                                NOT FOR PUBLICATION WITHOUT THE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-4843-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN W. DANIELS,

     Defendant-Appellant.
_____________________________

                    Submitted March 25, 2019 – Decided April 16, 2019

                    Before Judges Gooden Brown and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 17-10-
                    1394.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Marcia H. Blum, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Monica L. do
                    Outeiro, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Following the denial of his appeal to the Law Division of the prosecutor's

rejection of his application for admission into the Pre-trial Intervention Program

(PTI),1 defendant John W. Daniels entered a negotiated guilty plea to one count

of third-degree bad checks, N.J.S.A. 2C:21-5. He was sentenced to a one-year

probationary term, conditioned upon the payment of $3750 in restitution to the

victim, C.V. Challenging his rejection from PTI, defendant appeals from the

judgment of conviction entered by the trial court on May 30, 2018, raising the

following single argument for our consideration:

            THE PROSECUTOR'S DECISION TO DENY
            DEFENDANT PTI CONSTITUTES A PATENT AND
            GROSS ABUSE OF DISCRETION AND SUBVERTS
            THE GOALS OF PTI.

We disagree and affirm.

      The allegations leading to defendant's arrest, indictment, and PTI

application were summarized by the PTI judge as follows:



1
  "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)). "[A]cceptance into PTI is
dependent upon an initial recommendation by the Criminal Division Manager
and consent of the prosecutor." Ibid. "The assessment of a defendant's
suitability for PTI must be conducted under the Guidelines for PTI provided in
Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e)."
Ibid.
                                                                          A-4843-17T3
                                        2
             [O]n two occasions in January and February of 2016[,]
             . . . defendant borrowed a total of [$3750] from C.V.
             As of June 2016, . . . defendant had not paid C.V. . . .
             [D]efendant told C.V. he would pay him [$4000] to
             reconcile the debt. On September 9[], 2016[,] C.V.
             received a check from . . . defendant[,] . . . which was
             returned unpaid. Shortly thereafter[,] . . . defendant
             sent another check to C.V. for [$4000]. On November
             11, 2016[,] the second check was returned unpaid and
             the reason noted was that it was on a closed account.
             C.V. then brought the matter to the attention of the
             police.

                     On October 5, 2017[,] a Monmouth County grand
             jury charged . . . defendant with one count of third-
             degree theft by deception and two counts of third-
             degree bad checks. On October 23, 2017[,] . . .
             defendant applied to PTI. On December 3, 2017[,] the
             Prosecutor's Office issued a memorandum rejecting the
             application into PTI. And on January 5[], . . . 2018[,]
             . . . defendant filed this appeal.

      The prosecutor's memorandum rejecting defendant's PTI application

relied, in part, on the PTI Director's rejection. The PTI Director acknowledged

that defendant, then "a [forty-nine] year old married father of two," was highly

educated, having "earned an MBA from Temple University Fox School of

Business in 2000[,]" and "employed as a Director of Finance for Invivo."

However, in determining that defendant was unsuitable for PTI, the Director

explained:

             The victim was strongly opposed to . . . defendant's
             admittance, stating that . . . defendant is a former friend

                                                                           A-4843-17T3
                                         3
            who failed to repay him a [$3750] loan for the past two
            years. A review of . . . defendant's criminal history
            revealed that . . . defendant has been charged with
            [t]heft by [d]eception, [b]ad [c]hecks, and [f]orgery in
            the past, which was later dismissed. While . . .
            defendant is gainfully employed and has lived as a
            productive member of society, he displayed no remorse
            for the offense and exhibited very little urgency to pay
            back a friend who helped him in a time of need. During
            [the PTI] interview[,] . . . defendant . . . proved to be
            difficult and expressed disdain for standard questions
            that are asked of all PTI applicants. He failed to abide
            by strict deadlines when verifying documentation and
            will likely continue this behavior towards his
            supervising officer. Therefore, . . . a stricter form of
            supervision is warranted.

      The prosecutor's rejection memorandum also relied on N.J.S.A. 2C:43-

12(e)(1) ("[t]he nature of the offense"); N.J.S.A. 2C:43-12(e)(2) ("[t]he facts of

the case"); N.J.S.A. 2C:43-12(e)(3) ("[t]he motivation and age of the

defendant"); and N.J.S.A. 2C:43-12(e)(4) ("the desire of the . . . victim to forego

prosecution").   Regarding N.J.S.A. 2C:43-12(e)(1) and (2), the prosecutor

elaborated that even accepting defendant's contention that "the failure to pay

back the initial loan should be seen as a minor, civil matter[,] . . . [d]efendant's

repeated efforts to swindle the victim by providing worthless checks off closed

accounts constitutes conduct that should not be rewarded."

      Regarding N.J.S.A. 2C:43-12(e)(3), the prosecutor stated:



                                                                            A-4843-17T3
                                         4
            Defendant has obstructed and made a difficult situation
            worse. Bouncing one check is too much. Two checks
            demonstrates a concerted effort to frustrate the victim.
            During the initial investigation and the pendency of
            these charges, . . . [d]efendant had opportunities to
            make the victim whole and close this matter. He chose
            not to.

Referring to defendant's behavior during his PTI interview, the prosecutor added

defendant "is simply not motivated to address these concerns and therefore

should not be permitted the benefit of diversion."        As to N.J.S.A. 2C:43-

12(e)(4), the prosecutor stated "[t]he victim has expressed his opposition to

PTI," and "[t]hat opposition should be granted substantial weight."

      Additionally, the prosecutor considered Rule 3:28, Guideline 1(b)2

("recogniz[ing] that diversion in appropriate circumstances can serve as

sufficient sanction to deter future criminal conduct"); and Guideline 1(c)

("provid[ing] for the use of PTI as a mechanism for minimizing penetration into

the criminal process for broad categories of offenders accused of 'victimless

crimes[]'"). However, as to the latter, the prosecutor stressed that "[d]efendant's

actions created a victim." After acknowledging the "mitigating information" in


2
  Rule 3:28 has since been repealed in part and reallocated to Rules 3:28-2, -3,
-5, -6, -7, -8, and -10, effective July 1, 2018. Pressler & Verniero, Current N.J.
Court Rules, R. 3:28 (2019). Because these new Rules were not in effect when
defendant's application was considered by the PTI Director, prosecutor, and trial
court, we apply the standards in effect at that time.
                                                                           A-4843-17T3
                                        5
"the PTI application and discovery," including defendant's education and

employment,      the   prosecutor    nevertheless   "object[ed]    to   [defendant's]

admission."

     At the PTI hearing, the judge summarized defendant's position as follows:

              [D]efendant argues that his rejection should be reversed
              because the [p]rosecutor abused his discretion. . . .
              [D]efendant argues that the [p]rosecutor erroneously
              found that . . . defendant's gainful employment,
              education, and lack of criminal record did not outweigh
              the negative factors against . . . defendant's admission
              into PTI.

                     . . . [D]efendant asserts that the nature of the
              crime was not violent, he only borrowed money from a
              friend during a difficult time. . . . [D]efendant said that
              [he is] [forty-nine] years old, has almost no criminal
              history, and [he is] motivated to complete the PTI
              program. . . . [D]efendant highlighted several positive
              factors that he believes the [p]rosecutor should have
              considered, which include the current offense is an
              isolated incident, the [S]tate offered . . . defendant a
              non-custodial probationary term, [and] . . . defendant
              would be able to pay restitution if he were admitted into
              PTI.

                      . . . [D]efendant asserts that the [p]rosecutor did
              not comprehend the difficulty of making restitution
              while supporting a family during a period of
              unemployment. There is a civil judgment against . . .
              defendant for the entire amount . . . of restitution, which
              . . . defendant has been unable to pay.

                   . . . [D]efendant argues that the [p]rosecutor, in
              denying him PTI on the basis that he [cannot] afford to

                                                                             A-4843-17T3
                                          6
            pay restitution is wholly unfair. . . . [D]efendant argues
            that his rejection subverts the goals underlying PTI. . . .
            [D]efendant's life would be negatively impacted by
            having a felony on his record.

                  . . . . [D]efendant asserts that the [p]rosecutor
            erred in judgment because the [p]rosecutor did not
            weigh all of the factors correctly and almost all of the
            factors weigh in favor of PTI.

      In rejecting defendant's arguments, the judge determined "the [p]rosecutor

considered all relevant factors" and defendant failed "to overcome the heavy

burden placed upon a defendant seeking to overturn a [p]rosecutor's PTI

determination." The judge explained that defendant simply "disagree[d] with

the [p]rosecutor's decision" but "that disagreement does not warrant reversal."

Finding no "patent and gross abuse of discretion by the [p]rosecutor [,]" or that

the decision was arbitrary, capricious, or unreasonable, the judge denied

defendant's appeal, entered a memorializing order, and this appeal followed.

      Deciding whether to permit a defendant to divert to PTI "is a

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582

(1996), for which a prosecutor is "granted broad discretion." State v. K.S., 220

N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list of

seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to

"make an individualized assessment of the defendant considering his or her


                                                                          A-4843-17T3
                                        7
amenability to correction and potential responsiveness to rehabilitation."

Roseman, 221 N.J. at 621-22 (internal quotation marks omitted) (quoting State

v. Watkins, 193 N.J. 507, 520 (2008)).          The Supreme Court's Guidelines

accompanying Rule 3:28 work in harmony with the seventeen individual factors

listed in N.J.S.A. 2C:43-12(e).

        That said, the scope of 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) (quoting State v.

Leonardis, 73 N.J. 360, 384 (1977)).         "In order 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 [,]'"

meaning that the decision "has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial

intervention." Watkins, 193 N.J. at 520 (first quoting State v. Watkins, 390 N.J.

Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J. at

583).

        In that regard, an abuse of discretion has occurred where it can be proven

"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,


                                                                           A-4843-17T3
                                         8
or (c) amounted to a clear error in judgment[.]'" State v. Lee, 437 N.J. Super.

555, 563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "In

order for such an abuse of discretion to rise to the level of 'patent and gross,' it

must further be shown that the prosecutorial error complained of will clearly

subvert the goals underlying [PTI]." Roseman, 221 N.J. at 625 (quoting Bender,

80 N.J. at 93). "The extreme deference which a prosecutor's decision is entitled

to in this context translates into a heavy burden which must be borne by a

defendant when seeking to overcome a prosecutorial veto of his [or her]

admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993).

      Applying these principles here, we find no basis to disturb the PTI judge's

decision sustaining the prosecutor's veto, a decision we review de novo. See

State v. Denman, 449 N.J. Super. 369, 375-76 (App. Div. 2017). Defendant

renews his "disagree[ment] with the prosecutor's finding that factors (1) through

(4) weigh against his admission[,]" arguing the prosecutor's decision

"constituted a patent and gross abuse of discretion." Defendant maintains that

given the absence of a criminal record, his education and gainful employment,

neither the nature of the offense, the facts of the case, nor his motivation

provided a basis for denying him the benefits of PTI. However, when balanced

against the factors the prosecutor considered, we cannot conclude the


                                                                            A-4843-17T3
                                         9
prosecutor's decision represented any abuse of discretion, let alone a patent and

gross abuse of discretion.

      Defendant also argues the prosecutor failed to consider his "personal

problems that resulted in this offense, . . . in particular the fact that [he] had lost

his job and his husband[,]" as well as the fact that he "was prepared to commit

to an order of full restitution[.]" However, "[a]bsent evidence to the contrary, it

is [to be] presumed that the prosecutor considered all relevant factors before

rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981). "The question

is not whether we agree or disagree with the prosecutor's decision, but whether

the prosecutor's decision could not have been reasonably made upon weighing

the relevant factors." Nwobu, 139 N.J. at 254. We conclude defendant failed to

clearly and convincingly establish that the prosecutor's decision went so wide of

the mark sought to be accomplished by PTI that fundamental fairness and justice

require our intervention.

      Affirmed.




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                                         10
