                                       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                                 NOT FOR PUBLICATION WITHOUT THE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-4875-17T4

STATE OF NEW JERSEY,

           Plaintiff-Appellant,

v.

ERIK S. ROBINSON,

           Defendant-Respondent.


                    Submitted January 24, 2019 – Decided April 22, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Indictment No. 17-11-
                    0885.

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for appellant (Bryant J. Flowers, Assistant
                    Prosecutor, on the brief).

                    Helmer, Conley & Kasselman, PA, attorneys for
                    respondent (Jack J. Lipari, of counsel and on the brief).

PER CURIAM
      The State appeals defendant Erik Robinson's admission into the pretrial

intervention program (PTI), asserting that its rejection of defendant's application

into the program was a reasonable exercise of prosecutorial discretion.

Defendant was indicted for second-degree unlawful possession of a handgun

without a permit, N.J.S.A. 2C:39-5(b)(1). We agree and reverse.

      On April 23, 2017, Paulsboro police officers investigated reports of

narcotics activity in the parking lot of a park. One of the officers det ected the

odor of marijuana emanating from defendant's car, and asked him and his

passenger if they were smoking the drug. The passenger admitted they had been

doing so, and the police proceeded to search the vehicle. While it was searched,

defendant appeared very nervous and told the officers that there "might" be a

handgun in the center console. A focused search for the weapon revealed an

unloaded semi-automatic pistol in the glove box, and a semi-automatic handgun

magazine containing fourteen bullets in the center console.

      It is undisputed that defendant, a Delaware resident, purchased the

handgun lawfully. It is also undisputed that in Delaware a handgun owner may

openly carry it, however, they may not conceal their possession of such

weapons.




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                                        2
      The State contends that defendant's possession of the weapon at the time

of arrest violated even Delaware law. Defendant urges us to reach a contrary

opinion, because the gun was not concealed on his person or within his

immediate reach. From that premise, he argues, it was not concealed and thus

not possessed in violation of that State's laws.

      On May 7, 2018, defendant submitted an application for a license to carry

a concealed deadly weapon in Delaware. He did not have such a license at the

time of the offense thirteen months earlier. Defendant is twenty-three years old,

fully employed, the father of a toddler, and enjoys the support of family, friends,

and an employer. Defendant has no criminal history of any consequence to this

PTI application—only an August 20, 2017 Delaware arrest for "offensive

touching" and multiple motor vehicle violations.

      After the initial program director's denial, the prosecutor rejected

defendant's application as well. She initially noted that the charge, second-

degree in nature, required a joint application. See Rule 3:28-1(d)(1). The

rejection letter went on to discuss the criteria found in N.J.S.A. 2C: 43-12 and

Rule 3:28, and the appropriate guidelines. 1       The rejection letter stated in



1
  This matter is being considered, in the absence of comment on the subject by
counsel, under the prior version of Rule 3:28.
                                                                           A-4875-17T4
                                        3
pertinent part that, as to factor seven, the needs and interests of society were

served by keeping illegal guns off the streets. As to factor ten, carrying a gun

and loaded magazine clip in a vehicle "with no lawful purpose could lead to

future assaultive or violent behavior." The prosecutor therefore considered the

prosecution of individuals who unlawfully possess handguns to be necessary to

deter defendant and others. As to factor fourteen, individuals charged with

second-degree crimes required traditional prosecution. The letter concluded that

society would not benefit by allowing defendant admission into PTI.

      In the State's brief in opposition to defendant's appeal of the PTI rejection

and in oral argument during the hearing, the prosecutor argued that defendant's

use of drugs while in possession of the weapon, failure to have an appropriate

permit to carry a concealed weapon in his home state, and failure to immediately

disclose the presence of the gun to police were additional considerations

justifying the rejection of defendant's application.

      The judge admitted defendant into the program by way of a twenty-five-

page opinion, assessing each factor enumerated in the N.J.S.A. 2C:43-12(e)

guidelines anew. The judge prefaced his discussion by acknowledging that

applicants charged with first and second-degree offenses are not to be admitted

except on the joint application of the defendant and the prosecutor. He also


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                                        4
observed that the prosecutor's original rejection letter "demonstrated a lack of

familiarity with the specific facts of this case[,]" for example, by referring to

society's interest in keeping illegal guns off the street when the gun in question

had been lawfully purchased.

      The judge also included a discussion of three other PTI admissions,

consented to by the prosecutor, which he considered to be factually similar to

defendant's. He ended with the following:

            Given [d]efendant's lack of criminal history, the mere
            possessory nature of the offense, the lack of any
            evidence tending to show any use or intended use of the
            handgun, and the State's treating similar cases
            differently, the prosecutor's rejection of [d]efendant's
            PTI application was a patent and gross abuse of
            discretion. Without justification, the State's denial of
            this defendant's PTI application is arbitrary and
            captious [sic] in light of the State's PTI consent in other
            similar cases.

      The State raises the following points on appeal:

            POINT I. THE LOWER COURT WAS INCORRECT
            IN GRANTING THE DEFENDANT'S ADMISSION
            INTO PRETRIAL INTERVENTION

            POINT II.      THE LOWER COURT'S RULING
            GRANTS AN EXCEPTION TO THE MANDATORY
            MINIMUM WHICH IS IN OPPOSITION TO
            N.J.S.[A.] 2C:43-6.2




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                                        5
We address only the first claim of error—that defendant's admission into PTI

should be reversed—because his rejection from the program was not a patent

and gross abuse of discretion.

      PTI is a "diversionary program through which certain offenders are able

to avoid criminal prosecution by receiving early rehabilitative services expected

to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995).

PTI was initially created by Rule 3:28 and was later established as a statewide

program pursuant to N.J.S.A. 2C:43-12. "Thus, since 1979, PTI has been

governed simultaneously by the Rule and a statute which 'generally mirror' each

other." State v. Wallace, 146 N.J. 576, 582 (1996) (citation omitted).

      Rule 3:28-1(d)(1) provides that a "person who is charged with a crime, or

crimes, for which there is a presumption of incarceration or a mandatory

minimum period of parole ineligibility" is ineligible for PTI without

prosecutorial consent. Rule 3:28-3(b) describes the application process for

persons ineligible for PTI without a prosecutor's consent. The prosecutor's

withholding of consent is subject to appeal as set forth in Rule 3:28-6. See

Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:28-1 (2019).

      Rule 3:28-4(a) requires consideration of a PTI application based on the

criteria set forth in N.J.S.A. 2C:43-12(e) as well as those found in Rule


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                                       6
3:28-4(b). Defendants charged with a first or second degree crime must also

enter a guilty plea prior to admission into PTI: "[t]o be admitted into [PTI], a

guilty plea must be entered for a defendant who is charged with: . . . a first or

second degree crime[.]" Rule 3:28-5(b)(2); see also N.J.S.A. 2C:43-12(g)(3).

      Determining which defendants should be diverted into the PTI program

"is a quintessentially prosecutorial function."     Wallace, 146 N.J. at 582.

Prosecutors have broad discretion in making these decisions and enjoy

"enhanced or extra" deference. State v. Negran, 178 N.J. 73, 82 (2003) (citation

omitted); State v. K.S., 220 N.J. 190, 199-200 (2015).               Their PTI

recommendations should take into consideration the non-exhaustive list of

seventeen statutory factors enumerated in N.J.S.A. 2C:43-12(e).         State v.

Roseman, 221 N.J. 611, 621 (2015).

      If a prosecutor rejects a PTI application, "then a written statement of

reasons must be provided." State v. Caliguiri, 158 N.J. 28, 36 (1999). That

statement of reasons "may not simply 'parrot' the language of relevant statutes."

Id. at 37 (citation omitted). A PTI determination requires the prosecutor to make

an individualized assessment of the defendant, considering his "amenability to

correction" and potential "responsiveness to rehabilitation." Roseman, 221 N.J.

at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).


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                                       7
      The trial court's review of PTI decisions, however, is "severely limited"

and "serves to check only the 'most egregious examples of injustice and

unfairness.'" Negran, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360,

384 (1977)). To overturn a prosecutor's rejection, a defendant must "clearly and

convincingly establish that the prosecutor's decision constitutes a patent and

gross abuse of discretion." Watkins, 193 N.J. at 520 (citations omitted). This

means a decision that "has gone so wide of the mark sought to be accomplished

by PTI that fundamental fairness and justice require judicial intervention." Ibid.

(quoting Wallace, 146 N.J. at 582-83). Neither the trial nor appellate courts

should substitute their own discretion for that of the prosecutor, "even when the

prosecutor's decision is one which the trial court disagrees with or finds to be

harsh[.]" State v. Waters, 439 N.J. Super. 215, 237 (2015) (citation and internal

quotations omitted).

      An abuse of discretion exists when a defendant can prove that the PTI

denial "(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." Roseman, 221 N.J. at 625 (quoting State

v. Bender, 80 N.J. 84, 93 (1979)). Nonetheless, "[i]n order for such an abuse of

discretion to rise to the level of 'patent and gross,' it must further be shown that


                                                                            A-4875-17T4
                                         8
the prosecutorial error complained of will clearly subvert the goals underlying

[PTI]." Ibid. (quoting Bender, 80 N.J. at 93).

      The PTI guidelines require defendants charged with first- or second-

degree offenses, who are presumptively ineligible for admission, to demonstrate

compelling extraordinary circumstances or "something 'idiosyncratic' in his or

her background" in order to overcome the presumption. Nwobu, 139 N.J. at 252

(quoting State v. Jabbour, 118 N.J. 1, 7 (1990)); Pressler & Verniero, Current

N.J. Court Rules, cmt. 2 on R. 3:28-1 (2019).

      Defendant    did   not   demonstrate   some    compelling    extraordinary

circumstance, or something idiosyncratic in his background that would have

overcome the presumption against admission. Without reaching the issue of the

procedural roadblocks given the nature and degree of the charge, there is nothing

so compelling about the circumstances of the arrest, or so idiosyncratic about

defendant's background, to justify admission over the prosecutor's objection.

Doubtless, any conviction will have long-term serious consequences to a

defendant who previously led a blameless life. But that harsh reality is true in

every case involving similarly situated defendants. Therefore, having failed to

overcome the presumption against admission, defendant should not have been

admitted into the program by the court.


                                                                         A-4875-17T4
                                       9
      Nor do we agree with the trial judge that the prosecutor placed excessive

weight on the nature of the offense when considering the factors enumerated in

the guidelines. Although the prosecutor's letter was somewhat cursory, we glean

from it that the prosecutor assessed the entire picture. The letter should have

more fully expanded on an individualized assessment of defendant and the crime

he committed. But the prosecutor took into account two facts she considered

consequential: that in defendant's home state, his possession was unlawful, and

that immediately before the discovery of the weapon defendant had been

consuming drugs.

      We therefore conclude that the Law Division judge substituted his own

judgment for that of the prosecutor. As we noted, his opinion reassessed each

factor found in the guidelines, rather than focusing on whether the prosecutor's

rejection was a patent and gross abuse of discretion. The standard is not whether

from an individual's perspective he should be given the opportunity to

successfully complete PTI, or whether from the judge's perspective a poor

decision has been made.

      The prosecutor's rejection was not a patent and gross abuse of discretion

or an egregious example of injustice and unfairness. See Negran, 178 N.J. at

82.   The prosecutor's decision, although it would have benefitted by


                                                                         A-4875-17T4
                                      10
amplification, did not go so wide of the mark as to offend fundamental fairness

and require judicial intervention. See Waters, 439 N.J. Super. at 236.

      Which brings us to a final point. The judge's inclusion of other PTI

admissions of which he was aware, and that he believed were relevant to his

rejection of the prosecutor's decision, was improper. Those other matters were

not subject to judicial notice. See N.J.R.E. 201. They were not outlined on the

record based on a State v. Benjamin application by defendant for the

information. 228 N.J. 358, 374-75 (2017). The State had no opportunity to

distinguish between those examples and the case at hand. In sum, the judge

improperly admitted defendant into the program, as the prosecutor's rejection

was not a patent and gross abuse of discretion.

      Reversed.




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