rief in opposition to the State's arguments on appeal. Having considered the brief submitted on defendant's behalf, as well as the Sta te's arguments, the record before the trial court, and the applicable legal pr inciples anew, we reverse and vacate the court's order directing defendant's admi ssion into PTI. The facts giving rise to the charges against defend ant are not in dispute. During a June 12, 2021 drunken early morning argume nt with his sister's boyfriend, defendant sawed into the victim's forear m with a piece of glass,3 A- 0867

- 22

resulting in necessary medical attention and stitch es to close a deep laceration. A judge issued a domestic violence temporary restra ining order (TRO) against defendant. 1 A grand jury later indicted defendant for third-deg ree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree posse ssion of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-d egree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant applied for admission to PTI. Because de fendant was charged with a crime involving domestic violence as defined under section three , N.J.S.A. 2C:25-19, of the Prevention of Domestic Vi olence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and the crime charged inv olved violence or the threat of violence, there is a statutory presumption again st his admission into PTI. N.J.S.A. 2C:43-12(b)(2)(b); R. 3:28 -1(e)(2)(b)(ii). Defendant was therefore required to "rebut the presumption" by including in his "application for admission a statement of the extraordinary and comp elling circumstances that jus tify consideration of the application notwithstandin g the presumption against admission." R. 3:28 -1(e)(3); see also N.J.S.A. 2C:43-12(b)(2)(b).

1 During later colloquy between the attorneys and the j udge, it became clear the TRO was later dismissed by the victim. There is no order dismissing the TRO in the record.4 A- 0867

- 22

Defendant's then-counsel submitted a letter as a " statement of compelling reasons" supporting the PTI application. The lette r suggested it was not clear that the relationship between defendant and the vic tim supported a finding the charged aggravated assault qualified as an act of d omestic violence under the PDVA such that defendant was subject to the presump tion against PTI admission under N.J.S.A. 2C:43-12(b)(2)(b). But the letter a lso stated the victim resided with defendant's sister in the same home

— defendant's mother's home

— where defendant also resided. The fact that defendant an d the victim had resided, or were residing, in the same home thereby rendered th e alleged assault a crime against a "victim of domestic violence" under the P DVA, see N.J.S.A. 2C:25- 19(d) (providing in part that a victim of domestic violence includes a person who is eighteen or older who is subject to an act o f domestic violence by "any other person who is a present household member or w as at any time a household member" with the victim). Defendant's statement of compelling reasons therefore established the aggravated assault charge was one to which the presumption against admission into PTI applied unde r N.J.S.A. 2C:43- 12(b)(2)(b). Defendant does not argue to the contr ary on appeal. Defendant's statement of compelling reasons

— submitted to overcome the presumption against his admission to PTI

— further stated the criminal charges5 A- 0867

- 22

arose out of a "consensual fight" during which the victim placed defendant in a "choke hold." Defendant asserted that while in the choke hold, he "picked up a broken bottle and cut [the victim's] arm to avoid l osing consciousness." Defendant also claimed the incident followed "the e xcessive use of alcohol by the parties, including [defendant]," and that short ly after the event, defendant participated in counseling for several months. The letter did not state defendant was continuing c ounseling or detail the nature of the counseling in which he had participate d following the incident that resulted in the charges. The letter also did not c laim defendant suffered from any prior substance abuse issues involving drugs or alcohol or that such issues contributed to defendant's assault of the victim. Defendant claimed he had been a resident in Atlant ic County for several years and his only prior contact with the criminal justice system included a 2017 municipal court conviction and a 2015 conviction fo r driving while intoxicated (DUI). Defendant noted he had no prior domestic vi olence history and he had been previously employed for several years in the c onstruction field and more recently had worked in property management for "ove r a year." The letter offered no other putative reasons supporting defend ant's effort to overcome the statutory presumption he should not be admitted to PTI.6 A- 0867

- 22

In a comprehensive letter explaining the basis for the State's denial of the application, the assistant prosecutor discussed all seventeen factors listed in N.J.S.A. 2C:43-12(e), explaining those that weighed in favor of defendant's admission, those that weighed against, and those th at "do not necessarily weigh in favor of or against" admission. She also said t he State considered defendant's "compelling circumstances letter" that accompanied his application. In summary, although these were defendant's first indi ctable offenses, the prosecutor explained: "There is nothing specifical ly exceptional or demanding which would require the entry into the PTI program in this instance, especially since [d]efendant is a violent offender who poses a danger not just to this victim, but potentially to the community at large." Defendant appealed the State's rejection. Attache d as an exhibit to defense counsel's brief was a September 12, 2022 re port from a mental health and addiction counseling service that listed the da tes of eighteen sessions defendant attended beginning shortly after the inci dent leading to his indictment and stated he "continue[d] to make positive progres s to his treatment goals." The report indicated, however, that defendant atten ded no sessions between November 2021, and July 2022, i.e., shortly after his indictment and application for PTI.7 A- 0867

- 22

The judge heard argument on defendant's motion. D efendant contended the prosecutor relied exclusively on the nature of the offense and the victim's impact statement and further asserted the State did not have all the information regarding defendant's attendance at counseling sess ions. The prosecutor countered by emphasizing the violent nature of the offense, the injury suffered by the victim, and defendant's prior disorderly per sons conviction for simple assault and "out- of -state criminal history . . . from the State of New York for a drug offense, as well as DUI." The judge engaged in an extensive discussion with defendant regarding his counseli ng and prior addiction to opiates. In response to que stioning by the court, defendant explained the counseling he attend ed focused on "substance abuse, anger management, [and] trauma therapy." De fendant also stated he had a prior substance abuse history primarily with opia tes, but he had been "clean of opiates" for the prior five years, he had not used alcohol for years, and that his use of alcohol on the date of the incident "was an is olated incident" that was not "something [he] . . . regularly would do." The court also focused on the State's comments regardi ng factors five and six. See N.J.S.A. 2C:43-12(e)(5) ("The existence o f personal problems and character traits which may be related to the applic ant's crime and for which8 A- 0867

- 22

services are unavailable within the criminal justic e system, or which may be provided more effectively through supervisory treat ment and the probability that the causes of criminal behavior can be controlled by prope r treatment"); and (6) ("The likelihood that the applicant's crime is rela ted to a condition or situation that would be conducive to change through his parti cipation in supervisory treatment"). The State had found those factors were i n equipoise because it was "unaware of any specific personal problems . . . ch aracter traits[,]" or "circumstances" indicating defendant's behavior wou ld "change through . . . participation in supervisory treatmen t." Noting defendant had never before admitted his past opiate addiction, the judge reasoned there was "a tendency, when one is f acing criminal charges, to want to not be entirely forthcoming." She added, " I don't find that the . . . State has abused its discretion here, but I . . . think m aybe some more information . . . may be helpful." She noted the d ismissal of the TRO as an "example." The prosecutor responded that "if it wa sn't in the initial application and it wasn't in the information submitted to the S tate, I don't know how the State can be held responsible for taking it into co nsideration. I don't think it should have been taken into consideration because i t wasn't provided." In rendering her final decision, the judge said:9 A- 0867

- 22 So now that I have a little bit more information ab out this . . . and maybe I'm wrong to explain it this w ay, but I don't find that [the prosecutor's denial] was bas ed on a patent and gross abuse of discretion. . . . [B]ut I do find that the decision didn't account for all the r elevant factors. And I . . . understand that [it] is actua lly not the failing of the State in reviewing it. It . . . just ap pears that while [defendant] provided information that he was attending counseling . . . I think he d idn't give the detailed information that he's given to th e [c]ourt . . . that set forth all of his dates of treatment. . .

. The judge then continued by describing the events t hat led to defendant's indictment as a "family situation," where "maybe . . . everybody" was drinking, and defendant "completely overreacted." Noting thi s was not "a one-time situation for [defendant]," the judge, however, tho ught "it's the one time that he is being forced to look into the abyss of how a sim ple . . . nonsense kind of incident, even at home, can have you facing . . . a criminal conviction." Again, reiterating the State's denial was not "abus e of discretion" but rather was the result of "some information that was not . . . entirely fleshed

out . . . and therefore could not be considered by the State," the judge directed defendant's admittance into PTI "with the understan ding that it is an offense that require[d] him to submit a guilty plea." See N.J.S .A. 2C:43-12(g)(3)(c)10 A- 0867

- 22

(limiting PTI admission to defendants charged with third- or fourth-degree crimes involving domestic violence unless they ente r a guilty plea). 2 The judge's November 17, 2022 order admitted defend ant into the PTI program for twelve months with conditions. As note d, the State appealed as of right pursuant to Rule 3:28 -6(c). We reverse. "PTI is essentially an extension of the charging de cision, therefore the decision to grant or deny PTI is a 'quintessentiall y prosecutorial function.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). "As a result, the prosecutor's decisi on to accept or reject a defendant's PTI application is entitled to a great deal of deference." Ibid. (citing State v. Leonardis, 73 N.J. 360, 381 (1977)). "A c ourt reviewing a prosecutor's decision to deny PTI may overturn that decision onl y if the defendant 'clearly and convincingly' establishes the decision was a 'p atent and gross abuse of discretion.'" State v. Johnson, 238 N.J. 119, 128- 29 (2019) (quoting Wallace , 146 N.J. at 583).

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) wa s not premised upon a consideration of all relevant facto rs, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear e rror in judg[]ment. . . . In order for such an abuse of

2 The record does not indicate whether defendant plea ded guilty.11 A- 0867

- 22 discretion to rise to the level of "patent and gros s," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underl ying [PTI]. [Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).] The same standard governs our review. State v. Neg ran, 178 N.J. 73, 83 (2003). At bottom, "[t]he question is not whether [the judge] agree[s] or disagree[s] with the prosecutor's decision, but whether th e prosecutor's decision could not have been reasonably made upon weighing t he relevant factors." State v. Nwobu, 139 N.J. 236, 254 (1995). "When a defendant convincingly demonstrates a pate nt and gross abuse of discretion, a court may admit the defendant into PT I over the prosecutor's objection." Johnson , 238 N.J. at 129 (citing Roseman, 221 N.J. at 624-25) . But when the prosecutor has failed to consider all rele vant information, a remand is more appropriate. Nwobu , 139 N.J. at 247 (citing State v. DeMarco, 107 N.J

. 562, 567 (1987)). In this case, the court repeatedly stated the prose cutor had not abused her discretion and affirmatively stated it did not find the rejection of defendant's PTI application constituted a patent and gross abuse of discretion. Yet even though the judge considered, over the prosecutor's objecti on, additional information

—12 A- 0867

- 22

a report from the counseling program that was not s ubmitted until after the State's rejection of defendant's application

— and directly from defendant at oral argument, the judge admitted defendant into the pro gram. In doing so, the court did not explain why a remand was not more appropria te. Instead, the court rather simply but erroneously substituted its judgment for that of the prosecutor. This was clear error. See Nwobu , 139 N.J. at 253 (alteration in original) (quoting State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993)) ("A reviewing court 'does not have the authority in PTI matters to subs titute [its own] discretion for that of the prosecutor.'"). Defendant concedes on appeal the court erred by or dering his admission

to the program and, in his opposition brief, he acknow ledges the court's order directing his admission "into PTI over the prosecut or's objection cannot stand." He claims, however, we should vacate the court's or der and remand for consideration of what he characterizes as "critical relevant information

— that [he] has alcohol use disorder co-occurring with his presently- in -remission opiate use disorder, and that [he] was actively attending counseling for substance abuse disorder and anger management to address the underl ying causes of the offense in this case." Defendant claims the State's failur e to consider that information in its assessment of factors five and six, N.J.S.A. 2C:43-12(e)(5) and (6), and its13 A- 0867

- 22

analysis of the other factors under N.J.S.A. 2C:43- 12(e), requires a remand for the State to do so. We reject defendant's argument because it ignores that the information upon which he now relies was not presented in his a pplication and statement of compelling reasons submitted prior to the State's re jection decision. That is, the State properly and fairly considered all the information p resented in defendant's application, as supplemented by his statement of co mpelling reasons, in its thorough and thoughtful analysis of the statutory f actors supporting its rejecti on of defendant's application in the first instance. And, def endant does not dispute that the State properly analyzed the statutory fact ors based on the information supplied in defendant's application and supplementa ry statement of compelling

reasons. Moreover, contrary to defendant's newly minted arg ument made for the first time on appeal, the record is devoid of any i nformation supporting his claim the crimes for which he was charged w ere the result of an "alcohol use disorder

co -occurring" with an in-remission opiate use disorder or tha t the counseling he attended addressed, in any manner, the "underlying causes of the offense in this case." Rather, defendant informed the court he had not used opiates during the five years prior to his commission of the crime and , although he indicated he14 A- 0867

- 22

consumed alcohol prior to his assault of the victim , he claimed he did not use alcohol regularly, and he did not attribute his assault of the victim with a weapon to alcohol use

— in his statement of compelling reasons he claim ed he used a piece of glass to saw into the victim's arm because he feared becoming unconscious because the victim had placed him in a choke hold. Defendant offers too little too late in support of his claim the State failed to properly analyze and assess the statutory factor s pertinent to its decision to reject the PTI application. The State correctly anal yzed the factors based on the information defendant provided, and defendant's cla im there was pertinent information the State failed to properly consider i s undermined by the record showing the information defendant claims the State ignored was not properly provided to the State in his application or stateme nt of compelling reasons and is submitted in the form of the arguments of his co unsel for the first time on appeal. For those reasons, we discern no basis to remand t he matter for the State to review this additional information. Defendant r elies on a report from a counseling service stating he attended counseling for several months immediately after the incident, but the report also shows defendant did not attend any sessions at all for several months until after he was indicted and following15 A- 0867

- 22

the State's rejection of the PTI application. And, as noted, defendant admitted in colloquy with the judge that his addiction to op iates was well in the past, and he had been "clean" for more than five years. The prosecutor considered all the statutory factor s and engaged in a thorough weighing process. The prosecutor appropri ately considered that defendant had been indicted for a violent crime. S ee R. 3:28 -4(b)(1) (noting that in addition to the statutory factors, the "nat ure of the offense should be considered . . . [and i]f the crime was . . . delib erately committed with violence . . . against another person . . . the def endant's application should generally be rejected"). The prosecutor also gave due consideration to the victim's statement, which detailed the physical and emotional trauma he and defendant's family suffered and urged both punishme nt and treatment for defendant. See R. 3:28 -4(c) (requiring "[t]he prosecutor and the court, i n formulating their recommendations or decisions rega rding an applicant's participation . . . shall give due consideration to the victim's position . . . on whether the defendant should be admitted"). The re cord offers no reason to remand the matter for the prosecutor to reevaluate her position.16 A- 0867

- 22

We therefore reverse and vacate the Law Division's November 17, 2022 order admitting defendant into the P TI program. The matter is remanded for further proceedings. We do not retain jurisdiction

.