                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2957-17T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JILL PETRUSKA,

     Defendant-Respondent.
__________________________

                    Argued telephonically December 10, 2018 –
                    Decided May 20, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-07-1843.

                    Frank J. Ducoat, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for appellant (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Frank J. Ducoat, of
                    counsel and on the brief).

                    Patrick J. Caserta argued the cause for respondent.
PER CURIAM

      The State appeals from the February 21, 2018 order of the Law Division

directing defendant's admission into the pretrial intervention (PTI) program,

N.J.S.A. 2C:43-12; Rule 3:28-1 to -10, over the State's objection. We reverse

and remand for the prosecutor's reconsideration of defendant's application.

                                        I.

      On September 14, 2016, in response to a complaint of a foul odor, a Nutley

police officer gained entry into defendant's apartment. He discovered several

cat carcasses on the floor in varying states of decomposition. Some of the

remains were skeletal. Other carcasses appeared to have been eaten by living

cats in the apartment who looked severely neglected and unhealthy. Garbage

and litter boxes overflowing with fecal matter were scattered throughout the

apartment. The toilet bowls were completely dry, the cats having consumed all

of the water in them. The deplorable conditions and stench made it necessary

for the officer to seek the assistance of the fire department's ventilation

equipment and the protection of a hazardous materials suit before fully entering

the premises.

      Thirteen live cats were removed from the apartment. Animal control

officers estimated the number of dead cats in the premises at twelve, but reported


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                                        2
that the total could be higher because "a large amount of them had been gorged

upon and ingested by the living cats." They tallied the number of dead cats by

counting skulls, but could not account for all of the detached feline body parts

found in the apartment. One cat died of malnutrition the day after its removal.

      Defendant appeared at the apartment while recovery operations were

underway. She apologized for the condition of the residence and admitted that

she had not lived there for several weeks. She blamed her absence on the recent

death of a pet dog and her need to care for a sick relative, claiming that she

stopped by the apartment to feed the cats periodically. Defendant later claimed

that she only had three cats and did not know how the approximately two dozen

other cats got into her apartment. Still later, defendant told a therapist that she

had arranged for someone else to care for the cats while she was not residing in

the apartment.

      An Essex County grand jury charged defendant with twenty-six counts of

third-degree animal cruelty, N.J.S.A. 4:22-17(c)(1) to (3) and N.J.S.A. 4:22-

17(d)(1)(a) to (b). Among other evidence, the grand jury saw photographs of

the conditions in the apartment, including photographs of cat carcasses,

skeletons, and feline body parts on the floor, and heard testimony from

veterinarians about the desperate physical condition of the living cats in the


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                                        3
residence. A veterinarian testified that some of the cats had reproduced in the

apartment and consumed their offspring to survive. 1

      Defendant sought admission into the PTI program. On October 4, 2017,

an assistant prosecutor issued a written rejection of defendant's application. The

assistant prosecutor, citing Guideline 3(i) to Rule 3:28, determined that

defendant was presumptively ineligible for PTI because the charged offenses

were "deliberately committed with violence or threat of violence against another

person[.]" Guidelines for Operation of Pretrial Intervention in New Jersey,

Pressler & Verniero, Current N.J. Court Rules, Guideline 3, following R. 3:28

at 1235 (2017). While recognizing that cats are not "persons," the assistant

prosecutor determined that the presumption against admission applies because

the cats were "victims" that were "particularly vulnerable or incapable of

resistance." In support of this determination, the assistant prosecutor relied on




1
  In addition, Nutley officials issued defendant forty-two ordinance violations:
twenty-six summonses for prohibited activities and treatment, Nutley Twp.,
N.J., Animals Code § 217-25, eight summonses for having an unlicensed cat,
Nutley Twp., N.J., Animals Code § 217-30, and eight summonses for having an
unvaccinated cat, Nutley Twp., N.J., Animals Code § 217-31.



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                                        4
N.J.S.A. 2C:44-1(a)(2), which characterizes the perpetration of criminal acts

against such victims as an aggravating factor for sentencing purposes .2

      Having applied the presumption against admission into the program, the

assistant prosecutor determined that defendant "has not and cannot establish

sufficient compelling reasons overcoming her presumptive ineligibility" by

demonstrating something "extraordinary or unusual [or] idiosyncratic" in her

background making her amenable to rehabilitation. See State v. Nwobu, 139

N.J. 236, 252 (1995).

      The assistant prosecutor considered a number of factors in reaching her

conclusion, including what she described as defendant's "clear pattern of anti-

social behavior" evidenced by her "either purposely, knowingly, or recklessly

[having] deprived these animals of life sustaining food and water" for an

extended period of time. In reaching this conclusion, she relied, in part, on


2
   Effective September 1, 2017, Guideline 3(i) was amended to eliminate the
presumption against admission to the PTI program for a defendant charged with
an offense "deliberately committed with violence or threat of violence against
another person[.]" The revised Guideline 3(i) mirrored the text of N.J.S.A.
2C:43-12(b)(2)(a). Effective July 1, 2018, the Supreme Court deleted all of the
Rule 3:28 Guidelines and adopted Rules 3:28-1 to -10 which incorporate much
of the substance of the Guidelines as they then existed. Defendant's alleged
offenses and her application for admission to PTI both took place prior to
September 1, 2017. The assistant prosecutor's denial of defendant's application
was issued shortly after September 1, 2017, but applied the prior version of
Guideline 3(i), which contained the presumption at issue.
                                                                           A-2957-17T1
                                       5
photographs of the advanced state of decomposition of the deceased cats. In

addition, the assistant prosecutor noted that the police report states that the

management of defendant's building received a complaint of a foul odor

emanating from defendant's prior apartment, resulting in her relocation. The

assistant prosecutor also characterized defendant as a threat to other animals and

people, described the alleged crimes as violent, and determined that the need for

prosecution outweighed any benefit that defendant and society might derive

from supervised treatment. The assistant prosecutor found defendant's age ,

education, and lack of criminal record as mitigating factors.

      Defendant appealed the assistant prosecutor's decision to the Law

Division.   On February 21, 2018, the trial court issued a written decision

reversing the denial of defendant's PTI application. The court determined that

the assistant prosecutor misapplied Guideline 3(i), as well as four other factors

when denying the application. Specifically, the court noted that Guideline 3(i),

as it existed at the time of the offense, created a presumption against admission

to the PTI program for defendants alleged to have committed crimes involving

the deliberate use of "violence or threat of violence against another person[.]"

The court concluded that domestic animals are not persons within the meaning




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                                        6
of the Guideline and, as a result, the presumption against eligibility did not apply

to defendant.

      The trial court also concluded that the assistant prosecutor incorrectly

considered defendant's alleged crimes to be part of a continuing pattern of anti-

social behavior. The court found that it was an error for the State to rely on the

report of a complaint of a foul odor emanating from defendant's prior apartment

as evidence of a pattern of behavior, because the record contained no evidence

with respect to what generated the odor on the prior occasion. The court did

not, however, address the assistant prosecutor's finding that defendant's alleged

criminal acts took place over an extended period of time. This may be explained

by the trial court's refusal, despite several requests, to view the photographic

evidence depicting cat carcasses decomposed to the point of being full skeletons

and feline body parts gnawed from deceased animals strewn on the apartment's

floor. These conditions surely did not evolve over a short period of time and

belied defendant's claim to have periodically stopped by the apartment to feed

the cats or to have arranged for someone else to take care of the cats.

      With respect to its refusal to view the photographic evidence, the court

stated: the "State appears to be overcome by emotion as the result of the . . .

harm" defendant's conduct inflicted on the cats and is "trying to impute a [s]tate


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                                         7
of mind upon [defendant] that is not supported by credible evidence" and that

the State's "only purpose" in submitting the photographs "would be to try to

influence the [c]ourt to make an emotional decision, the same as had apparently

already been done by the State in denying [defendant's] application."

      Finally, the court found that the assistant prosecutor failed to consider

mitigating factors, including a lack of a documented mental health history and

the effect that a criminal record would have on defendant's ability to find

employment. The trial court also concluded that the State erroneously found

that defendant posed a continuing threat to others because animals are not

"others" within the meaning of the PTI statute and Guidelines.

      The trial court concluded that the assistant prosecutor's incorrect

application of a presumption against eligibility and her erroneous findings with

respect to several statutory factors constituted a patent and gross abuse of

discretion. The court noted that it "would normally remand the matter back to

the prosecutor for reconsideration of [defendant's] application[.]" However, the

court stated that it "believes that a remand would result in a rubber stamped

denial of the application and controvert the rehabilitative goals of the PTI

program." On February 21, 2018, therefore, the trial court entered an order

admitting defendant to the PTI program for two years. The court ordered that


                                                                        A-2957-17T1
                                       8
defendant shall: (1) not own, shelter, or be the primary caretaker for any

domestic animal during her supervision; (2) perform 200 hours of community

service at a local animal shelter or other appropriate agency; (3) attend

psychological counseling; and (4) pay mandatory fines and fees.

     This appeal followed, resulting in a stay of the order. R. 2:9-3(d). The

State makes the following arguments for our consideration:

           POINT I

           THE JUDGE BELOW SUBSTITUTED HIS
           JUDGMENT FOR THE PROSECUTOR'S WHEN HE
           ADMITTED DEFENDANT INTO THE PTI
           PROGRAM OVER THE STATE'S OBJECTION.

           A.    PTI & STANDARD OF REVIEW.

           B.  THE STATUTORY PRESUMPTION AGAINST
           ADMISSION INTO PTI FOR DEFENDANTS
           CHARGED     WITH    CRIMES     INVOLVING
           "VIOLENCE OR THE THREAT OF VIOLENCE"
           APPLIES TO ANIMAL CRUELTY CASES, AND IT
           APPLIES TO THE FACTS OF THIS CASE.

           C.  FACTORS (1), (2), (8), AND (9) ALL
           SUPPORT REJECTION OF DEFENDANT'S PTI
           APPLICATION.

               i.  FACTORS (1) AND (2) – THE NATURE
           OF THE OFFENSE AND THE FACTS OF THE
           CASE.




                                                                     A-2957-17T1
                                      9
                ii. FACTOR      (8)   –   WHETHER
            DEFENDANT'S CONDUCT CONSTITUTES A
            PATTERN OF ANTI-SOCIAL BEHAVIOR.

                iii. FACTOR (9)  -   DEFENDANT'S
            CRIMINAL RECORD AND THE EXTENT TO
            WHICH SHE MAY PRESENT "A SUBSTANTIAL
            DANGER TO OTHERS.

            D.  FACTORS (5) AND (6) ARE INAPPLICABLE
            TO THIS CASE.

            E.  EVEN ASSUMING THE PROSECUTOR
            MISAPPLIED ONE OR MORE FACTORS, HER
            DECISION WAS NOT A PATENT AND GROSS
            ABUSE OF DISCRETION.

            F.  IN THE ALTERNATIVE, THE JUDGE
            INAPPROPRIATELY ORDERED DEFENDANT
            INTO PTI OVER THE STATE'S OBJECTION
            RATHER THAN REMAND THE CASE BACK TO
            THE PROSECUTOR FOR RECONSIDERATION.
            FURTHER, THE JUDGE'S COMMENTS REQUIRE
            THAT ANY FURTHER PROCEEDINGS TAKE
            PLACE BEFORE A DIFFERENT JUDGE.

                                     II.

      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)). As a result, judicial review of a

prosecutor's decision to deny a defendant admission into the PTI program is

"severely limited." State v. Negran, 178 N.J. 73, 82 (2003). "Reviewing courts


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                                     10
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 reverse

"only the most egregious examples of injustice and unfairness" in the PTI

application process. Nwobu, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J.

Super. 106, 111 (App. Div. 1993)). To overturn a rejection of a PTI application,

a defendant must "clearly and convincingly establish that the prosecutor's

refusal to sanction admission into the program was based on a patent and gro ss

abuse of . . . discretion[.]" Wallace, 146 N.J. at 582 (quoting State v. Leonardis,

73 N.J. 360, 382 (1977)).      "[W]e review the [trial court's] reversal of the

prosecutor's decision de novo." Waters, 439 N.J. Super. at 226.

      "PTI was established initially by Rule 3:28 in 1970." Roseman, 221 N.J.

at 621. "In 1979, the Legislature . . . establish[ed] PTI as a statewide program

pursuant to N.J.S.A. 2C:43-12." Ibid. "Thus, PTI programs are 'governed

simultaneously by the Rule and the statute which "generally mirror[]" each

other.'" Ibid. (alteration in original) (quoting State v. Watkins, 193 N.J. 507,

517 (2008)).

      We begin our analysis with the trial court's conclusion that Guideline 3(i),

as it existed at the time of the alleged offenses, did not create a presumption that

defendant is ineligible for admission into the PTI program. On the date of the


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                                        11
alleged offenses, the Guideline provided that "[i]f the crime [alleged] was . . .

deliberately committed with violence or threat of violence against another

person . . . the defendant's application should generally be rejected." We think

it too plain to require extended discussion that a cat is not a person within the

meaning of Guideline 3(i), as it existed at the time of the alleged offenses.

      We recognize that since 1996 the Legislature has expanded criminal

liability and increased penalties for abuse of animals. See L. 1996, c. 64 §1

(elevating animal cruelty from a disorderly persons offense); L. 2001, c. 229, §1

(making certain forms of animal cruelty and abuse a fourth-degree crime); L.

2003, c. 232, §1 (making certain forms of animal cruelty and abuse a third-

degree crime); L. 2005, c. 105, § 1 (expanding criminal liability to those who

indirectly inflict cruelty on an animal). Yet, the Legislature has not bestowed

on animals the status of "person" for purposes of criminal liability.

      Nor, as the State argues for the first time on appeal, does N.J.S.A. 2C:43-

12(b)(2) create a presumption against defendant's admission to the PTI program.

The statute provides, in relevant part:

            There shall be a presumption against admission into a
            program of supervisory treatment for:

            (a) a defendant who was a public officer or employee
            whose offense involved or touched upon his public
            office or employment; and

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                                          12
            (b) a defendant charged with any crime or offense
            involving domestic violence, as defined in subsection
            a. of section 3 of P.L. 1991, c. 261 (N.J.S.A. 2C:25-19)
            if the defendant committed the crime or offense while
            subject to a temporary or permanent restraining order
            issued pursuant to the provisions of the "Prevention of
            Domestic Violence Act of 1991,", P.L. 1991, c. 261
            (N.J.S.A. 2C:25-17 et al.) or if the crime or offense
            charged involved violence or the threat of violence.

            [N.J.S.A. 2C:43-12(b)(2)(a) to (b).]

      To be presumptively ineligible for admission to the PTI program, a

defendant must be either: (a) a public officer or employee charged with an

offense that involved or touched on his or her public office or employment; or

(b) charged with a crime or offense involving domestic violence, if one of two

additional conditions are met. A defendant charged with a crime or offense

involving domestic violence is presumptively ineligible for admission into the

PTI program only if (1) the crime or offense charged was committed while the

defendant was subject to a temporary or permanent restraining order, or if (2)

the crime or offense charged involved violence or the threat of violence.

Defendant is not a public officer or employee and she was not charged with a

crime or offense involving domestic violence. She is not, therefore, subject to

a presumption against admission to the PTI program.



                                                                       A-2957-17T1
                                      13
      The State misreads the second condition applicable to defendants charged

with a crime or offense involving domestic violence as applying to a defendant

charged with any crime or offense involving violence or the threat of violence.

The unambiguous structure of the statute, however, creates only two categories

of defendants presumed to be ineligible for admission into the PTI program and

the conditional phrase following "or if" in the statute modifies the second of

those categories: "a defendant charged with any crime or offense involving

domestic violence, as defined in subsection a. of section 3 of P.L.1991, c. 261

(C.2C:25-19) . . . ."

      Alleged crimes and offenses involving violence, but not involving

domestic violence, are addressed in a different provision of the statute. N.J.S.A.

2C:43-12(e)(10) provides that

             [p]rosecutors and program directors shall consider in
             formulating their recommendation of an applicant's
             participation in a supervisory treatment program,
             among others, the following criteria:

                   ....

             (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[.]

There is, therefore, no statutory presumption against admission into the PTI

program for a defendant charged with violent crimes not involving domestic

                                                                          A-2957-17T1
                                       14
violence. Instead, the violent nature of the alleged crimes and their possible

injurious consequences are factors to be considered along with many other

factors in the application process.

      We, therefore, agree with the trial court's conclusion that the assistant

prosecutor erred by applying a presumption against defendant's admission into

the PTI program. We find error, however, in the trial court's decision directing

defendant be admitted to the program.

      In State v. Coursey, 445 N.J. Super. 506, 512 (App. Div. 2016), we held

that a prosecutor's erroneous application of a presumption against admission into

the PTI program "requires that we reverse the PTI order on appeal and remand

. . . to the prosecutor for reconsideration ab initio." "[R]emand to the prosecutor

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

supplanting the prosecutor's primacy in determining whether [pretrial

intervention] is appropriate in individual cases.'" State v. K.S., 220 N.J. 190,

200 (2015) (second alteration in the original) (quoting State v. Dalglish, 86 N.J.

503, 514 (1981)).

      We see no basis for the trial court's departure from the holding in Coursey.

The record, while evidencing the assistant prosecutor's spirited defense of the

denial of defendant's PTI application, does not support the trial court's


                                                                           A-2957-17T1
                                       15
conclusion that a remand to the prosecutor would result in a "rubber stamp" of

the prior decision. Nor do we condone the trial court's refusal to view the

photographic evidence offered by the State. The evidence is relevant to disprove

defendant's claim to have stopped by the apartment periodically to feed the cats,

given the advanced state of decomposition of feline remains, the

dismemberment of deceased animals, and other conditions depicted in the

photographs.   It is difficult to imagine an accurate review of the assistant

prosecutor's denial of defendant's application could be undertaken by a court

that refuses to review the evidence on which the assistant prosecutor relied in

reaching that decision. Because the judge who decided this matter has already

engaged in weighing the evidence and expressed his opinion on the ability of

the prosecutor's office to render a fair decision on defendant's PTI application,

we direct that should the matter return to the trial court after remand, any future

decision with respect to defendant's application be made by a different judge.

See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986).

      Reversed and remanded for the prosecutor's reconsideration of defendant's

application for admission to the PTI program. We do not retain jurisdiction.




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                                       16
