                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1351-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FEDERICO ENSASTEGUI-DIAZ,

     Defendant-Appellant.
______________________________

                    Submitted November 19, 2019 – Decided December 6, 2019

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Accusation No. 18-02-
                    0123.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (David Michael
                    Liston, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Federico Ensastegui-Diaz appeals the September 20, 2018

order denying his application for admission into the pretrial intervention

program (PTI) after he was charged with two counts of second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and two counts of

third-degree endangering the welfare of another person, N.J.S.A. 2C:24-

7.1(a)(3). We affirm.

                                       I.

      On January 21, 2017, defendant, then age thirty-one, operated a motor

vehicle while intoxicated and with a suspended license. Two of his children,

ages one and two at the time, and their mother, were in the backseat. The one-

year-old child was not restrained in an appropriate car seat. Almost a year later

on January 3, 2018, defendant applied for admission to PTI. The assistant

prosecutor informed defense counsel that the PTI program director was not

recommending acceptance.

      Consequently, on February 8, 2018, defendant waived indictment and was

charged under Middlesex County Accusation No. 18-02-0123 with two counts

of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2)

(counts one and two), and two counts of third-degree endangering the welfare

of another person, pursuant to N.J.S.A. 2C:24-7.1(a)(3) (counts three and four).


                                                                         A-1351-18T4
                                       2
      On that same day, defendant pled guilty to count one, as amended to third-

degree endangering the welfare of a child and two motor vehicle violations,

DWI, and driving while suspended. The remaining counts of the Accusation

were dismissed, as well as the other traffic summonses. As part of the plea

agreement, defendant preserved the right to appeal the denial of PTI.

      Pursuant to the plea agreement, the State agreed to recommend a sentence

of noncustodial probation. On February 8, 2018, defendant was sentenced to

the requisite fines and penalties for the motor vehicle violations, and a future

date was scheduled for his sentencing on count one of the Accusation.

      Later in the day on February 8, 2018, defense counsel received a rejection

letter from the program regarding defendant's PTI application. The letter noted

that "[t]he crime [was] of an assaultive or violent nature, whether in the criminal

act itself or in the possible injurious consequences of such behavior," and

"defendant would not be benefitted by supervising treatment . . . ."

      Under the section entitled "other," the letter explained:

            On [January 3, 2018], the [defendant] was interviewed
            at the Criminal Case Management Office [(CCM)] by
            this Officer. When asked why he felt as though he
            should be permitted to participate in PTI, the defendant
            advised the following: "I am not a criminal[,] the
            instant offense occurred due to a lapse in judgment. A
            criminal conviction could limit my employment
            opportunities." This officer did not receive discovery

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                                        3
               for this case, therefore an evaluation of all the facts in
               this case could not be reviewed. Based on the nature of
               the charges, CCM is rejecting [defendant's] application
               for PTI and recommending this case be handled through
               traditional [c]ourt processing. . . . CCM believes
               allowing the [defendant] into PTI would minimize the
               nature of the [i]nstant [o]ffense, and the effects the
               [defendant's] actions have on the victim and society.
               [Defendant] exhibited a disregard for the safety and
               well-being of the victim, as well as the consequences of
               illegal activity.

On the same date, defendant's counsel wrote a letter to the Criminal Division

Manager, asking that the application be reconsidered because "[t]he entire denial

appear[ed] to be a cut and paste job of the PTI language[,]" and the program

"should have waited for a copy of the discovery" before denying defendant's

application.

      Thereafter, on April 26, 2018, the program director reversed her decision

and recommended that defendant be admitted into PTI. The program director

incorporated her reasoning in a one-page letter.          She "took the liberty of

personally reviewing the correspondence that [defense counsel] forwarded . . .

[and was] willing to overturn its decision . . . ." The prosecutor was informed

of this decision.

      The prosecutor objected to PTI for defendant. On August 6, 2018, the

assistant prosecutor sent a four-page letter to defense counsel and the trial court


                                                                            A-1351-18T4
                                           4
in which she applied each of the factors set forth in N.J.S.A. 2C:43-12(e) to

determine whether defendant should be admitted to the program.

         The assistant prosecutor noted serious concerns about defendant's

intoxication, which threatened the safety of his two young children and the

public at large. At the time of his arrest, defendant's blood alcohol content was

.19 percent. She also stated that officers from the Rutgers Police Department

observed defendant traveling on Route 18 South "straddling the lane markings

between the middle lane and the right lane for an unusually prolonged time,"

and stopping abruptly on George Street "for an individual [who] had already

made his way across the crosswalk." Defendant also failed to stop for a red

light.

         The letter also stated that when the officers effectuated a motor vehicle

stop, they detected a strong odor of alcohol emanating from defendant's breath.

While exiting the vehicle, defendant stumbled, dropped his cell phone, and

failed the Standard Field Sobriety Tests.

         After considering the relevant factors and defendant's highly intoxicated

state at the time of the offenses, the assistant prosecutor determined th at on

balance, the factors against admission far outweighed any other factors that




                                                                          A-1351-18T4
                                         5
might militate in favor of diversion and would not consent to defendant's

enrollment into PTI.

      On August 14, 2018, defendant appealed the rejection of his PTI

application to the trial court. Defendant argued that in opposing his application

for PTI, the prosecutor's decision constituted an abuse of discretion based on its

failure to consider all of the relevant factors.

      On September 20, 2018, the judge issued a sixteen-page written decision

and determined that the prosecutor's denial was properly premised on a

consideration of all the relevant factors, which weighed against defendant's

admission into the PTI program. The judge reasoned:

             [defendant] was operating his vehicle with a BAC
             reading of .19% while his two children, ages [two] and
             [one], were in the vehicle. The initial charge was
             Endangering in the [second-degree] but [d]efendant
             agreed to plead guilty to a [third-degree] violation. . . .
             [T]he Criminal Case Management Office [originally]
             rejected [d]efendant's PTI application . . . stating that
             allowing [d]efendant into PTI would minimize the
             offense, as well as [d]efendant's disregard for the well-
             being of the victim and consequence of his illegal
             activity. . . . These facts favor the prosecution's analysis
             of the factors in [d]efendant's case. Thus, this court
             does not find that the State considered inappropriate
             factors, misinterpreted the facts or disregarded
             evidence in support of an applicant.




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                                          6
      Although there were more negative than positive factors here, the judge

concluded that it was within the prosecutor's discretion to give more weight to

those factors militating against diversion.    The judge then ruled that the

prosecutor's determination was not a patent and gross abuse of discretion.

Thereafter, the judge sentenced defendant in accordance with the plea agreement

on count one of the Accusation, imposing a two-year period of noncustodial

probation.

      This appeal followed. Defendant raises the following arguments for our

consideration:

             POINT I

             THE TRIAL COURT ERRED IN FINDING THAT
             THE STATE'S DENIAL OF DEFENDANT'S
             APPLICATION FOR PRE-TRIAL INTERVENTION
             WAS NOT AN ABUSE OF DISCRETION.

             Factors One, Two, and Twelve

                  The Nature Of The Offense And Facts Of
                  The Case And History Of Use Of Physical
                  Violence Towards Others.

             Factor Three

                  The Motivation      And     Age   Of   The
                  Defendant.

             Factor Four


                                                                       A-1351-18T4
                                      7
     The Desire Of The Complainant Or Victim
     To Forego Prosecution.

Factors Five and Six

     The Existence Of Personal Problems
     Which May Be Related To The Crime And
     For Which Services May Be Provided
     More Effectively Through Supervisory
     Treatment, The Probability That The
     Causes Of The Behavior Can Be
     Controlled By Treatment And The
     Likelihood That The Crime Is Related To
     A Situation That Would Be Conducive To
     Change Through His Participation In
     Supervisory Treatment.

Factors Seven, Eleven, Fourteen, and Seventeen

     The Needs And Interest Of The Victim
     And Society And 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, Whether Or Not Prosecution
     Would Exacerbate The Problem That Led
     To the Criminal Act, 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.

Factors Eight and Nine

     The Extent To Which The Applicant's
     Crime Constitutes Part Of A Continuing
     Pattern Of Anti-Social Behavior.

                                                 A-1351-18T4
                         8
            Factor Ten

                  Whether Or Not The Crime Is Of An
                  Assaultive Or Violent Nature.

                                       II.

      The criteria for admission into PTI, as well as the procedures concerning

the program, are set forth in N.J.S.A. 2C:43-12 to -22 and Rule 3:28-1 to -10.

N.J.S.A. 2C:43-12(e) includes seventeen criteria which, among other factors,

prosecutors and program directors must consider when deciding whether to

accept or reject a PTI application. If a prosecutor denies an application, he or

she must "precisely state his findings and conclusion which shall include the

facts upon which the application is based and the reasons offered for the denial."

N.J.S.A. 2C:43-12(f). "PTI is essentially an extension of the [prosecutor's]

charging decision, therefore the decision to grant or deny 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)).

      Our review of a prosecutor's decision to deny a defendant admission into

PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Judicial

review of a PTI application exists "to check only the most egregious examples

of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting

State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Absent evidence to

                                                                          A-1351-18T4
                                        9
the contrary, a reviewing court must assume that "the prosecutor's office has

considered all relevant factors in reaching the PTI decision." Nwobu, 139 N.J.

at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981)).

      A defendant seeking to have a court overrule a prosecutor's rejection of a

PTI application must "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." Wallace, 146 N.J. at 582 (alteration in original)

(quoting State v. Leonardis, 73 N.J. 360, 382 (1977)).

      Defendant contends that no one was hurt, he was not speeding, he

cooperated with the police, and had no criminal history. He further emphasizes

that he accepted full responsibility for the crimes committed and the situ ation

was merely a poor lapse in his judgment. Defendant claims he is motivated to

participate in PTI, demonstrating his amenability to correction. The evidence

supporting his motivation includes his emigration to this country as a teenager;

having three children; and supporting and caring for them. Because defendant

does not have a legal status, PTI would provide him the opportunity to remain

in the United States with his family.

      Having carefully considered defendant's arguments under these standards,

we conclude that no grounds exist to disturb the trial court's decision. The


                                                                        A-1351-18T4
                                        10
record demonstrates that the assistant prosecutor evaluated each of the factors

set forth in N.J.S.A. 2C:43-12(e) and Rule 3:28-1 to -10 before denying

defendant's PTI application. Thereafter, the trial court conducted a thorough

review of the prosecutor's decision. Moreover, because defendant was charged

with two second-degree offenses, the presumption against acceptance into PTI

applies in this case. 1

      On appeal, defendant advances no convincing argument that the

prosecutor's determination was a patent and gross abuse of discretion. We

therefore conclude that the judge did not err by finding that the prosecutor's

decision to deny defendant's application was not a patent and gross abuse of

discretion.

      Defendant's remaining arguments are without sufficient merit to wa rrant

discussion in this opinion. R. 2:11-3(e)(2).

      Affirmed.




1
    The fact that defendant ultimately pled guilty to a third-degree crime is
irrelevant to our analysis. The PTI process is "not designed to assess the weight
of the State's case." Nwobu, 139 N.J. at 252. The administration of the PTI
program should not base acceptance upon the weight of the evidence of guilt,
but the crimes charged. Ibid.
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                                      11
