                          NOT FOR PUBLICATION WITHOUT THE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-4924-15T2

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

YEIMY ACOSTA,

     Defendant-Respondent.
_______________________________

              Submitted December 22, 2016 - Decided                February 22, 2017

              Before Judges Lihotz and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              15-05-0457.

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for appellant (Christopher W. Hsieh,
              Chief Assistant Prosecutor, of counsel and on
              the brief).

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

PER CURIAM

        The   State     appeals    from    a   June   30,   2016    order   allowing

defendant       Yeimy     Acosta    to    enroll      in    the    county   Pretrial
Intervention Program (PTI), over the State's objection.                     In a

single point on appeal, the State argues:

            THE ORDER ENROLLING DEFENDANT INTO PTI OVER
            THE STATE'S OBJECTION SHOULD BE REVERSED, AS
            THE STATE'S OBJECTION WAS BASED UPON REVIEW
            OF RELEVANT CRITERIA SET FORTH IN N.J.S.A.
            2C:43-12 AND WAS NOT A PATENT AND GROSS ABUSE
            OF DISCRETION.

     Following our review, we are compelled to reverse the judge's

opinion, as admission to PTI is not an appropriate remedy when the

court finds the prosecutor failed to address all relevant factors

in a PTI review.         We remand the matter for further proceedings

consistent with our opinion.

     Defendant     was    charged   in   a    three-count    indictment    with:

third-degree offenses of possession of gambling records, N.J.S.A.

2C:37-3(a)(1)      and   N.J.S.A.   2C:37-3(a)(2);        promoting    gambling,

N.J.S.A. 2C:37-2(a)(1); and a fourth-degree offense of maintaining

a gambling resort, N.J.S.A. 2C:37-4(a).                The charges were issued

after police surveillance determined an illegal sports betting

operation    was    conducted   from         Fransol    Enterprises,   Inc.,     a

purported copy and print shop.               A search incident to a warrant

recovered a computer, a gambling line sheet, Dominican Lottery

slips, a bundle of currency, and wager slips.                 Police arrested

defendant who was the only employee present.                 Defendant applied

for PTI, stating she worked for Fransol Enterprises, Inc., which


                                         2                               A-4924-15T2
she knew was "a gambling store," admitted she knew what was going

on, and noted the "owner never showed."

     The Criminal Division Manager, as PTI Director, rejected

defendant's PTI application.    Relying on defendant's prior arrests

and convictions for violating an ordinance in 2006, distribution

of narcotics in a school zone in 2007, and a disorderly persons

offense in 2014, the PTI Director concluded PTI was "unlikely to

deter future criminal and disorderly conduct."           The Director

elaborated,   stating   "defendant's    prior   record   indicates    a

behavioral pattern not conductive to short-term rehabilitation and

indicates PTI will not serve as a sufficient sanction to deter

future criminal behavior."     Since defendant had been on probation

for the drug distribution offense, but again engaged in criminal

conduct, the Director recommended probation as a more appropriate

lengthier supervision tool, to assure defendant continued to live

a law-abiding life.

     The prosecutor reviewed the PTI request and the Director's

assessment.   Concurring with the PTI Director's rejection of

defendant's application, the prosecutor cited these factors in his

written denial of PTI admission: the nature of the offense; the

facts of the case; the needs and interests of the victim and

society; the fact the crimes were part of a continuing pattern of

anti-social behavior; and defendant's criminal record reflecting

                                   3                          A-4924-15T2
she is a danger to others.         N.J.S.A. 2C:43-12(e)(1), (2), (7),

(8), (9) and (17).

     Defendant appealed.      She argued the evidence showed she was

amenable   to   change   because   she   left   the   offending   place    of

employment to undertake a job in a doctor's office, and expressed

a desire to further her education.       She steadily worked, cared for

her young child, and maintained the value of PTI supervisory

treatment outweighed the public's need for prosecution.

     The reviewing judge issued a letter opinion, overriding the

prosecutor's denial, and ordered defendant's admission to PTI.

The State filed the instant appeal.

     As provided by N.J.S.A. 2C:43-12 and the Guidelines set forth

in Rule 3:28, "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. Roseman, 221 N.J. 611, 621 (2015) (quoting

State v. Nwobu, 139 N.J. 236, 240 (1995)).              N.J.S.A. 2C:43-12

articulates the factors relevant to determining a defendant's

suitability for PTI and the applicable procedures, which must be

followed in that evaluation.       Specifically, N.J.S.A. 2C:43-12(e)

frames factors considered first by the Criminal Division Manager

and then by the prosecutor.        Ibid.    The statutory list is not



                                    4                               A-4924-15T2
exhaustive and additional relevant facts may be considered.                  State

v. Negran, 178 N.J. 73, 84 (2003).

       Any defendant may apply for admission into PTI.               Guided by

the express standards, prosecutors possess broad discretion to

determine whether a defendant should be diverted into PTI.                   State

v. K.S., 220 N.J. 190, 199-200 (2015).              "This discretion arises

out of 'the fundamental responsibility of prosecutors for deciding

whom to prosecute.'"        Id. at 200 (quoting State v. Dalglish, 86

N.J. 503, 509 (1981)).        "Thus, it has clearly been acknowledged

that   this   decision   lies,    in    the      first   instance,    with      the

prosecutor, and once he [or she] has determined that he [or she]

will not consent to the diversion of a particular defendant, his

[or her] decision is to be afforded great deference."                 State v.

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

Leonardis, 73 N.J. 360, 381 (1977)); see also Roseman, supra, 221

N.J.   at   624   ("[T]he    decision      to    grant   or   deny   PTI     is    a

'quintessentially    prosecutorial         function.'"    (quoting    State       v.

Wallace, 146 N.J. 576, 582 (1996))).

       A prosecutor makes a tailored assessment of a defendant's

individualized     "'amenability        to      correction'    and   potential

'responsiveness to rehabilitation.'"             State v. Watkins, 193 N.J.

507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b)).               If rejected from

PTI, a defendant may challenge the State's decision before the

                                       5                                   A-4924-15T2
court, by showing facts or materials demonstrating the defendant's

amenability to the rehabilitation process, along with any efforts

to effect behavioral changes to avoid future criminal conduct.

N.J.S.A. 2C:43-12(d).            See also Pressler & Verniero, Current N.J.

Court Rules, Guideline 2 on R. 3:28 (2017).

     The scope of judicial review of a prosecutor's determination

is severely limited, as prosecutors have wide latitude in deciding

whom to divert into the PTI program and whom to prosecute.                          Nwobu,

supra, 139 N.J. at 246.             "Judicial review serves to check only the

'most egregious examples of injustice and unfairness.'"                         Negran,

supra, 178 N.J. at 82 (quoting Leonardis, supra, 73 N.J. at 384).

Thus, a judge may order a defendant into PTI over a prosecutor's

objection       only     if   the     defendant          "clearly   and    convincingly

establish[es] that the prosecutor's refusal to sanction admission

into the program was clearly and convincingly based on a patent

and gross abuse" of discretion.                 Wallace, supra, 146 N.J. at 582.

     The    court's       analysis         must     be    fact-sensitive     and     shall

consider the totality of all facts and circumstances.                                  What

constitutes a "patent and gross" abuse of discretion was discussed

by the Supreme Court in Roseman. An abuse of discretion is defined

as a decision "not premised upon a consideration of all relevant

factors,    .    .   .   based      upon    a   consideration       of    irrelevant      or

inappropriate factors, or . . . amount[ing] to a clear error of

                                                6                                  A-4924-15T2
judgment."      Roseman, supra, 221 N.J. at 625 (quoting State v.

Bender, 80 N.J. 84, 93 (1979)).            However, a "patent and gross"

abuse of discretion is an error that "will clearly subvert the

goals underlying" PTI.        Bender, supra, 80 N.J. at 93.          See also

Watkins, supra, 193 N.J. at 520.           Only where a patent and gross

abuse of discretion is shown, may a judge admit the defendant into

PTI over the prosecutor's objection.          Roseman, supra, 221 N.J. at

625.

       On appeal, the State argues the reviewing judge failed to

apply the heighted standard of review and did not find a patent

and    gross   abuse   of   discretion.      The   State   argues   the   judge

erroneously "substituted his judgment for that of the prosecutor."

       In his opinion, the judge concluded the State's denial of

defendant's PTI application was a "clear error of judgment."                 He

cited three reasons:        First, defendant "was not the owner of the

business where the illegal gambling operation was conducted";

although she knew the operation's nature, it was unclear whether

she    actively    participated   or   was    merely   "complacent    in   its

operations."      Second, the heavy reliance upon defendant's criminal

history and "alleged continuing pattern of anti-social behavior"

led to a determination she was not amenable to reform, which the

judge found was unsupported, noting the State failed to consider

defendant had no juvenile record, had completed probation for her

                                       7                              A-4924-15T2
drug offense, and did not reoffend while on probation.               Third, the

State failed to weigh defendant's acceptance of responsibility for

her actions and current conduct demonstrating a receptiveness to

rehabilitation, such as her current gainful employment and caring

for her child.

     Following       our   review,   we       conclude   the   court's   analysis

ignored evidence squarely refuting the identified reasons for

overriding     the     prosecutor's       rejection      of    defendant's     PTI

application.     Regarding the extent of defendant's knowledge and

participation in the scheme, defendant's work area was the location

of the betting operation and she was the only employee attending

the business when arrested.               Importantly, defendant possessed

betting slips in her purse and admitted she knew what was going

on, and understand it was illegal.               See State v. Purdy, 51 N.J.

303, 309 (1968) (noting possession of betting slips violates the

statute); State v. Gawronski, 9 N.J. Super. 51, 53 (App. Div.

1950) ("[T]he jury may infer guilty knowledge from proof of

possession of contraband articles in violation of the pertinent

statute.").    Moreover, contrary to the judge's drawn inference,

there are no facts justifying defendant's conduct.                  The State's

evidence refutes any suggestion defendant was "just complacent"

and shows she was an active participant.



                                          8                               A-4924-15T2
     As to her criminal record, at age twenty-one defendant was

arrested   for   possessing   marijuana   and    incurred   two   municipal

convictions for disorderly conduct.             At twenty-four, she was

indicted for third-degree drug distribution within a school zone,

for which she was sentenced to three-years probation.             Probation

discharged defendant in January 2012 and within three years, she

again resorted to illicit activity by participating in the subject

gambling enterprise.

     The facts relied upon by the judge, including defendant had

no juvenile record, had completed probation, and had no history

of violating probation, were accurate.             However, the judge's

comments did not weigh defendant's adult criminal record, as

required by the PTI guidelines.     Guideline 3(e) to R. 3:28 states

in pertinent part:

           While the [PTI] is not limited to "first
           offenders",   defendants     who    have  been
           previously convicted of a criminal offense
           should   ordinarily    be   excluded.     Such
           defendants who have . . . irrespective of the
           degree of the crime have completed a term of
           probation, incarceration or parole within five
           years prior to the date of application for
           diversion shall ordinarily not be considered
           for enrollment in PTI except on joint
           application   by   the    defendant   and  the
           prosecutor.

           [Pressler & Verniero, supra, Guideline 3(e)
           on R. 3:28.]



                                   9                                A-4924-15T2
      Here, defendant's indictable criminal conduct was motivated

by monetary gain.         She asserts no history of drug use, yet was

previously sentenced for selling drugs.                  The State's evidence

shows within five years of completing probation, defendant took a

job   in   which   she     actively    aided    an     illicit   sports    betting

operation.    The evidence supported the State's position that prior

diversionary efforts were ineffective to deter defendant from

engaging in criminal activity.

      The judge also failed to assess the State's reliance on the

nature of the offenses charged.              The gambling offenses occurred

over a period of time and, as noted by the records seized, involved

numerous    individuals,       who   regularly    participated      in    betting.

Although we agree the offenses were not violent, we reject the

notion     they   were    victimless    crimes.         Society's   interest      in

deterrence along with defendant's criminal history suggest a need

for   prosecution        and   the   more    intense    supervisory      treatment

afforded by a probationary sentence.

      In addition to not examining all facts in light of the law,

the judge also failed to explain his reasoning, especially his

conclusion the prosecutor's denial of admission subverted the

goals of PTI.      R. 1:7-4.     We cannot infer this conclusion from the

record.



                                        10                                 A-4924-15T2
       There is one issue on which we agree, that is, the State

failed to consider all relevant factors.              See Nwobu, supra, 139

N.J.    at   255   ("[A]    prosecutor     must    consider       an   individual

defendant's features that bear on his or her amenability to

rehabilitation.").           We   conclude,       however,    this       alone    is

insufficient to order defendant's admission to PTI.

       The State determined PTI would not curb defendant's future

criminal conduct, and more restrictive probation supervision was

necessary.     Yet in doing so, the State did not address changes

made to defendant's behavior since her arrest, which suggest

amenability to rehabilitation, including her acknowledgement of

responsibility,     the     maintenance    of   legal   employment        and    the

provision of care for her child.           Considerations of a defendant's

attitude and conduct to avoid criminal conduct must be weighed

under Guideline 2 to R. 3:28, which should consider facts rendering

diversion    to PTI effective.

       Following our review, we conclude the State's recital of its

reasons for denying defendant's PTI application failed to consider

defendant's post-arrest actions that militate toward defendant's

"'amenability to correction' and potential 'responsiveness to

rehabilitation.'"          Watkins,   supra,    193   N.J.   at    520    (quoting

N.J.S.A. 2C:43-12(b)).        The failure to consider these significant

facts required the State's reconsideration and reassessment.

                                      11                                   A-4924-15T2
     We disagree with the trial judge's order concluding the

State's omission of relevant information was a basis to compel

defendant's PTI admission.    Rather "the appropriate remedy for an

inadequate statement of reasons by the prosecutor is to require

further consideration of the omitted facts.    Roseman, supra, 221

N.J. at 629.

     Consequently, we reverse the opinion and vacate the June 30,

2016 order admitting defendant to PTI.    We remand for additional

proceedings to require the prosecutor to amend the individualized

assessment of defendant's application.   Particular attention must

be made to consider evidence supporting satisfaction of N.J.S.A.

2C:43-12(b), showing defendant was "amenab[le] to correction" and

responsive to rehabilitation if admitted to PTI.

     Reversed and remanded.    We do not retain jurisdiction.




                                 12                         A-4924-15T2
