Appealing PTI Denial – Posting Nude Photos of victim – Revenge Porn

State v. Chow,  N.J. Super. App. Div. Decided April 302, 2019

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

The state appealed from an order that admitted defendant into the Middlesex County Pretrial Intervention Program over its objection. Defendant had been charged with two counts of third-degree invasion of privacy for posting nude photographs of a woman he had previously been involved with on an internet website.

Issue in this case:  State’s hard position—

The State characterizes defendant’s alleged actions as “revenge porn” and provides several citations defining the term “as nonconsensual pornography: the distribution of sexually graphic images of individuals without their consent,” (quoting Patel v. Hussain, 485 S.W. 3d 153, 157 n.1 (Tex. App. 2016)). Revenge is not an element of the charged offense but describes the act of posting an ex- romantic partner’s nude photographs on the Internet in retaliation. For purposes of the crime charged, invasion of privacy, what matters is the victim’s lack of consent.

State v. Nicholson, 451 N.J. Super. 534 (App. Div. 2017), is instructive. There, the defendant was charged with third-degree invasion of privacy for posting a photo of a woman’s intimate parts on the Internet without her consent and was denied entry into the PTI program. Id. at 539-40. We explained it was appropriate for the prosecutor to account for the effect the offense had on the victim. Id. at 554. The State argues, here, that the trauma defendant’s actions caused M.M. was a relevant and weighty consideration.

PTI Guidelines:

N.J.S.A. 2C:43- 12(e). Both the program manager and prosecutor “shall consider” the following factors in rendering an admission decision:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

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

(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;

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

(7) The needs and interests 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 he 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;

(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 towards others;

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

(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;

(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; and

(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.

PTI is intended for defendants in need of rehabilitative services and “when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred.” Guidelines for Operation of Pretrial Intervention, Pressler & Verniero, Current N.J. Court Rules, Guideline 1, following R. 3:28 at 1289 (2018).

Defendant applied to PTI and the Middlesex County Criminal Division Manager declined to recommend defendant to PTI. The prosecutor agreed and denied defendant’s PTI application. Defendant appealed to the trial court. The trial judge addressed each factor that concerned PTI admission and made his own findings as to whether each favored the state or defendant. The trial judge found that the prosecutor committed a gross abuse of discretion and ordered defendant into PTI.

The prosecutor immediately asked the trial judge to reconsider and he declined to do that. The state appealed and argued that because defendant did not establish by clear and convincing evidence that the state’s decision was a patent and gross abuse of discretion, the trial court erred by admitting defendant into PTI. The state contended that the trial judge did not apply the appropriate level of deference to PTI review but rather substituted his own judgment. The court reversed and found that the trial judge exceeded his scope of review by making findings as to which factors he thought favored the respective parties. The court rejected defendant’s argument that the prosecutor’s decision constituted a categorical exclusion based on the crime charged. The court further noted that perhaps the most troubling aspect of the trial judge’s decision was the minimization of the impact on the victim.