State v. Brooks

ALBIN, J.,

dissenting.

This appeal raises the question whether, in the context of a defendant’s application for enrollment into a pretrial intervention *233 program (PTI), the PTI director, prosecutor, and reviewing trial judge may consider a defendant’s prior arrests on unsubstantiated and dismissed charges. My colleagues have concluded that prior unsubstantiated and dismissed charges have relevance in the PTI decision-making process. I respectfully disagree. A charge that has no factual support in the record is entitled to no weight in determining an applicant’s amenability to rehabilitation. In this case, the officials reviewing Brooks’ application for the PTI program drew inferences of guilt from dismissed charges, without determining whether there was any validity to' the charges. The use of bare arrests to draw inferences of .guilt makes hollow the presumption of innocence and denied Brooks his right to fundamental fairness.

On September 23, 1998, after a motor vehicle stop for speeding in Berkley Heights, James Brooks, then age twenty-four, was arrested for unlawful possession of a handgun, possession of a controlled dangerous substance, and driving with an open container of alcohol. Brooks, a self-employed bail bondsman and private investigator living in Maryland, had been visiting his mother in New Jersey at the time of the stop. A search of his car revealed a loaded .380 9mm handgun under the floor mat in the back seat, an open bottle of beer, and a fraction of a gram of burnt marijuana in an ashtray.

Brooks applied for admission into the Union County PTI program. The PTI director rejected Brooks’ application because of the “serious nature of the charges coupled with [his] continual involvement” with the criminal justice system. In her rejection letter, the director listed Brooks’ “numerous encounters with the police,” which, in her estimation, made him unsuitable for PTI. The director recounted that on two occasions in 1987, Brooks, then age thirteen and fourteen, was charged with juvenile offenses, adjudicated delinquent, and ordered to serve two one-year probationary terms. The director also detailed Brooks’ six other arrests as a juvenile in 1987 and 1988 and his two arrests as an *234 eighteen and nineteen-year-old adult in 1992, all of which resulted in dismissed charges.

As far as can be discerned from the record, the director did nothing to verify whether there was any truth to the dismissed charges. Nor does the record suggest that Brooks was asked to respond to any questions during his PTI interview concerning the dismissed charges. Nevertheless, without any facts substantiating the validity of the two adult charges, the director found: “Although both of these charges were dismissed they display a pattern of disregard for the criminal justice system, and indicate that PTI counseling would be ineffective in deterring you from further criminal activity.” (Emphasis added).

The PTI director did not distinguish the juvenile adjudications, which were arguably remote in time, from the dismissed charges in determining that Brooks was unsuitable for a diversionary rehabilitation program. The dismissed charges were paraded throughout four of the nine pages of the rejection letter, with repeated commentaries from the director that “encounters with police” had not deterred Brooks from “criminal activity” and that the encounters “display[ed] a pattern of disregard for the criminal justice system.” (Emphasis added).

Similarly, after Brooks appealed his PTI rejection to the Superi- or Court, Law Division, the assistant prosecutor representing the State highlighted the unsubstantiated charges as a basis for denying Brooks enrollment into the PTI program. Although the 1992 adult charges against Brooks were dismissed and Brooks had represented at the PTI appeal hearing that he had been “wrongly charged,” the assistant prosecutor argued to the trial court: “PTI is to rehabilitate. He already had a probationary period and already had prior contacts with ... the system as an adult, ... and Mr. Brooks is still engaging in these types of aetivities[J ... Mr. Brooks is not an appropriate candidate for PTI.” The assistant prosecutor did not attempt to supply any factual predicate to support the conclusion that Brooks committed any of the underlying offenses on the dismissed charges. As with the PTI director, *235 the assistant prosecutor simply inferred that Brooks must have been guilty of some wrongdoing because he had been arrested.

Moreover, in its brief to the Appellate Division, the State cited the dismissed juvenile and adult charges as representing part of “ ‘a pattern of disregard for the criminal justice system.’ ” In its brief to this Court, the State contends that bare arrests satisfied the following criteria: “ ‘[t]he extent to which the applicant’s crime constitutes part of a continuing pattern of antisocial behavior,’ [N.J.S.A. 2C:43-12e(8),] ‘the extent to which [the applicant] may present a substantial danger to others,’ [N.J.S.A. 2C:43-12e(9),] the applicant’s ‘history of physical violence toward others,’ [N.J.S.A. 2C:43-12e(12),] and ‘any involvement of the applicant with organized crime’ [N.J.S.A. 2C:43-12e(13)].” In this sense, the State has elevated arrests premised on unsubstantiated charges to the functional equivalent of convictions*

The dismissed juvenile and adult charges were also given weight by the trial court in affirming Brooks’ rejection from PTI. The trial court noted: “The State made one point which is true. [Brooks] is not a person with no contact to the system ever. Some of the contact was in '87, when he was a kid, through '88, and then new contact when he was an adult in '92/'93 — '92 twice.” The court did not distinguish between Brooks’ juvenile adjudications and his unsubstantiated juvenile and adult charges. The trial court continued: .“In weighing this, ... I can’t say the State and [PTI] director abused her [sic] discretion in evaluatingadjudieating this issue. Truthfully said, I think the State’s right and the director’s right in saying no to him at this point in time.”

The record-is clear that at every stage of the PTI process, inferences of guilt were drawn from bare arrests by the PTI director, the assistant prosecutor, and the trial court.

I.

It has long been recognized that a sentencing court may consider many factors' in assembling the composite picture of the “whole man.” State v. Green, 62 N.J. 547, 566-68 , 303 A.2d 312 (1973). *236 In viewing the “whole person,” a trial court may give consideration to an arrest record, provided that it bears relevance to legitimate sentencing concerns. In State v. Green, supra, this Court determined that an arrest record might be relevant under certain circumstances, but cautioned against the misuse of such information:

In our view an arrest could be relevant for several reasons. One is that it may lead to factual material which the defendant does not contest and which may bear upon the character of the sentence. Por example, the arrest may relate to an offense the defendant does not dispute, which offense was disposed of without further action as part of a plea bargain involving other offenses. Again, the sentencing judge might find it significant that a defendant who experienced an unwarranted arrest was not deterred by that fact from committing a crime thereafter. There may be still other reasons depending upon the total circumstances which could warrant at least considei’ation of the fact of an airest. We need not try to anticipate all situations. The important limitation of course is that the sentencing judge shall not infer guilt as to any underlying charge with respect to which the defendant does not admit his guilt.

[ 62 N.J. at 571 , 303 A.2d 312 (emphasis added).]

The concerns of a PTI reviewing court are similar to those of a sentencing court. N.J.S.A. 2C:43-12e and Rule 3:28, Guideline 3, set forth a number of factors to be weighed in determining whether a defendant is a suitable candidate for entry into a PTI program. The factors cited in the statute and rule were not intended to be exhaustive lists of all relevant considerations to be weighed in the PTI review process. The PTI director, prosecutor, and reviewing court, no less than a sentencing court, must also take account of the “whole person.” Moreover, in doing so, it is clear that the rule in Green prohibiting the use of an unsubstantiated charge to infer guilt must apply equally to the PTI process.

In order to overcome the prosecutorial veto of his admission into PTI, Brooks must clearly and convincingly establish a patent and gross abuse of prosecutorial discretion. State v. Nwobu, 139 N.J. 236, 246 , 652 A.2d 1209 (1995) (quoting State v. Kraft, 265 N.J.Super. 106, 111-12 , 625 A.2d 579 (App.Div.1993)). An abuse of prosecutorial discretion can be shown where the decision to reject a defendant from PTI was based on: 1) a failure to consider all relevant factors; 2) a consideration of irrelevant or inappropri *237 ate factors; or 3) a clear error in judgment. State v. Bender, 80 N.J. 84, 93 , 402 A.2d 217 (1979). “If the prosecutor’s abuse arises from a clear error of judgment, a court may order that a defendant be admitted into the program.” State v. DeMarco, 107 N.J. 562, 567 , 527 A.2d 417 (1987). However, “[w]hen a prosecutor fails to consider all relevant factors or considers inappropriate factors, a court may ... remand the matter for further consideration.” Ibid. (citing State v. Maddocks, 80 N.J. 98, 105 , 402 A.2d 224 (1979)). See also, e.g., State v. Caliguiri, 158 N.J. 28, 37 , 726 A.2d 912 (1999); State v. Kern, 325 N.J.Super. 435, 439-40 , 739 A.2d 969 (App.Div.1999).

The record before us is rife with inferences of guilt drawn from Brooks’ unsubstantiated and dismissed charges in violation of the Green standard. The PTI director and assistant prosecutor concluded that these charges “display a pattern of disregard for the criminal justice system.” In this context, the director’s repeated references to Brooks’ “continual involvement” and “numerous contacts” with the system were a thin veneer masking her implicit assumption that Brooks was more than likely guilty of those unsubstantiated and dismissed charges. In asking the trial court to defer to the decision denying PTI enrollment, the assistant prosecutor made reference to the remote juvenile adjudications and dismissed adult charges, and then charged: “Mr. Brooks is still engaging in these types of activities.”

The standard of enhanced deference to the prosecutor cited in the majority opinion does not permit deference to the use of irrelevant or inappropriate factors in denying a PTI application. See Nwobu, supra, 139 N.J. at 247 , 652 A.2d 1209 ; Bender, supra, 80 N.J. at 93, 402 A.2d 217 . Brooks was entitled to have his PTI application reviewed in light of relevant factors contained in the record that were truthful and reliable.

I would have no objection if the use of an arrest were predicated on the basis of a factual record that supported the truth of the charge by some manner of proof. For example, if a defendant entered a plea of guilty to certain charges in a multi-count *238 indictment and the factual basis for his plea substantiated the dismissed charges, then for sentencing or PTI purposes, I see nothing improper in the use of such information. Similarly, if the defendant admitted in a presentence or PTI interview that there was truth to the prior charges, even if dismissed, there would be a factual predicate for the appropriate use of that information. Green, supra, 62 N.J. at 571 , 303 A.2d 312 . See also, e.g., State v. Sinclair, 582 N.W.2d 762, 765 (Iowa 1998) (remanding for resentencing because sentencing court may not consider or rely on charges of unproseeuted offenses unless they are admitted by defendant or otherwise proved); State v. Carbajal, 177 Ariz. 461 , 868 P.2d 1044, 1046 (Ct.App.1994) (stating rule that trial court may not consider mere arrests as aggravating factors where there is no evidence that a crime or some bad act was probably committed by defendant); People v. Gomez, 247 Ill.App.3d 68 , 187 Ill.Dec. 112 , 617 N.E. 2d 320, 324 (1993) (reiterating rule that consideration of mere arrest without supporting evidence to establish reliability constitutes error); Craddock v. State, 64 Md.App. 269 , 494 A.2d 971, 975-76 (Sp.App.) (finding no evidence to support inference that sentencing judge considered defendant’s prior arrests, but stating that judge would have erred had he considered a “bare list” of prior arrests that did not result in convictions), cert. denied, 304 Md. 297 , 498 A.2d 1184 (1985); Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977) (ruling that “a bare accusation or the mere fact of arrest is not sufficient to support a conclusion that a defendant has previously engaged in criminal conduct”), aff'd on reh’g, 576 P.2d 982 (Alaska 1978).

There may be other ways to provide a factual predicate for a dismissed charge, but none appear in this record. In the case of James Brooks, there is nothing to substantiate any of the dismissed charges that were used to draw inferences of guilt. I would remand this matter for reconsideration so that the dismissed charges may be viewed in light of the proper standards previously enunciated by this Court.

*239 II.

In addition, I believe that it is time for this Court to revisit an assumption in Green that lacks soundness and logic. Green suggested that a “sentencing judge might find it significant that a defendant who experienced an unwarranted arrest was not deterred by that fact from committing a crime thereafter.” 62 N.J. at 571 , 303 A.2d 312 . There is no rational basis to conclude that a defendant otherwise innocent but subject to an unwarranted arrest is more likely to be deterred from committing a crime than a person who was never subject to an unwarranted arrest. Under cover of the Green rationale, defendants will find that they are not protected by the presumption of innocence as PTI directors and prosecutors, without having to offer proof of guilt, continue to infer guilt from dismissed charges. It is not that prosecutors and PTI directors, or even judges, are more likely than others to infer guilt from dismissed charges. It is that the mental gymnastics required by Green — you may consider the dismissed charges but do not infer guilt from them — are beyond the power of the human mind. See, e.g., Bruton v. United States, 391 U.S. 123 , 134 n. 8, 88 S.Ct. 1620 , 1627 n. 8, 20 L.Ed.2d 476 , 483 n. 8 (1968) (quoting Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir.) (Hand, J.), cert. denied, 285 U.S. 556 , 52 S.Ct. 457 , 76 L.Ed. 945 (1932)). This Court should reject the paralogical reasoning of Green that permits the misuse of unsubstantiated charges. The officials in the PTI reviewing process should make decisions based on truthful and reliable information. Speculation and innuendo have no place in such councils.

III.

Unlike my colleagues, I cannot agree that James Brooks received a fair review of his PTI application based only on relevant criteria. Enhanced deference to a flawed decision-making process will not enhance the administration of justice. I conclude that the improper use of Brooks’ arrest record requires a remand for reconsideration by the PTI director and prosecutor.

*240 For affirming — Chief Justice PORITZ and Justices COLEMAN, VERNIERO, LaVECCHIÁ, and ZAZZALI — 5.

For reversing and remanding — Justice ALBIN — 1.