                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3058-18T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

LEVAR MARTINBOROUGH,

     Defendant-Respondent.
____________________________

                    Submitted August 27, 2019 – Decided September 4, 2019

                    Before Judges Gilson and Mawla.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Union County,
                    Indictment No. 18-02-0073.

                    Jennifer Davenport, Acting Union County Prosecutor,
                    attorney for appellant (Michele C. Buckley, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      The State was granted leave to appeal from a February 7, 2019 decision,

which required it to turn over communications from a victim advocate, records

and communications of the Union County Prosecutor's Office investigation, and

the decision to deny defendant Levar Martinborough admission to pre-trial

intervention (PTI). We reverse the order requiring the State to furnish defendant

discovery on these items.

      We take the facts from the record. Defendant was indicted by a Union

County grand jury for third-degree aggravated assault, N.J.S.A. 2C:12-1(b), in

relation to an early-morning incident outside an Elizabeth lounge in May 2017.

Defendant observed the victim speaking with defendant's girlfriend. Defendant

allegedly approached and struck the victim multiple times, causing mult iple

lacerations to his face, elbow, and left eye. The assault caused the victim to

suffer a nasal fracture and an orbital fracture of the left eye, which required

surgery and a bone graft.

      The victim gave a statement to police describing the incident. He stated

he overheard defendant arguing with his girlfriend during the assault.

Specifically, he heard the girlfriend ask defendant "how he could do that,"

meaning attack the victim, and heard defendant respond "cause he's with you,

you're my girl." Following the statement, the assistant prosecutor assigned to


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the matter declined to charge defendant.      However, the prosecutor's office

continued the investigation due to the seriousness of the victim's injuries and

defendant's indictment followed.

      Defendant applied for PTI and the criminal division manager approved

the application. The State then informed defendant it had overridden the initial

determination and denied him entry to PTI. The reasons for the denial were set

forth in a fourteen-paragraph, three-page email, which addressed the guidelines

for admission pursuant to Rule 3:28 and the N.J.S.A. 2C:43-12(e) factors.

      The PTI denial noted the crime was not victimless, given the serious

injuries inflicted by defendant. The State noted "[d]efendant engaged in an

unprovoked, deliberate and intentional attack upon the victim on a public street."

The State also considered that the victim, through the victim advocate, advised

that he wished to pursue the charges in an email sent to the prosecutor, wh ich

the State had turned over to defendant in discovery. The State cited the need to

protect the victim, and the public, from such unprovoked attacks in the future.

The State also considered the factors in favor of admitting defendant to PTI,

namely, his age, education level and desire to continue his education,

employment history, his experience as a corrections officer, and lack of a




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                                        3
criminal record or history of violence. However, the State concluded these

factors were outweighed by the factors against admission.

      The PTI denial concluded "defendant's crime is of such a nature that the

value of supervisory treatment is outweighed by the public need for

prosecution. . . . For those same reasons, the State submits the harm done to

society by abandoning criminal prosecution outweighs the benefits to society

from channeling defendant into diversionary supervisory treatment[.]"

      Defendant filed a motion to compel discovery from the prosecutor's office

"concerning any contacts, communications and involvement by the victi m's

advocate/civil attorney" relating to defendant's case. Defendant sought "the

dates, times, places of and persons attending any meetings or verbal

communications with [the victim advocate] and any emails from [the former

assistant prosecutor who had handled the matter] regarding the investigation and

. . . prosecution of this matter."

      During oral argument of defendant's motion, counsel explained he sought

the discovery because "[i]t goes to the bias in the way the prosecutor's office

dealt with [the victim advocate,] the access [the victim advocate] had to the

[prosecutor's] office, . . . the access he had to the victim and his involvement




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                                       4
actually in the case going up." 1 Defense counsel also argued the advocate had

provided inaccurate information to the State regarding the incident itself, which

"differ[ed] from the States' own theory of the case." Therefore, counsel argued

he was "entitled to know what other inaccuracies he's provided to the State[.]"

      On August 28, 2018, the motion judge issued a written decision granting

defendant's motion. Citing State v. Barath, 169 N.J. Super. 181 (Law Div.

1979), the judge stated:

                  This court does find that the circumstances
            surrounding this case, including but not limited to: the
            original charging decision, the victim's refusal to speak
            with the police, the victim's interference with the
            investigation, and the email from [the victim advocate]
            to the prosecutor's office, support at minimum,
            defendant's instant request for discovery as a matter of
            fairness. However, the requested discovery will be
            reviewed in camera by this court to determine if
            disclosure is necessary and appropriate.

The State sought interlocutory review of this decision, however, we denied the

application because the judge had not had an opportunity to conduct the in

camera review.

      After the judge reviewed the discovery in camera, she issued a written

decision on February 7, 2019, challenged in this appeal. Again citing Barath,


1
  By "going up" we infer counsel meant the victim advocate's influence on the
State's decision to charge defendant.
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                                       5
the judge recited the broad authority of the court to order discovery. The judge

also stated:

                      It is also well settled that under [Rule] 3:13-3, a
               criminal defendant is entitled to broad discovery, and
               due process requires that the State disclose information
               it possesses which is material to the defense, as well as
               evidence of a favorable character to the defendant.
               Brady v. Maryland, 373 U.S. 83 (1963).

      The judge recited the statutory factors the State addressed in its PTI

determination.      The judge also noted the State relied upon fifteen items,

including: the victim's recorded statement; medical records and photographs of

his injuries; six investigation reports; three recorded statements from defendant's

girlfriend; a recorded conversation between the victim and defendant's

girlfriend; the girlfriend's grand jury testimony; and a statement from the

victim's best friend who was with the victim after the assault.

      The judge then stated:

                      The current analysis then becomes whether the
               discovery at issue is material and favorable to
               defendant, requiring its disclosure. In other words, is
               there a reasonable probability the discovery shows the
               State did not consider all relevant factors, based their
               consideration on irrelevant or inappropriate factors, or
               clearly erred in their judgment when denying
               defendant's PTI application. [State v.] Bender, 80 N.J.
               [84,] 92-94 [(1979).]



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                                           6
                   After reviewing the discovery, this court finds it
            material and favorable as it contradicts and undermines
            the factors relied upon by [the prosecutor] in his
            rejection decision. The discovery tends to show the
            State did not consider all relevant factors and based
            their consideration on irrelevant and inappropriate
            factors.

                  The issue currently before this court relates only
            to the discovery.       Accordingly, this court holds
            defendant is entitled to the discovery in order to purse
            his appeal of the State's veto of his admission into PTI.

This appeal followed.

      On appeal, the State argues as follows:

            POINT I – DEFENDANT IS NOT ENTITLED TO
            DISCOVERY OF ANY RECORDS RELATING TO
            PTI.

                                       I.

      Although the issue before us is whether defendant is entitled to discovery

regarding the decision of whether to prosecute or admit him into PTI, certain

principles unique to PTI nonetheless frame the limited decisions a trial court

may make at the PTI stage. The decision to admit a defendant to PTI is a

"quintessentially prosecutorial function." State v. Roseman, 221 N.J. 611, 624

(2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)). Thus, the scope of

judicial review of a prosecutor's determination is severely limited. State v.

Nwobu, 139 N.J. 236, 246 (1995); State v. Hermann, 80 N.J. 122, 127-28 (1979).

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                                       7
Prosecutors have wide latitude in deciding whom to divert into the PTI program

and whom to prosecute. Nwobu, 139 N.J. at 246. "Reviewing courts must

accord the prosecutor 'extreme deference.'" State v. Waters, 439 N.J. Super.

215, 225 (App. Div. 2015) (quoting Nwobu, 139 N.J. at 246). "We must apply

the same standard as the trial court. Therefore, we review the [trial court's

ruling] of the prosecutor's decision de novo." Id. at 226. Likewise, we review

any legal conclusions de novo. State v. Nash, 212 N.J. 518, 540-41 (2013).

      "[A] defendant may obtain a hearing to review the prosecutor's decision

only after he or she has demonstrated in a motion that the prosecutor abused his

or her discretion." State v. Benjamin, 228 N.J. 358, 374 (2017). An abuse of

discretion is "manifest if defendant can show that a prosecutorial veto (a) was

not premised upon 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 Bender, 80 N.J. at 93).

"[I]t must further be shown that the prosecutorial error complained of will

clearly subvert the goals underlying [PTI]." Bender, 80 N.J. at 93. Absent

evidence to the contrary, a reviewing court must "presume the prosecutor

considered all relevant factors before rendering a decision." State v. Dalglish,

86 N.J. 503, 509 (1981) (emphasis added) (citing Bender, 80 N.J. at 94).


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                                       8
                                       II.

      Our de novo review of the record does not support the trial judge's

decision to grant defendant discovery.         The State provided a detailed

explanation, which considered all of the guidelines and statutory factors for

admission to PTI. The State also considered evidence supporting defendant's

admission to PTI. Although the victim advocate's communication with the State

was forceful and at times adversarial, we are not convinced the communication

did anything other than underscore the victim's desire for the State to pursue the

charges. Indeed, considering the substantial evidence related to the assault,

namely, the multiple investigation reports, witness statements, and medical

evidence, the State's decision to deny defendant PTI was not an abuse of

discretion.

      More importantly, the record demonstrates the prosecutor made the

decision to re-visit the investigation two weeks after the incident occurred and

months before any communication from the victim advocate. Further, the bulk

of the communications from the victim advocate concerned whether the

prosecutor would file charges against defendant and did not concern PTI.

Therefore, the record provides no support for defendant's claims that the

decision to prosecute or deny PTI was biased by the victim advocate.


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                                        9
      Furthermore, the motion judge's reliance on Barath is inapposite. Barath

involved a defendant who sought documents, including investigation reports at

the time of his arrest and medical records the prosecutor had relied upon to make

the PTI determination, which defendant had never seen. Barath, 169 N.J. Super.

at 183-87. The court in Barath cited State v. White, 145 N.J. Super. 257 (Law

Div. 1976) and State v. Masucci, 156 N.J. Super. 272 (Law Div. 1978). The

Barath court distinguished White by noting the defense in that case was denied

discovery where it sought information relating to the mental process of the PTI

director in evaluating the information provided by the defendant seeking

admission into PTI. Barath, 169 N.J. Super. at 185-86. The Barath court also

distinguished Masucci by noting the defense there was denied discovery

regarding the scope and sufficiency of the underlying criminal investigation

from the PTI director. Ibid.

      The defense discovery request was granted in Barath because it was

limited to the police reports and the defendant's medical/psychiatric records,

which the PTI director had relied upon to make the PTI determination. Barath,

169 N.J. Super. at 187-89. Here, defendant's request went beyond the actual

records relied upon by the prosecutor and ventured into the mental decision

making process, which is beyond the scope of permissible discovery. Defendant


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                                      10
had all of the materials and an explanation for the prosecutor's PTI

determination, which was grounded in the materials in defendant's possession.

      Finally, the judge's reliance on Brady as the basis for ordering discovery

regarding a PTI determination was wrong as a matter of law. In Brady, the

United States Supreme Court held the State violated due process when it

suppressed and refused to produce in discovery evidence favorable to the

defense on the issue of a defendant's guilt or innocence. 373 U.S. at 87. The

Brady standard is inapplicable to a prosecutor's PTI decision, which is unrelated

to the parties' separate discovery obligation during the prosecution of a criminal

matter.

      Reversed. We do not retain jurisdiction.




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