                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3571-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

KEVIN S. RANDLE,

     Defendant-Respondent.
___________________________

                    Submitted September 10, 2019 – Decided September 25, 2019

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 18-07-0597.

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    appellant (Ryan Michael Galler, Assistant Prosecutor,
                    on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Stefan Van Jura, Assistant Deputy Public
                    Defender, of counsel and on the brief).

PER CURIAM
       Near noon on March 29, 2018, a police detective observed a minivan with

Texas license plates in a Walmart parking lot in North Bergen. Concerned by

the behavior of its occupants, 1 and mindful those who traffic in narcotics and

weapons often come to this area from Texas, the detective eventually

approached the vehicle. The driver – defendant Kevin Randle – said he was

visiting family in New York and had slept in the vehicle in the Walmart parking

lot overnight; he said that he and his wife, the female in the vehicle, planned on

driving back to Texas that day. The detective Mirandized 2 defendant and asked

whether he had anything in the vehicle. Defendant replied that he had a utility

knife and a handgun in the rear of the van. Defendant then consented to the

detective's request to search the vehicle.

       The search uncovered a large machete near the driver's seat and not one

but two 9mm handguns, both of which were loaded with hollow point bullets.

Defendant acknowledged ownership of these weapons; he asserted the handguns




1
   The vehicle moved about and parked in many locations within the Walmart
lot. The vehicle's occupants were observed walking in and out of Walmart, and
a nearby Wendy's, apparently without making any purchases. In one instance,
the Detective observed defendant walk into the nearby Wendy's and return
wearing different clothing.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-3571-18T4
                                        2
were legally purchased in Texas and claimed he was unaware he could not

lawfully be in possession of them in New Jersey.

        Defendant was indicted and charged with two counts of second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1), fourth-degree

unlawful possession of a weapon (the machete), N.J.S.A. 2C:39-5(d), and

possession of a certain prohibited device (hollow point bullets), N.J.S.A. 2C:39-

3(f).

        Defendant applied for entry into the pretrial intervention program (PTI),

which is governed by N.J.S.A. 2C:43-12 to -22, Rule 3:28, and the Guidelines

for Operation of Pretrial Intervention in New Jersey (the Guidelines), which are

now part of Rule 3:28. In 2008, the Attorney General issued a "Directive to

Ensure Uniform Enforcement of the 'Graves Act,'" which, at page 8, mentioned

the "expect[ation]" that when a defendant is subject to the Graves Act,3

"prosecutors will consent to a defendant's admission to PTI only in rare cases

involving extraordinary and compelling circumstances that fall outside the

heartland of the legislative policy to deter unauthorized gun possession "; the

Attorney General cited, as an example of a compelling circumstance, an event

where the defendant had the lawful right to acquire and possess firearms in a


3
    N.J.S.A. 2C:43-6.
                                                                         A-3571-18T4
                                        3
different state and presence in this State "was incident to lawful travel." See

State v. Waters, 439 N.J. Super. 215, 236 (App. Div. 2015). In 2014, the

Attorney General clarified this view and suggested a modified approach for out-

of-state visitors charged with Graves Act violations.4

      The criminal division manager's office recommended acceptance of

defendant's PTI application. The prosecutor disagreed, prompting defendant to

seek relief in the trial court. For reasons expressed in a written decision, the

judge granted defendant's motion and ordered his enrollment in the program.

Because the prosecutor opposed that relief, objected to the judge's intention to

permit PTI without entry of a guilty plea, and expressed an intent to appeal, the

judge stayed her order pending further order from this court.

      In appealing, the State reprises its arguments that the motion judge erred

in permitting PTI enrollment over the prosecutor's objection and without

requiring a guilty plea. Under the circumstances, we are compelled to remand

for further explanation from the prosecutor, particularly with regard to her

consideration of the Attorney General's 2014 Clarification.


4
  The precise role this 2014 Clarification plays is not entirely clear. In dictum,
we have said that the 2014 Clarification "is simply a statement of the current
policy of the Attorney General [and] does not change the criteria for PTI set
forth in the Act, Rule 3:28, or the Guidelines." Waters, 439 N.J. Super. at 238-
39.
                                                                          A-3571-18T4
                                        4
      The problem with the proceedings so far is that the prosecutor's expressed

objection was not fully informative. In opposing the criminal division manager's

decision to enroll defendant in PTI, the prosecutor wrote generally that, after

reviewing "the facts of defendant's case" and in consideration of N.J.S.A. 2C:43-

12(e), Rule 3:28, and the Guidelines' third factor – which creates a presumption

against PTI admission when a defendant is charged with a second-degree offense

– the prosecutor found defendant unsuitable for PTI. In providing specifics, the

prosecutor wrote that the objection was based on the nature and facts of the case.

As to the nature of the case, the prosecutor observed that the matter included

two second-degree handgun possession charges, and a fourth-degree weapon

possession charge, and that all those weapons were located in the defendant's

vehicle. As for "the facts of this case," the prosecutor stated that "defendant

possess[ed] two loaded handguns in his vehicle," that the "guns were loaded

with a combined 40 hollow point rounds," and that "a large machete was located

near [defendant's] seat" in the vehicle. The prosecutor did not mention the

factors that did not support the opposition, nor did the prosecutor express

whether or how the decision to oppose the PTI application was impacted by the

factors expressed by the then Acting Attorney General in his 2014 Clarification.




                                                                          A-3571-18T4
                                        5
      The 2014 Clarification expressed concern about "[r]ecent events" that

"focused public attention on how prosecutors exercise discretion in cases where

a resident of another state brings into New Jersey a firearm that had been

acquired lawfully and that could be carried lawfully by that visitor in the visitor's

home jurisdiction." In such matters, the Clarification directed prosecutors, in

exercising their discretion and in weighing all the other factors imposed by law,

to "consider the following special facts":

                 "Minimal Exposure of the Firearm to Persons in
                  New Jersey": The Clarification explained that
                  this factor requires consideration of whether
                  others would be exposed to the dangers posed by
                  the weapon by "focusing on the weapon's
                  accessibility while the defendant would be
                  interacting with other persons while in this
                  State." This factor also requires consideration of
                  "the time during which the unlawfully-possessed
                  firearm would present a risk to anyone in New
                  Jersey," giving as an example the minimal risk of
                  an individual traveling through New Jersey on an
                  interstate highway "with few if any stops" as
                  compared to "a more protracted visit, or multiple
                  visits."

                 The gun offense was "Isolated and Aberrational":
                  This requires consideration of whether the
                  defendant "is otherwise a law-abiding person,"
                  requiring consideration of defendant's prior
                  brushes, if any, with the criminal justice system.

                 "Volunteering Presence of Firearm to Police":
                  The Clarification suggests that prosecutors

                                                                             A-3571-18T4
                                         6
                  consider whether defendant's own initiative
                  revealed to a police officer the presence of a
                  firearm.

                Whether the "Unloaded Firearm" was
                 "Surrender[ed]     for    Safe-keeping":    The
                 Clarification provides a mitigating example of a
                 defendant presenting "an unloaded firearm to a
                 hotel clerk for safekeeping to prevent it from
                 being stolen from defendant's vehicle during a
                 hotel stay."

                "Circumstances Concerning Confusion of New
                 Jersey and Other-state law": The Clarification
                 recognizes that "everyone is presumed to know
                 the law," but that "a claim of inadvertence should
                 be viewed with greater skepticism if defendant
                 was on actual notice" that possession of the
                 weapon was contrary to this State's law.

The Clarification recognized "[t]here is no mathematical formula for evaluating"

these circumstances "in relation to the other aggravating and mitigating

circumstances that prosecutors must consider," and that it is not "possible to

ascribe the precise weight that should be given to any particular circumstance

militating for or against admission to PTI."

      In objecting, the prosecutor emphasized the accessibility of the handguns,

with the additional aggravating factor that the guns were loaded with hollow

point bullets. The prosecutor also relied on the accessibility of the machete,

apparently within reach of anyone sitting in the driver's seat. These facts


                                                                        A-3571-18T4
                                        7
certainly provided support for objecting on the basis of the first of the

Clarification factors. But the prosecutor's opposing letter made no mention at

all of the 2014 Clarification nor can we ferret out from the opposing letter the

prosecutor's view of the other 2014 Clarification factors.

      In ordering defendant's enrollment in PTI over the prosecutor's objection,

the motion judge relied on the prosecutor's failure to mention or discuss the 2014

Clarification; moreover, the judge considered each of the five Clarification

factors and concluded they supported PTI admission. We find that the judge

was rightfully concerned by the prosecutor's silence on the 2014 Clarification

factors but that she also exceeded her limited discretion in making her own

observations about the Clarification factors in overruling the prosecutor's

objection to defendant's admission into PTI.

      In such matters, we start with the proposition that it is the "fundamental

responsibility" of the prosecutor to decide whom to prosecute, State v. Kraft,

265 N.J. Super. 106, 111 (App. Div. 1993), and with an acknowledgement that

prosecutors have wide latitude in PTI determinations. State v. Wallace, 146 N.J.

576, 582 (1996); State v. Nwobu, 139 N.J. 236, 246 (1995). Deciding whether

to admit a defendant into PTI is a "quintessentially prosecutorial function,"

Wallace, 146 N.J. at 582, that calls for an "individualized assessment of [a


                                                                          A-3571-18T4
                                        8
defendant's] 'amenability to correction' and potential 'responsiveness to

rehabilitation,'" along with a consideration of all the statutory factors and

guidelines. State v. Roseman, 221 N.J. 611, 621-22 (2015) (quoting State v.

Watkins, 193 N.J. 507, 520 (2008)). A prosecutor's objection to PTI admission

is afforded "extreme deference," Nwobu, 139 N.J. at 246, which has also been

referred to as "enhanced" or "extra" deference, State v. Baynes, 148 N.J. 434,

443-44 (1997). In short, defendants are saddled with "a heavy burden" when

seeking to overcome prosecutorial vetoes. Nwobu, 139 N.J. at 246. And courts

may set aside a prosecutor's objection "only" when the prosecutor's decision

constitutes a "most egregious example[] of injustice and unfairness." State v.

DeMarco, 107 N.J. 562, 566 (1987).            To overturn a rejection of a PTI

application, a defendant must "clearly and convincing establish that the

prosecutor's refusal . . . was based on a patent and gross abuse of . . . discretion."

Wallace, 146 N.J. at 582 (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)).

An abuse of discretion occurs when the "prosecutorial veto (a) was not premised

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

irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment."

Wallace, 146 N.J. at 583 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). The

error complained of rises to the level of a "patent and gross abuse of discretion"


                                                                              A-3571-18T4
                                          9
when the prosecutor's abuse of discretion "will clearly subvert the goals

underlying Pretrial Intervention." Ibid.

      The motion judge – in light of the prosecutor's silence on the matter –

assumed the prosecutor failed to consider the 2014 Clarification. The judge not

only assumed those additional factors were not considered by the prosecutor but

also undertook to explain why she thought their consideration favored PTI

admission. We conclude that the judge acted precipitously when she assumed

what the prosecutor did or didn't consider. And in determining for herself how

the five Clarification factors applied or should have been weighed here, the

judge mistakenly usurped the prosecutor's role. See Nwobu, 139 N.J. at 253.

      When presented with an objection that offered no evidence of the

prosecutor's consideration of the 2014 Clarification, the judge should have

sought enlightenment from the prosecutor – see Roseman, 221 N.J. at 629

(observing that "the appropriate remedy for an inadequate statement of reasons

by the prosecutor" is "ordinarily . . . a remand for further consideration of

defendant's application"); State v. K.S., 220 N.J. 190, 200 (2015) (recognizing

that a remand "is the proper remedy" when the prosecutor considers

inappropriate factors or fails to consider relevant factors); State v. Dalglish, 86

N.J. 503, 509-10 (1981) (noting many reasons that will support a remand,


                                                                           A-3571-18T4
                                       10
including a prosecutor's apparent failure to consider all relevant factors) – rather

than assume the Clarification went unconsidered and then analyze and weigh

those factors herself.

      To be sure, the prosecutor's written objection was hardly conducive to

promoting the limited judicial review that must occur in such matters. The

prosecutor's letter cited the applicable authorities, the fact that defendant was

charged with two second-degree weapons offenses, and a few brief comments,

which we quoted above, about the accessibility of the handguns and the fact that

they were loaded. The letter made no mention of the fifteen other factors set

forth in N.J.S.A. 2C:43-12 and made no mention at all of the 2014 Clarification

and its additional considerations. The prosecutor's silence on these matters

disserves the process; a prosecutor's objection must be made with "sufficient

specificity" to provide a defendant with "a meaningful opportunity" to respond.

State v. Maddocks, 80 N.J. 98, 109 (1979). An unenlightening statement from

the prosecutor deprives the defendant of a fair attempt to overcome an objection,

Nwobu, 139 N.J. at 249; State v. Sutton, 80 N.J. 110, 117 (1979), and hampers

proper judicial review, State v. Negran, 178 N.J. 73, 82 (2003); Maddocks, 80

N.J. at 109. In light of the prosecutor's silence about the factors outlined in the

2014 Clarification, as well as the absence of any comment about the other fifteen


                                                                            A-3571-18T4
                                        11
statutory factors, the judge should have turned the matter back to the prosecutor

for further amplification.

                                     * * *

      We vacate the order under review and direct the prosecutor to further

consider the PTI application and to express in writing what statutory factors

supported or weighed against the PTI application; the prosecutor should also

describe how the 2014 Clarification impacted the determination. We leave it to

the motion judge to schedule the submission of the prosecutor's amplification,

any further briefing, and the scheduling of oral argument on defendant's PTI

motion.

      Vacated and remanded for further proceedings.          We do not retain

jurisdiction.




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                                      12
