                        NOT FOR PUBLICATION WITHOUT THE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-1398-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CANDIDO ORTIZ,

        Defendant-Appellant.


              Submitted March 22, 2017 – Decided May 26, 2017

              Before Judges Alvarez and Lisa.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Somerset County,
              Indictment No. 15-02-0059.

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

              Michael H. Robertson, Acting Somerset County
              Prosecutor, attorney for respondent (James L.
              McConnell, Assistant Prosecutor, of counsel
              and on the brief).

PER CURIAM

        Defendant Candido Ortiz was sentenced on September 25, 2015,

in accord with his plea agreement, to three years probation with
appropriate fines, penalties, and conditions on two counts of

third-degree theft, N.J.S.A. 2C:20-3.              He now appeals from the

denial   of    his    application    for     admission   into    the    Pretrial

Intervention Program (PTI).1         We affirm.

       The    theft   charges   arose       from   defendant's   shoplifting,

partially captured on video, of $664.90 worth of merchandise from

Lord & Taylor and $529.44 from Macy's.             Defendant also shoplifted

from Bath & Body Works and American Eagle as part of the same

episode on the same day, however, those retailers only filed

disorderly persons complaints for shoplifting, N.J.S.A. 2C:20-

11(b)(2).      Those two complaints were dismissed the day defendant

was sentenced. When arrested, defendant admitted having the stolen

items in his possession.

       The PTI Director rejected defendant's application based on

Guideline 3, Rule 3:28, referring to N.J.S.A. 2C:43-12(e)(8), in

that   defendant's     behavior     "constitutes     part   of   a     continuing

pattern of anti-social behavior," and N.J.S.A. 2C:43-12(e)(9),

defendant's "record of criminal and penal violations and the extent

to which he may present a substantial danger to others."                       The

letter also stated:


1
  Neither the written agreement nor the plea allocution preserved
defendant's right to appeal the denial of his entry into PTI. See
R. 3:9-3(f). We assume from the State's lack of objection that
it has nonetheless consented.

                                        2                                 A-1398-15T3
         The defendant is presently charged with two
         counts of 3rd degree Theft By Unlawful Taking
         and   two   Disorderly    Persons   charges   of
         Shoplifting.     The defendant has Municipal
         Court convictions from 2010 for Doing Lewd/
         Offensive Act and Conduct Manifesting CDS
         Transactions. He has a 2014 Municipal Court
         conviction     for     Possession     of    Drug
         Paraphernalia for which he was sentenced to a
         1 year term of probation on 09/09/2014. He
         violated probation on 3/26/2015 and his
         probation was continued.        He has a 2014
         Municipal Court conviction for Operating a
         Taxi W/O a License.      He has 2015 Municipal
         Court convictions for Take Merchandise From
         Store W/O Intent to Pay and Taxi Cabs
         Sol[ici]tation and Acceptance of Passenger.
         He has pending[]charges of Conceal Merchandise
         From Store W/O Intent to Pay from Bridgewater
         Township that were transferred to Superior
         Court on 12/04/2014. The defendant has been
         unable to remain arrest free even while on
         probation.        Based    on   the    foregoing
         information, the Criminal Division does not
         recomme[n]d admission to the PTI program.

    The prosecutor issued an initial letter of denial, and, after

reviewing additional materials submitted by defendant regarding

his mental health and substance abuse issues, a second denial.

When the Law Division judge conducted a hearing on defendant's

rejection, the prosecutor offered a third letter, in which each

guideline promulgated by our Supreme Court found in Rule 3:28,

which incorporates the statutory goals found in N.J.S.A. 2C:43-

12(e), was reviewed.

    The prosecutor concluded that "traditional prosecution is

warranted in [defendant's] case[,]" and that "defendant has not

                                3                           A-1398-15T3
provided    any     sufficiently       compelling        reason    to    justify       his

admission to PTI."          [Pa23]     Judge Bruce Jones agreed.

      After reviewing the circumstances surrounding the offenses

as well as this fifty-two-year-old defendant's personal history

in relation to the Guidelines, Judge Jones rejected defendant's

argument that the PTI denial was a patent and gross abuse of

discretion.        He opined that "[i]n light of the considerable

deference" with which a prosecutor's decision is reviewed, the

State's reasons were "legally sufficient[.]"                      The prosecutor's

decision did not go "so wide off the mark sought to be accomplished

by   PTI"   that    it   required      judicial     intervention.           The     State

considered all the relevant factors in reaching its decision, and

application    of     the    guidelines       to   the    circumstances      appeared

reasonable.

      On    appeal,      defendant      essentially        reiterates       the       same

arguments, contending that rejection from the program was a product

of   misapplication         of   the   guidelines,       and    was     arbitrary      and

capricious. In light of defendant's prior contacts with the system

and the nature of the four shopliftings on the day in question,

we do not agree.

      Unquestionably PTI, a diversionary program, allows defendants

the opportunity to avoid the potential stigma of a conviction.

State v. Bell, 217 N.J. 336, 347-48 (2014).                    "Eligibility for PTI

                                          4                                       A-1398-15T3
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."                    State v. Roseman,

221 N.J. 611, 622 (2015) (quoting Pressler & Verniero, Current

N.J. Court Rules, Guideline 2 on R. 3:28 at 1167 (2015)).

      However, determining which defendants should be diverted into

the PTI program "is a quintessentially prosecutorial function[.]"

State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v.

Dalgleesh, 86 N.J. 503, 513 (1981)).                 A prosecutor enjoys broad

discretion in making these decisions.                   State v. K.S., 220 N.J.

190, 199 (2015).      The review process requires consideration of the

nonexhaustive list of seventeen statutory factors enumerated in

N.J.S.A.     2C:43-12(e)     in    order           to      make    that      necessary

individualized assessment.        Roseman, supra, 221 N.J. at 621-22.

      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)).                      A defendant may

challenge the State's rejection from PTI by demonstrating facts

or   material    establishing      his        or     her    amenability       to    the

rehabilitation   process,     along   with          any    efforts    to   effectuate

behavioral changes to avoid future criminal conduct.                          N.J.S.A.



                                      5                                        A-1398-15T3
2C:43-12(d).    See also Pressler & Verniero, Current N.J. Court

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

      Our review of a PTI rejection is severely limited and designed

to address "only the most egregious examples of injustice and

unfairness."    State v. Negran, 178 N.J. 73, 82 (2003) (citations

omitted).   A defendant bears a heavy burden on appeal, and must

clearly and convincingly establish that the prosecutor's decision

is a patent and gross abuse of discretion which has gone so wide

of the mark that fundamental fairness and justice require judicial

intervention.      Watkins, supra, 193 N.J. at 520.                   An abuse of

discretion is found 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    of

judgment[.]'"      State v. Lee, 437 N.J. Super. 555, 563 (App. Div.

2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)), certif.

denied, 222 N.J. 18 (2015).

      In this case, there was no abuse of discretion in the denial

of   defendant's    application.         Despite        defendant's       undisputed

current efforts to obtain treatment, his criminal history and

ongoing   mental    health   and    substance       abuse        problems    present

challenges best addressed through probation and not PTI services.

His prior contacts with the system, in addition to the criminal

                                         6                                    A-1398-15T3
conduct in which he engaged on the day in question, make him an

inappropriate candidate.   Thus, there were indeed valid reasons

for denial premised on consideration of Guideline 3(e).

     Moreover, PTI eligibility is ordinarily "limited to persons

who have not previously been convicted of any criminal offense."

N.J.S.A. 2C:43-12(a).   Despite the fact that defendant's prior

contacts were all disorderly persons in nature, his arrest history

over the last seven years, including while on probation, militate

against an exception being made in his case to that general policy.

The available PTI resources could not adequately address his

circumstances.   Thus we conclude, as did Judge Jones, that no

patent and gross abuse of discretion occurred in the prosecutor's

denial.

     Affirmed.




                                7                           A-1398-15T3
