                                 NOT FOR PUBLICATION WITHOUT THE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-4846-17T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

DASHAWN V. MORRIS,

     Defendant-Appellant.
____________________________

                    Submitted April 9, 2019 – Decided April 22, 2019

                    Before Judges Suter and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-01-0107.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele Erica Friedman, Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Theodore N. Stephens, II, Acting Essex County
                    Prosecutor, attorney for respondent (Emily M. M. Pirro,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant DaShawn Morris appeals from his judgment of conviction,

arguing the trial court erred when it upheld the prosecutor's rejection of his

application for pre-trial intervention (PTI). We affirm.

        The prosecutor's rejection letter alleged the following facts.        On

September 19, 2016, T.S.1 was on her way to pick up her son from school when

she saw defendant, the father of her son, driving down the street with their son

in his car. T.S. flagged defendant down to ask about their son. Defendant

became angry, exited the car, and punched T.S. in the face. Defendant yelled,

"Don't fucking question me!" and "I am going to fucking kill you!"           T.S.

attempted to escape, however, defendant chased and caught her and punched her

in the face again. Defendant also allegedly choked T.S. Eventually, defendant

released T.S. and she was able to remove their son from defendant's car. T.S.

suffered serious facial injuries as a result of defendant's attack, including a

fractured orbital socket, a fractured nose, and a fractured cheekbone.

        Defendant left the scene before the police arrived, but was subsequently

arrested. An Essex County Grand Jury charged defendant with second-degree

aggravated assault as a crime of domestic violence, N.J.S.A. 2C:12-1(b)(1) and

N.J.S.A. 2C:25-19, (count one); third-degree terroristic threats as a crime of


1
    We refer to the victim by initials to protect her privacy.
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                                          2
domestic violence, N.J.S.A. 2C:12-3(a) and N.J.S.A. 2C:25-19, (count two); and

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

(count three).

      Defendant applied for admission to PTI. Both the PTI Program Director

and the prosecutor denied the application. Defendant filed a motion challenging

the prosecutor's denial.    Following oral argument, the trial court denied

defendant's appeal from that decision, finding the prosecutor had not abused her

discretion or considered any factor that should not have been considered and

gave defendant the benefit of all potentially applicable mitigating factors.

      Following the trial court's denial of his appeal from the rejection of his

PTI application, defendant accepted the State's plea offer, and pleaded guilty to

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), in exchange for a

recommendation of non-custodial probation and dismissal of the other charges.

During his plea colloquy, defendant admitted to causing T.S. serious injury

when he punched her in the face; he also admitted it was his intention to cause

her injury. The court sentenced defendant to one year of non-custodial probation

and dismissed the remaining charges.

      Defendant appeals the denial of his PTI motion. Defendant argues: (1)

the prosecutor's rejection of his PTI application constitutes a patent and gross


                                                                          A-4846-17T1
                                        3
abuse of discretion warranting reversal and (2) his judgment of conviction must

be amended to reflect the third-degree offense he pleaded guilty to.

      "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 to -22,

Rule 3:28, and the Guidelines for Operation of Pretrial Intervention in New

Jersey (Guidelines) set out the criteria for admission and procedures for review

of PTI applications. 2 "Rule 3:28 provides the administrative framework for the

program," and "N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be

considered by the criminal division manager and prosecutor in determining

admission into [PTI]." State v. K.S., 220 N.J. 190, 197 (2015).

      "[T]he PTI Guidelines provide several statutory presumptions against PTI

when defendants have committed certain offenses." Roseman, 221 N.J. at 622.

For example, "[i]f the crime was . . . deliberately committed with violence or

threat of violence against another person . . . the defendant's application should



2
  Effective July 1, 2018, the Guidelines and Rule 3:28 were replaced with Rules
3:28-1 to -10. However, defendant's application was governed by the pre-
revision version of the rule and Guidelines. N.J.S.A. 2C:43-12 to -22 remains
unchanged.
                                                                          A-4846-17T1
                                        4
generally be rejected." K.S., 220 N.J. at 198 (alterations in original) (quoting

Pressler and Verniero, Current N.J. Court Rules, Guideline 3(i) on R. 3:28 at

1169 (2015)). "Similarly, Guideline 3(i) identifies a presumption against PTI

for any first- or second-degree crime . . . ." Roseman, 221 N.J. at 622 (quoting

Pressler and Verniero, Guideline 3(i) on R. 3:28 at 1169 (2015)).

      "Presumptions against PTI reflect an assumption that certain defendants

'have committed crimes that are, by their very nature, serious or heinous and

with respect to which the benefits of diversion are presumptively unavailable.'"

Roseman, 221 N.J. at 622 (quoting State v. Watkins, 193 N.J. 507, 523 (2008)).

While presumptions against PTI can be overcome, to do so the defendant must

demonstrate "compelling reasons" that justify admission and show "a decision

against enrollment would be arbitrary and unreasonable."         Ibid.   (quoting

Pressler and Verniero, Guideline 3(i) on R. 3:28 at 1171 (2015)). The defendant

must also show there is "something extraordinary or unusual" about his or her

background. Id. at 622-23 (quoting Nwobu, 139 N.J. at 252-53).

      "[T]he interests of society may justify the denial of an application for

admission into PTI even though a defendant has led an exemplary life except for

the conduct which forms the basis of the pending criminal charges." State v.

Seyler, 323 N.J. Super. 360, 370 (App. Div. 1999), aff'd o.b., 163 N.J. 69 (2000).


                                                                          A-4846-17T1
                                        5
As such, merely being "a first-time offender" who "admitted or accepted

responsibility for the crime" is not enough. State v. Waters, 439 N.J. Super.

215, 227 (App. Div. 2015) (quoting Nwobu, 139 N.J. at 252). "If a defendant

'fails to rebut the presumption against diversion,' then '[r]ejection based solely

on the nature of the offense is appropriate.'"       Ibid. (alteration in original)

(quoting State v. Caliguiri, 158 N.J. 28, 43 (1999)).

      "[T]he decision to grant or deny PTI is a 'quintessentially prosecutorial

function.'" Roseman, 221 N.J. at 624 (quoting State v. Wallace, 146 N.J. 576,

582 (1996)).    "As a result, the prosecutor's decision to accept or reject a

defendant's PTI application is entitled to a great deal of deference," ibid. (citing

State v. Leonardis, 73 N.J. 360, 381 (1977)), and our "scope of review is

severely limited," Waters, 439 N.J. Super at 225 (quoting State v. Negran, 178

N.J. 73, 82 (2003)).

      "[T]o 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.'" Waters, 439 N.J. Super. at 226 (quoting Watkins,

193 N.J. at 520). For an "abuse of discretion to rise to the level of 'patent and

gross,'" the defendant must demonstrate the prosecutor's decision to deny

admission "will clearly subvert the goals" of PTI. Roseman, 221 N.J. at 625


                                                                            A-4846-17T1
                                         6
(quoting State v. Bender, 80 N.J. 84, 93 (1979)). We will interfere with a

prosecutor's decision only in "the most egregious examples of injustice and

unfairness." Waters, 439 N.J. Super at 226 (quoting State v. Lee, 437 N.J. Super.

555, 563 (App. Div. 2014)).

      "A prosecutor is required to provide a criminal defendant with a statement

of reasons justifying his or her PTI decision, and the statement of reasons must

demonstrate that the prosecutor has carefully considered the facts in light of the

relevant law." Wallace, 146 N.J. at 584. We assume the "prosecutor considered

all relevant factors, absent a demonstration by the defendant to the contrary,"

and we limit our scrutiny "to the justification contained in the statement of

reasons" because the "defendant cannot 'compel the prosecutor to take the stand,'

either literally or figuratively, in the process of challenging his or her PTI

rejection decision." Ibid. (quoting Bender, 80 N.J. at 94).

      The prosecutor denied defendant's application for admission into PTI for

a number of reasons. Defendant was charged with second-degree offenses,

which carry a presumption against admission into PTI. The prosecutor also

found denial was supported by "[t]he nature of the offense;" "[t]he facts of the

case;" "[t]he needs and interests of the victim and society;" "the extent to which

[defendant] may present a substantial danger to others;" "the crime [was] of an


                                                                          A-4846-17T1
                                        7
assaultive or violent nature;" "the public need for prosecution" outweighed "the

value of supervisory treatment;" and "the harm done . . . by abandoning criminal

prosecution . . . outweigh[ed]" any societal benefits from allowing PTI. N.J.S.A.

2C:43-12(e)(1), (2), (3), (7), (9), (10), (14), (17).

      Defendant argues "the prosecutor accorded excessive weight to the

underlying criminal episode itself," and allowed defendant's charges "to eclipse

a meaningful, individualized assessment of his application." We disagree.

      It can hardly be said the prosecutor's rejection of defendant's PTI

application represents a patent and gross abuse of discretion that constitutes an

egregious example of injustice and unfairness.          The prosecutor properly

recognized the presumption against PTI for second-degree offenses. See e.g.,

Roseman, 221 N.J. at 623 (noting defendant must demonstrate "truly

extraordinary and unanticipated circumstances" to overcome the presumption of

incarceration for second-degree offenses (quoting Nwobu, 139 N.J. at 252)).

The prosecutor properly considered the "brutal nature" of this violent domestic

assault where the victim was "severely injured."        This was anything but a

"victimless" crime.      N.J.S.A. 2C:43-12(a)(3).       Thus, denying defendant

admission does not subvert the goals of PTI.




                                                                         A-4846-17T1
                                          8
      Defendant also submits the prosecutor's decision, at minimum, requires a

remand for reconsideration. We are unpersuaded by this argument.

      A reviewing court may "vacate a PTI rejection and remand to the

prosecutor for reconsideration" if it "finds that 'the prosecutor's decision was

arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and

gross abuse'" and "a remand will serve a useful purpose." Wallace, 146 N.J. at

583 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)). "Remand is the proper

remedy when, for example, the prosecutor considers inappropriate factors, or

fails to consider relevant factors." K.S., 220 N.J. at 200.

      A remand would serve no useful purpose. The prosecutor's eight-page,

single-spaced statement of reasons addressed each of the statutory factors. "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. A prosecutor is

permitted to treat domestic violence matters seriously.3 Wallace, 146 N.J. at

589-90. We discern no abuse of discretion by the prosecutor.




3
  Even under the current Rules, there would be a presumption against admission
into PTI because defendant was "charged with a[] crime or offense involving
domestic violence, as defined in N.J.S.A. 2C:25-19." R. 3:28-1(e)(2).
                                                                        A-4846-17T1
                                        9
      Last, the judgment of conviction incorrectly states defendant pleaded

guilty to second-degree aggravated assault. We are constrained to remand for

the limited purpose of entry of an amended judgment of conviction reflecting

the defendant's plea to third-degree aggravated assault.

      Affirmed and remanded for entry of a corrected judgment of conviction.

We do not retain jurisdiction.




                                                                     A-4846-17T1
                                      10
