                             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                        NOT FOR PUBLICATION WITHOUT THE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-5084-15T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

DONOVAN L. HAYDEN,

        Defendant-Respondent.

________________________________________________________________

              Submitted February 7, 2017 – Decided August 1, 2017

              Before Judges Espinosa, Suter and Guadagno.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-03-0353.

              Esther Suarez, Hudson County Prosecutor,
              attorney for appellant (Stephen J. Natoli,
              Assistant Prosecutor, on the brief).

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

PER CURIAM

        This is the State's appeal from a decision by the trial court

to admit defendant into the Pre-Trial Intervention (PTI) program
over the Prosecutor's objection on the ground that the State had

applied a per se rule to reject defendant's application.

      At his arraignment on a second-degree weapons offense charge,

defendant's counsel stated defendant was applying for admission

into the Pre-Trial Intervention program (PTI).                     The assistant

prosecutor     countered,    "the     State   will    be   opposing     any   PTI

application for [defendant.]"         After its review of defendant's PTI

application,     the    Criminal      Division    recommended        defendant's

admission into the Pre-Trial Intervention program (PTI), citing a

number of factors personal to defendant and concluding he was "not

a danger to society."       The prosecutor rejected this recommendation

and   denied   defendant's      application      in   a    terse    letter    that

essentially    relied    upon   the   presumption     of    ineligibility     for

persons charged with second-degree offenses.

      We have reviewed the prosecutor's statement of reasons for

rejecting defendant's application.            We conclude the prosecutor

failed to make an individualized assessment of the defendant under

the PTI Guidelines, established by R. 3:28, that took into account

his "'amenability to correction' and potential 'responsiveness to

rehabilitation,'"       State v. Roseman, 221 N.J. 611, 621-22 (2015)

(quoting State v. Watkins, 193 N.J. 507, 520 (2008)); N.J.S.A.

2C:43-12(b)(1), and to consider the statutory criteria required

by N.J.S.A. 2C:43-12(e).

                                       2                                 A-5084-15T3
      For the reasons that follow, we reverse the trial court's

decision to admit defendant into PTI and remand to the trial court

to: provide additional reasons for its decision, remand to the

prosecutor for further consideration or reverse its decision, in

light of the principles we review in this opinion.

                                       I.

      Defendant was twenty-six years old at the time of his arrest

on November 15, 2015.         He was stopped by Jersey City police

officers for a motor vehicle offense, tailgating, N.J.S.A. 39:4-

89.     When defendant opened the center console of his car to

retrieve his credentials, one of the officers observed a handgun

in the console. The gun, a loaded Taurus Model PT.22, a.22 caliber

handgun, was seized.       Defendant was arrested and charged with

second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-

5(b).

      "Any defendant charged with crime is eligible for enrollment

in a PTI program, but the nature of the offense is a factor to be

considered   in   reviewing      the    application."   Guidelines      for

Operation of Pretrial Intervention in New Jersey, Pressler &

Verniero, Current N.J. Court Rules, Guideline 3(i) following R.

3:28 at 1235 (2017).       However, depending upon the nature of the

offense   charged,   the   PTI   Guidelines   establishes   a   rebuttable

presumption that the application "should generally be rejected"

                                       3                           A-5084-15T3
or "should ordinarily not be considered."               Ibid.   A "defendant's

application should generally be rejected" if the charged offense

was:

            (1) part of organized criminal activity; or
            (2) part of a continuing criminal business or
            enterprise; or (3) deliberately committed with
            violence or threat of violence against another
            person; or (4) a breach of the public trust
            where admission to a PTI program would
            deprecate the seriousness of defendant's
            crime.

            [Ibid.]

       Defendant was not charged with an offense that fell within

these categories.      Because he was charged with a second-degree

offense,    his   offense   was    subject   to    a    different   rebuttable

presumption:      "A defendant charged with a first or second degree

offense . . . should ordinarily not be considered for enrollment

in a PTI program except on joint application by the defendant and

the prosecutor."      Ibid.       Notwithstanding this presumption, the

Guideline    establishes    the     procedure     for    review   of   the   PTI

application:

            However, in such cases, the applicant shall
            have the opportunity to present to the
            criminal division manager, and through the
            criminal division manager to the prosecutor,
            any facts or materials demonstrating the
            applicant's amenability to the rehabilitative
            process,     showing    compelling    reasons
            justifying the applicant's admission and
            establishing    that  a    decision   against


                                       4                                A-5084-15T3
             enrollment    would         be       arbitrary      and
             unreasonable.

             [Ibid.]

     The statute that governs PTI does not bar defendants charged

with a second-degree offense from admission or codify a presumption

against admission for such defendants.                N.J.S.A. 2C:43-12.        As

amended by L. 2015, c. 98, which was effective August 10, 2015,

prior to defendant's application, the only limitation applicable

to defendant's admission to PTI was that he enter a plea of guilty.

N.J.S.A. 2C:43-12(g)(3).        The statute provides further, "the plea

shall   be   held   in   an   inactive       status   pending   termination     of

supervisory treatment . . . .         Upon successful completion of the

program of supervisory treatment the charges shall be dismissed."

Ibid.

     At defendant's arraignment, his attorney stated he had made

application and been interviewed for PTI. The prosecutor responded

summarily, "the State will be opposing any PTI application for

[defendant.]"

     Following a review of defendant's application, the Criminal

Division recommended that defendant be enrolled in PTI.                       The

recommendation      letter    cited   the      following   reasons     for   that

conclusion:




                                         5                               A-5084-15T3
     This case represented defendant's "initial known contact with

the criminal justice system."   He had no contact with the juvenile

justice system.     There was no need to refer him for a substance

abuse evaluation.     He was employed, lived with his father and

sister in a "relatively quiet" neighborhood in Jersey City, and

contributed approximately twenty-five to thirty percent of the

rent each month.    Defendant admitted that purchasing and carrying

the handgun "were both examples of very poor judgment," stating:

           I just felt unsafe, that's all. I felt unsafe
           and nervous at the time because of all the
           things that were going on in the area.
           Honestly I don’t even like guns or dealing
           with stuff like that, but I just felt unsafe.
           I actually don't want to live here anymore. I
           want to move to Pennsylvania with my
           girlfriend because I feel like you can't even
           go outside around here anymore.

     The   recommendation   acknowledged   the   seriousness   of   the

offense charged but noted the circumstances that led to defendant's

arrest "were not of a violent or assaultive nature." The officer's

evaluation included the following:

           It is the belief of this Officer that the
           defendant is not a danger to society. Taking
           into consideration the defendant's lack of a
           criminal   history   in  addition   to   being
           gainfully employed and abstaining from the use
           of drugs, this Officer cannot readily identify
           any evidence to suggest Mr. Hayden is likely
           to reoffend.

                . . . .


                                  6                            A-5084-15T3
            This Officer does not believe that Mr.
            Hayden's poor judgment merits a response from
            the Court that would result in a conviction
            on the defendant's otherwise non-existent
            criminal history, especially a conviction that
            carries the possibility of a custodial
            sentence.

            It is the belief of this Officer that the
            hardships Mr. Hayden will inevitably face as
            the result of having a criminal record
            containing a conviction for a second degree
            crime would outweigh any harm done to society
            by     abandoning    traditional     criminal
            prosecution in favor of the supervisory
            treatment that the defendant would receive
            through acceptance into the PTI program.

            [(Emphasis added).]

     After receiving this recommendation, the prosecutor's office

was required to make an individualized assessment of the defendant

under the PTI Guidelines, established by Rule 3:28, that took into

account     his   "'amenability   to   correction'   and     potential

'responsiveness to rehabilitation.'"    Roseman, supra, 221 N.J. at

621-22 (quoting Watkins, supra, 193 N.J. at 520); N.J.S.A. 2C:43-

12(b)(1).

     The prosecutor was also specifically required to consider the

seventeen factors listed in N.J.S.A. 2C:43-12(e), State v. Lee,

437 N.J. Super. 555, 562 (App. Div. 2014), which we list for ease

of reference:

                  (1) The nature of the offense;

                  (2) The facts of the case;

                                  7                            A-5084-15T3
     (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 toward others;

                      8                            A-5084-15T3
                 (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.

            [N.J.S.A. 2C:43-12(e).]

     When   the   prosecutor   rejects   a   PTI   application,   N.J.S.A.

2C:43-12(f)   requires   the   prosecutor    to    "precisely   state   his

findings and conclusion which shall include the facts upon which

the application is based and the reasons offered for the denial."

See also State v. K.S., 220 N.J. 190, 198-99 (2014); State v.

Nwobu, 139 N.J. 236, 248 (1995) (citing Pressler & Verniero, supra,

Guideline 8, at 1240-41); State v. Rizzitello, 447 N.J. Super.




                                   9                               A-5084-15T3
301, 311 (App. Div. 2016); Pressler & Verniero, supra, Official

Comment to Guideline 2 at 1234.

     The rejection letter relied upon by the State to justify its

rejection of defendant's PTI application reads as follows:

                The   defendant    is   charged   in   the
           Indictment with a second degree weapons
           offense which carries a mandatory term of
           imprisonment and is therefore presumptively
           ineligible for admission into the PTI Program,
           absent compelling reasons justifying his
           admission. Defendant's first offender status,
           standing   alone,   does   not   constitute   a
           "compelling    reason,"    and    nothing    in
           defendant's   character    or   background   is
           sufficiently "extraordinary" or "unusual" to
           overcome the presumption against admission.
           See State v. Nwobu, 139 N.J. 236 (1995).

                Moreover,      given     the     alarming
           proliferation    of    illegal,   unregistered
           weapons and the threat they pose to public
           safety, the nature of the offense is such that
           the public need for prosecution and deterrence
           outweighs the value of supervisory treatment.

     In    sharp   contrast   to     the   Criminal      Division    manager's

recommendation, this letter cited no facts regarding defendant's

personal    background   other      than   his   first    offender    status.

Similarly, the letter relies heavily upon the "nature of the

offense" but reveals no consideration of the circumstances of the

offense.    Further, the letter associates the offense with "the

alarming    proliferation     of"    firearms    although     there    is     no




                                     10                                A-5084-15T3
allegation   that     defendant      was    engaged    in   the   trafficking    of

firearms.

     Defendant appealed from the State's rejection.                 He argued the

rejection letter sent to the Criminal Division failed to show the

prosecutor   had      taken   all    of     defendant's     circumstances     into

consideration.      He argued further that, when viewed together, the

rejection letter and the prosecutor's statement at the arraignment

that the State would oppose any application for PTI represented a

"per se" rejection.      See State v. Baynes, 148 N.J. 434, 451 (1997)

(reversing the prosecutors per se rejection of the defendants PTI

application).

     In opposition to defendant's motion, the prosecutor confirmed

that defendant's PTI rejection was based on the reasoning set

forth in the rejection letter.             The prosecutor argued that because

the statement made at arraignment did not constitute the State's

rejection or play any role in the rejection decision, they did not

contribute to any "per se" bar.                Finally, the prosecutor argued

the reasoning for rejecting defendant's application – as set forth

in the rejection letter – was "sound logically and legally."                    The

thrust of the argument presented was that there was nothing

extraordinary    or    unusual      to   overcome     the   presumption   against

admission contained in Guideline 3(i).



                                          11                              A-5084-15T3
    After reviewing applicable legal principles, the trial judge

found the rejection constituted a patent and gross abuse of

discretion:

           And in this case, this is a second degree
           offense.    And it is whether or not the
           defendant has overcome the presumption against
           admission. Here, in the view of this Court,
           that   the   rejection  of   the   defendant's
           application for PTI has, is considered a
           patent and gross abuse of discretion where the
           prosecution has created a per se bar on his
           admission based on a statement at arraignment
           relating to the likelihood of defendant's
           rejection from PTI, based on the statement
           made by the State at arraignment, and then the
           subsequent rejection by the Prosecutor's
           Office. It appears from the record that the
           State knew it would reject defendant's
           application prior to even receiving it solely
           based on the nature of the offense rather than
           upon examination of defendant's background and
           characteristics.

                Upon   reviewing   the   transcript   and
           listening to the tape, or the record of the
           arraignment, the State specifically noted the
           State will be opposing any PTI application for
           Mr. Hayden.     Based on this statement in
           combination with the rejection from the
           Prosecutor's Office, following a careful
           consideration, and acceptance into PTI by the
           Criminal Division Manager, it appears that the
           Prosecutor has per se barred defendant's
           admission into PTI.

      She then ordered that defendant be enrolled in the PTI

program.

    In its appeal, the State argues:



                                12                          A-5084-15T3
                 POINT I

                 THE COURT ERRED IN ADMITTING THE
                 RESPONDENT INTO PTI BASED ON THE
                 PROSECUTOR'S STATEMENTS MADE AT THE
                 ARRAIGNMENT.

                 POINT II

                 THE TRIAL COURT ERRED BY ADMITTING
                 RESPONDENT INTO PTI OVER THE STATE'S
                 OBJECTION AS RESPONDENT FAILED TO
                 DEMONSTRATE THAT THE PROSECUTOR'S
                 REJECTION AMOUNTED TO A PATENT AND
                 GROSS ABUSE OF DISCRETION.

                      A.   THE STATE CONSIDERED ALL
                 RELEVANT FACTORS IN ITS REJECTION OF
                 RESPONDENT'S PTI APPLICATION.

                                   II.

     The prosecutor's decision to accept or reject a defendant's

PTI application is entitled to a great deal of deference. Roseman,

supra, 221 N.J. at 624-25; State v. Leonardis, 73 N.J. 360, 381

(1977).    We do not evaluate the case as if we "stood in the shoes

of the prosecutor." State v. Wallace, 146 N.J. 576, 589-90 (1996).

A prosecutor's decision to accept or reject a PTI application may

be   overruled    only     when   the    circumstances    "'clearly       and

convincingly establish that the prosecutor's refusal to sanction

admission into the program was based on a patent and gross abuse

of . . .   discretion.'"      Roseman,    supra,   221   N.J.   at    624-25

(citation omitted); see Nwobu, supra, 139 N.J. at 254 ("The

question is not whether we agree or disagree with the prosecutor's

                                   13                                A-5084-15T3
decision, but whether the prosecutor's decision could not have

been reasonably made upon weighing the relevant factors.").

     Although we rarely overturn a PTI rejection, the prosecutor's

discretion is not unlimited.           State v. Negran, 178 N.J. 73, 82

(2003).     In rendering the decision, the prosecutor must "make an

individualized assessment of the defendant" and consider whether

the defendant is amenable to rehabilitation.            Roseman, supra, 221

N.J. at 621-22 (citing Watkins, supra, 193 N.J. at 520).                      The

prosecutor     may   not   weigh      inappropriate    factors    or     ignore

appropriate factors.       K.S., supra, 220 N.J. at 200.               Further,

judicial review is not so limited that a denial which addresses

all the statutory factors and the Guidelines escapes further

scrutiny.    In Wallace, the Supreme Court instructed, "We are not

to be understood as endorsing unbridled prosecutorial discretion

simply because all relevant factors and no inappropriate factors

are in the mix."     Wallace, supra, 146 N.J. at 586.        Rather, we are

obligated "to check those instances where the prosecutor has so

inappropriately      weighted   the    various   considerations   so     as    to

constitute a 'clear error in judgment.'"              Ibid.; see also State

v. Denman, 449 N.J. Super. 369, 376 (App. Div. 2017).

     We are mindful of the distinction between a prosecutor's

"abuse of discretion" and "gross and patent abuse of discretion"



                                      14                                A-5084-15T3
and the remedies appropriate for each.           In Roseman, the Court

noted:

                Ordinarily, an abuse of discretion will
           be 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 of judgment.

           [221 N.J. at 625 (quoting State v. Bender, 80
           N.J. 84, 93 (1979)).]

     To establish a "gross and patent abuse of discretion" that

justifies supplanting the prosecutor's decision, a defendant must

also show "that the prosecutorial error complained of will clearly

subvert   the   goals   underlying    Pretrial   Intervention."     Ibid.

(quoting Bender, supra, 80 N.J. at 93).      A "patent and gross abuse

of discretion" is defined as a decision that "has gone so wide of

the mark sought to be accomplished by PTI that fundamental fairness

and justice require judicial intervention."         Wallace, supra, 146

N.J. at 582-83 (citation omitted).

     "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 (1987), and may do

so "over the prosecutor's objection."        Roseman, supra, 221 N.J.

at 625; see also Nwobu, supra, 139 N.J. at 247.




                                     15                           A-5084-15T3
     When there has been an error that does not meet the "patent

and gross abuse of discretion" standard, the appropriate remedy

is a remand to the prosecutor, which affords the prosecutor "an

opportunity to apply the standards set forth by the court 'without

supplanting the prosecutor's primacy in determining whether [PTI]

is appropriate in individual cases.'"           K.S., supra, 220 N.J. at

200 (quoting State v. Dalglish, 86 N.J. 503, 514 (1981)); see also

Denman, supra, 449 N.J. Super. at 377.

                                    III.

     As the trial judge correctly stated, it is a patent and gross

abuse of discretion when a prosecutor applies a per se bar to

reject a defendant's application to PTI.            We disagree, however,

with the conclusion that the record supports the finding that the

prosecutor applied a per se bar here.

     Most typically, a per se bar is based upon an explicit,

admitted policy the prosecutor follows without regard to the

defendant's personal characteristics.           For example, in Baynes,

supra, 148 N.J. at 440, the prosecutor advised the defendant in

writing "that his PTI application was rejected because of that

prosecutor's      acknowledged    policy   to   deny   PTI      admission    to

defendants charged with "school zone offenses," including those

involving possession of CDS for personal use." (emphasis added).

Similarly,   in    State   v.    Caliguiri,   158   N.J.   25    (1999),    the

                                     16                               A-5084-15T3
prosecutor treated the PTI applicant as "categorically ineligible"

based upon a directive from the Attorney General that required

prosecutors to object to any PTI application by any person charged

under N.J.S.A. 2C:35-7 unless the proofs were insufficient to

sustain a conviction.        Id. at 34.

      The consequences for finding a per se rule was applied are

significant:

           By their nature, per se rules require
           prosecutors to disregard relevant factors,
           contrary to the guidelines, and when a
           defendant demonstrates that a prosecutor has
           relied on such a rule, the presumption that
           the prosecutor has considered all relevant
           facts is overcome.

           [Baynes, supra, 148 N.J. at 444-45 (emphasis
           added).]

      Here, the conclusion that a per se rule was applied can only

be   inferred   from   the    statement   of   the   prosecutor   and   the

deficiencies in the rejection letter.          Although those facts are

not inconsistent with that conclusion, they are not sufficiently

probative of that conclusion.       As a result, the court was required

to engage in closer scrutiny of the prosecutor's rejection.

                                    IV.

      Because defendant is charged with offenses that fall within

PTI Guideline 3(i)(2) and thus is presumptively ineligible for

admission into PTI, the court must first determine whether he has


                                    17                             A-5084-15T3
satisfied his burden to present "compelling reasons" to rebut the

presumption against his admission into PTI. Defendant was required

to present facts or materials "'demonstrating [his] amenability

to the rehabilitative process' and 'showing compelling reasons

justifying   [his]   admission   and      establishing   that   a   decision

against enrollment would be arbitrary and unreasonable.'"              State

v. Seyler, 323 N.J. Super. 360, 369 (1999), aff'd o.b., 163 N.J.

69 (2000); Pressler & Verniero, supra, Guidelines 2, 3(i), at

1234-35.   This means he "must demonstrate something extraordinary

or unusual, something 'idiosyncratic,' in his . . . background."

Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 118 N.J.

1, 7 (1990).    This does not, however, require proof that denial

of his PTI application "would constitute a 'serious injustice.'"

Caliguiri, supra, 158 N.J. at 44.

      To determine whether defendant has presented "compelling"

reasons to justify his admission into PTI, "the prosecutor and any

reviewing court are required to consider the criteria set forth

in   N.J.S.A.   2C:43-12,"   which    "include    '[t]he   nature    of   the

offense,' '[t]he facts of the case,' '[t]he needs and interests

of . . . society,' and '[w]hether or not the crime is of such a

nature that the value of supervisory treatment would be outweighed

by the public need for prosecution.'"            Seyler, supra, 323 N.J.



                                     18                              A-5084-15T3
Super. at 369-70 (alterations in original) (citations omitted);

see also K.S., supra, 220 N.J. at 198.

       It is appropriate to bear in mind the rationale underlying

the    presumptions      contained       in    the    Guidelines.         Presumptions

against PTI reflect an assumption that certain defendants "have

committed crimes that are, by their very nature, serious or heinous

and    with    respect     to    which     the       benefits   of   diversion      are

presumptively unavailable."               Roseman, supra, 221 N.J. at 622

(quoting      Watkins,     supra,   193       N.J.    at    523).    The    reasoning

underlying the presumption is that applicants "who have committed

serious and heinous crimes are generally recognized as problematic

from a rehabilitation standpoint."                   Watkins, supra, 193 N.J. at

513.

       This    case   is    ill-suited         for    the    application     of    this

assumption.       First, the offense charged cannot reasonably be

considered "heinous," or of such a character that the offender

should   be    considered       unlikely      to     be   amenable   to   correction.

Second, defendant's personal circumstances offer strong support

for the conclusion, reached by the Criminal Division manager, that

he is unlikely to reoffend.              We leave it to the trial court to

apply the statutory criteria to the facts in defendant's background

and the circumstances of the offense to determine whether defendant

has presented compelling reasons for his admission to PTI.

                                          19                                   A-5084-15T3
                                      V.

     In the event the trial court should conclude defendant has

presented      compelling   reasons    for    his    admission,    the    next

consideration is whether defendant has shown an abuse of discretion

by satisfying one of the three factors identified in Roseman,

i.e., whether the prosecutor's rejection was "premised upon a

consideration of all relevant factors."          Roseman, supra, 221 N.J.

at 625 (quoting Bender, supra, 80 N.J. at 93).               Scrutiny of the

prosecutor's statement of reasons here is particularly appropriate

because the State has consistently maintained in the trial court

and on appeal that its statement of reasons reflects a full and

fair consideration of all factors relevant to defendant's PTI

application     and   provides   a   sound   legal   basis   for   rejection.

Additionally, we note, "a reviewing court's scrutiny is generally

limited   to    the   justification    contained     in   the   statement    of

reasons."      Wallace, supra, 146 N.J. at 584.

     Our courts have emphasized the importance of the statement

of reasons mandated by N.J.S.A. 2C:43-12(f), which "serves four

purposes: (1) It facilitates effective judicial review; (2) it

assists in evaluating the success of the PTI program; (3) it

affords the defendant the opportunity to prepare a response; and

(4) it dispels suspicions of arbitrariness."              Nwobu, supra, 139

N.J. at 249 (citing Leonardis, supra, 71 N.J. at 114-15).

                                      20                              A-5084-15T3
                                     A.

      A review of the applicable principles is helpful in evaluating

the statement of reasons here.

      Each PTI applicant is "entitled to full and fair consideration

of his application."       N.J.S.A. 2C:43-12(f).          The statement of

reasons must show that the prosecutor has made an individualized

assessment of the defendant, giving due consideration to the

statutory   factors,     N.J.S.A.    2C:43-12(e),   and    evaluating    the

individual applicant's "amenability to rehabilitation," Roseman,

supra, 221 N.J. at 630 (quoting Nwobu, supra, 139 N.J. at 255).

The factors that must be considered include "the details of the

case, defendant's motives, age, past criminal record, standing in

the   community,   and    employment      performance[.]"     Id.   at   621

(alteration in original) (quoting Watkins, supra, 193 N.J. at

520); accord Denman, supra, 449 N.J. Super. at 376. The prosecutor

cannot ignore evidence bearing on the relevant factors in the

Guidelines and PTI statute.         State v. Lee, 437 N.J. Super. 555,

567-68 (App. Div. 2014), certif. denied, 222 N.J. 18 (2015).               At

a minimum, the prosecutor "should note the factors present in

defendant's background or the offense purportedly committed which

led [the prosecutor] to conclude that admission should be denied."

Nwobu supra, 139 N.J. at 249 (alteration in original) (quoting

State v. Sutton, 80 N.J. 110, 117 (1979)).

                                     21                             A-5084-15T3
      The     statement      of   reasons        "must      demonstrate          that        the

prosecutor has carefully considered the facts in light of the

relevant    law."         Wallace,      supra,    146    N.J.    at     584.        "[B]ald

declarations" that "merely parrot[] the statutory language without

providing any factual justification . . . are insufficient to

support PTI denial."         Roseman, supra, 221 N.J. at 627-29.

      "[T]he statement of reasons must not be vague," either.

Nwobu, supra, 139 N.J. at 249.              Rather, the prosecutor's reasons

for   rejection      of    the    PTI    application        must      be       stated    with

"sufficient     specificity        so    that     defendant       has      a     meaningful

opportunity     to    demonstrate        that    they    are    unfounded."             Ibid.

(citation omitted).

      Typically, a prosecutor's rejection letter addresses each of

the factors listed in N.J.S.A. 2C:43-12(e) and explains how each

factor   is    or    is    not    relevant       to   its      consideration            of    an

application.        Although plainly a preferred approach, it need not

be followed if the prosecutor's consideration of all appropriate

factors is evident from a reading of the statement of reasons.

That is not the case here.

                                           B.

      There    are    certain     glaring       deficiencies       in      the    rejection

letter relied upon as the prosecutor's statement of reasons.                                 Of

the seventeen factors listed in N.J.S.A. 2C:43-12(e), only two are

                                          22                                        A-5084-15T3
reflected in the statement of reasons: "(1) the nature of the

offense," 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."   Even as to these two factors, the rejection letter

merely notes defendant is charged with a second-degree offense and

parrots factor (17).   To the extent the rejection letter may be

viewed as invoking factors (11) and (14), it was only in conclusory

fashion.

     Statutory factors that plainly should have been considered

include: N.J.S.A. 2C:43-12(e)(2), (3), and (8) through (13). While

the prosecutor noted the degree of the offense, there was no

discussion of the circumstances of the offense.       See Roseman,

supra, 221 N.J. at 621; Watkins, supra, 193 N.J. at 520; Cannel,

New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-

12 (2017) (noting, "the circumstances of the crime rather than the

particular crime charged must be involved in the decision.")

Relevant to factors (2) and (10), the offense was discovered as

the result of a motor vehicle stop for tailgating.   The weapon was

not associated with any other crime and was revealed only because

defendant looked in the console for his credentials to comply with

the officer's request following a motor vehicle stop.    There was

nothing in the police reports to suggest that defendant was

                               23                           A-5084-15T3
anything other than fully cooperative with their commands – no

assaultive, suspicious or evasive behavior.

     Factor (3), the defendant's age and motivation were also

highly relevant factors.     It was dismissive of the prosecutor to

merely describe defendant as a first-time offender.         There was no

discussion of his age, personal history, standing in the community

or employment record.       See Roseman, supra, 221 N.J. at 621;

Watkins, supra, 193 N.J. at 520.

     At age twenty-six, this was defendant's first known contact

with the criminal justice system.          That means he had no juvenile

adjudications or charges, no charges that were dismissed and no

arrests for criminal or disorderly persons offenses.           And, as a

result, there is no evidence of a "continuing pattern of anti-

social behavior" (factor 8), any "record of criminal and penal

violations" that signal "a substantial danger to others" (factor

9), no "history of the use of physical violence toward others"

(factor 12), and no involvement with organized crime (factor 13).

     Because "juveniles are responsible for a large share of the

total   amount   of   crime, . . .    an   applicant's   juvenile    record

clearly is relevant to the question whether admission into a PTI

program 'can reasonably be expected to deter future criminal

behavior by an applicant,'" and "whether an applicant's history

includes 'the use of physical violence towards others[.]'"            State

                                     24                             A-5084-15T3
v. Brooks, 175 N.J. 215, 227-28 (2002) (alteration in original)

(citations omitted).    We note further that defendant expressed

remorse and acknowledged he exercised poor judgment in engaging

in this conduct.

     Although defendant's fear does not justify arming himself in

anticipation of the need to act in self-defense, it does provide

a non-criminal purpose for his possession of the firearm relevant

to factor (3).   His stated motivation was accepted as credible by

the Criminal Division manager.    The lack of any criminal history

bolstered that conclusion.   Yet, the rejection letter reflects no

consideration that defendant was motivated by fear rather than by

a motive consistent with the assumption underlying the presumption

against PTI, such as an intent to use the firearm to commit an

independent offense.

     All these factors weigh heavily in evaluating the likelihood

that a PTI applicant may be deterred from further criminal activity

without the need for criminal prosecution.    They were considered

by the Criminal Division in reaching the conclusion that defendant

was a suitable candidate for PTI but were not addressed in the

rejection letter.

     In addition to failing to adequately address the statutory

factors or conduct an individualized assessment of defendant, the

rejection letter did not apply the principle set forth in N.J.S.A.

                                 25                         A-5084-15T3
2C:43-12(b)(1): "Admission of an applicant into a program of

supervisory      treatment       shall     be       measured    according        to      the

applicant's      amenability          to    correction,         responsiveness             to

rehabilitation and the nature of the offense."                       See also Roseman,

supra, 221 N.J. at 621-22; State v. Mickens, 236 N.J. Super. 272,

278   (App.    Div.     1989)    (finding       a   patent     and    gross    abuse       of

discretion that warranted ordering defendant into PTI where "the

prosecutor      had     not     one   positive        word     to     say     about      the

rehabilitation standard, which is so fundamental a part of PTI"

and the defendant's amenability to rehabilitation).                      The rejection

letter demonstrates that defendant's PTI application was measured

based upon the nature of the offense to the exclusion of the other

statutorily mandated considerations, which require a focus on the

defendant's personal attributes.

      The record plainly shows the prosecutor failed to consider

all relevant factors in defendant's application or to make an

individualized assessment of him.

                                           C.

      To determine whether the rejection rose to the level of a

"patent and gross" abuse of discretion                       the trial court must

consider      whether    this     failure       clearly      subverted        the     goals

underlying PTI.       See Roseman, supra, 221 N.J. at 625.



                                           26                                       A-5084-15T3
     The Guidelines for Operation of Pretrial Intervention in New

Jersey adopted by the Supreme Court include an articulation of the

program's purposes:

          (1) to enable defendants to avoid ordinary
          prosecution by receiving early rehabilitative
          services expected to deter future criminal
          behavior; (2) to provide defendants who might
          be harmed by the imposition of criminal
          sanctions with an alternative to prosecution
          expected to deter criminal conduct; (3) to
          avoid     burdensome     prosecutions     for
          "victimless"   offenses;   (4)   to   relieve
          overburdened criminal calendars so that
          resources can be expended on more serious
          criminal matters; and (5) to deter future
          criminal behavior of PTI participants.

          [Nwobu, supra, 139 N.J. at 247 (citing
          Pressler & Verniero, supra, Guideline 1, at
          1233).]

     Pursuant to Guideline 2, "[a]ny defendant accused of crime

shall be eligible for admission into a PTI program," and such

eligibility   "is   broad   enough    to   include    all   defendants   who

demonstrate   sufficient    effort    to   effect    necessary   behavioral

change and show that future criminal behavior will not occur."

Pressler & Verniero, supra, Guideline 2, at 1234, see also Nwobu,

supra, 139 N.J. at 247-48.     Because the breadth of eligibility is

measured by the defendant's capacity to avoid future criminal

conduct, offense-related factors will not defeat eligibility in

appropriate cases.    See Caliguiri, supra, 158 N.J. at 39 ("Even

offenders charged with violent or first-degree offenses are not

                                     27                             A-5084-15T3
categorically ineligible.").   Guideline 3 explicitly provides for

consideration, under specific circumstances, of PTI applications

from persons who are not first offenders, Pressler & Verniero,

supra, Guideline 3(e), at 1234-35; are charged with more than one

offense, Nwobu, supra, 139 N.J. at 247-48; or are parolees or

probationers, Pressler & Verniero, supra, Guideline 3(f), at 1235.

Guideline 3(i), therefore calls for a "balance [to be] struck

between a defendant's amenability to correction, responsiveness

to rehabilitation and the nature of the offense."    Id., Official

Comment to Guideline 3, at 1237-38.

     The prosecutor made no effort to strike such a balance, in

contravention of Guideline 3(i).     Moreover, the narrow focus on

the nature of the offense, divorced from its circumstances and the

factors in defendant's background that led the Criminal Division

manager to conclude he was unlikely to reoffend, is at odds with

the goal of PTI to afford the opportunity to avoid criminal

prosecution to "all defendants" who can show "future criminal

behavior will not occur."

     The Official Comment to Guideline 1 notes that diversion "can

serve as sufficient sanction to deter future criminal conduct" in

appropriate cases; that some people "can be deterred from criminal

behavior by short term rehabilitative work or supervision" while

for others, "no more than a supervised pretrial probationary period

                                28                          A-5084-15T3
may be necessary when no extensive need for rehabilitative services

can be discerned."     Id., Official Comment to Guideline 1, at 1233.

Further, the public interest can be served when diversion "results

in the deterrence of future misconduct."           Ibid.

     These principles highlight the fact that the central purpose

of PTI is to "divert[] eligible defendants out of the criminal

process to their own advantage, society's and that of the criminal

justice system."      Mickens, supra, 236 N.J. Super. at 277.              The

relevant question is whether defendant can be deterred from future

criminal behavior and it is answered through an individualized

assessment of his amenability to refrain from such conduct.                The

label placed on the offense charged does not dictate the answer

and it is understood that some PTI applicants, like defendant,

will not require extensive rehabilitative services to accomplish

this goal.

     The     prosecutor   ignored    these   principles.     There   was    no

individualized       assessment     of     defendant's     amenability      to

correction.     It is also noteworthy that the prosecutor failed to

consider the deterrent value of the requirement imposed by N.J.S.A.

2C:43-12(g)(3).       Because he was charged with a second degree

offense, defendant would be required to enter a guilty plea that

would   be    held   in   abeyance       pending   defendant's   successful

completion of the PTI program.            Yet, there was no consideration

                                     29                              A-5084-15T3
as to whether this veritable sword of Damocles would adequately

serve   any    of    the   legitimate    prosecution    interests   regarding

defendant's offense or provide sufficient incentive for defendant

to be deterred from future criminal activity.

     Despite the manifest inadequacy of the rejection letter, the

prosecutor has maintained throughout that its rejection was based

upon a full and fair consideration of defendant's application.

"Failure      to    provide   'comprehensive   and     flexible'    evaluation

'undermine[s] the efficacy of PTI.'"           Caliguiri, supra, 158 N.J.

at 39 (alteration in original) (citations omitted).

                                        D.

     In the event the trial judge concludes the rejection here

constituted a patent and gross abuse of discretion, the next

decision concerns the appropriate remedy.                In Mickens, supra,

Judge Pressler succinctly described the task at hand:

              [T]he appellate court must distinguish between
              prosecutorial abuse consisting of the failure
              to consider all relevant factors specific to
              the individual candidate and prosecutorial
              abuse represented by a judgment reached after
              a full consideration. In the first instance,
              it is the obligation of the reviewing court
              to    remand    to    the    prosecutor    for
              reconsideration. In the second instance, the
              reviewing court is free to conclude that the
              abuse "arises from a clear error of judgment,"
              and, if it does so, it "may order that a
              defendant be admitted into the program.



                                        30                             A-5084-15T3
           [236 N.J. Super. at 277-78 (quoting State v.
           DeMarco, 107 N.J. 562, 567 (1987)).]

     Although a remand to the prosecutor is the customary remedy,

that is not the required disposition even when the prosecutor's

error is merely an abuse of discretion and does not rise to the

level of a patent and gross abuse of discretion.          The reviewing

court should determine that a remand will "serve a useful purpose."

Caliguiri, supra, 158 N.J. at 43 (citing Dalglish, supra, 86 N.J.

at 509).

     Although these examples are not exclusive, a useful purpose

is served when "the prosecutor failed to consider all relevant

factors," Wallace, supra, 146 N.J. at 583-84; when the prosecutor

mistakenly   applied   a   presumption   of   PTI   ineligibility     under

Guideline 3(i) to a defendant not charged with one of the included

crimes, State v. Coursey, 445 N.J. Super. 506, 512 (App. Div.

2016); when the rejection was improperly based upon a prosecutor's

policy, State v. Baynes, 148 N.J. 434, 450 (1997), or a directive

from the Attorney General, Caliguiri, supra, 158 N.J. at 45, rather

than upon an individualized assessment of the PTI applicant; or

when the Court has announced a new interpretation of a Guideline

to be considered in evaluating the defendant's application, K.S.,

supra, 220 N.J. at 199.     What is common to each of these examples

is that the rejection decision rested upon a legal error that


                                  31                                A-5084-15T3
could readily be remedied on remand pursuant to the reviewing

court's direction.

     A different course of action is appropriate when the error

represents an error in judgment.

           It is unlikely, on the other hand, that a
           remand would serve a useful purpose if the
           prosecutor's decision was based on appropriate
           factors   but,   clearly   and   convincingly,
           amounted to a plain error of judgment
           equivalent to a patent and gross abuse of
           discretion. In that situation it is usually
           appropriate for a court directly to order
           admission to PTI.

           [Wallace, supra, 146 N.J. at 584.]

     In Roseman,1 supra, the Court acknowledged that a remand was

the customary remedy for an inadequate statement of reasons by the

prosecutor.   221 N.J. at 629.    Nonetheless, the Court concluded a

remand was inappropriate because the "circumstances show clearly

and convincingly that there has been a patent and gross abuse of

discretion by the prosecutor which constituted a clear error in

judgment that will 'subvert the goals underlying [PTI].'"         Id. at

629-30   (alteration   in   original)   (citation   omitted);   see   also

Wallace, supra, 146 N.J. at 582 (noting a reviewing court may

order a defendant into PTI if the defendant can "clearly and


1
    In Roseman, the defendants were charged with second-degree
official misconduct, which creates a presumption against
acceptance into PTI under both the Guidelines and N.J.S.A. 2C:43-
12(b). 221 N.J. at 617, 618-19.

                                  32                             A-5084-15T3
convincingly establish that the prosecutor's refusal to sanction

admission into the program was based on a patent and gross abuse

of . . . discretion."     (alteration   in   original)   (citation

omitted)).   "[A]n error in applying guidelines to the facts of the

case" will rise to a "clear error of judgment" if it "is one that

'could not have reasonably been made upon a weighing of the

relevant factors.'"     Nwobu, supra, 139 N.J. at 253-54 (quoting

State v. Roth, 95 N.J. 334, 366 (1984)).

     At the time the assistant prosecutor announced at defendant's

arraignment that the State would oppose his PTI application, it

was evident that the statement was made without any access to or

consideration of defendant's personal background or amenability

to correction.    The State has not contended otherwise.    If the

rejection here was not based on the offense charged, per se, the

rejection letter was not just the prosecutor's opportunity to

elaborate; it was the prosecutor's obligation to show there had

been an individualized assessment of defendant and the offense

committed, applying the statutory factors.       The statement of

reasons relied upon by the State utterly failed to do so.

     Certainly, the nature of the offense is a relevant factor,

but the rejection letter also includes an implicit conclusion —

that defendant is not amenable to correction.    That factor is at

the core of any assessment of a defendant's PTI application.    Yet,

                                33                          A-5084-15T3
despite the State's persistence it has fully and fairly considered

all relevant factors, there is no evidence that the prosecutor

properly   considered   and   weighed   defendant's   amenability    to

correction.

     We therefore remand this matter to the trial judge for further

proceedings consistent with this opinion.         We do not retain

jurisdiction.




                                 34                           A-5084-15T3
