                                      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                                NOT FOR PUBLICATION WITHOUT THE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-0429-18T3

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

CALVIN J. CHOW,

     Defendant-Respondent.
_____________________________

                    Submitted February 28, 2019 – Decided April 30, 2019

                    Before Judges Simonelli and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-07-
                    1091.

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for appellant (Patrick F. Galdieri, Assistant
                    Prosecutor, of counsel and on the brief).

                    Law Office of Howard S. Teitelbaum, LLC, attorneys
                    for respondent (David A. Parinello, of counsel and on
                    the brief).

PER CURIAM
      The State appeals from the September 14, 2018 order of the Law Division

admitting defendant Calvin Chow into the Middlesex County Pretrial

Intervention Program (PTI) over its objection. We reverse.

      Defendant and M.M. were in a one-week relationship in 2014 or 2015. 1

M.M. sent defendant several nude photographs during the course of their

relationship.   At the time, M.M. was eighteen or nineteen years old and

defendant was twenty-eight or twenty-nine years old.         A year later, M.M.

discovered her nude photographs with her name and address on an Internet

website that permitted users to submit anonymous naked pictures. M.M. did not

give permission for her photos to be posted. She reported this to the police, but

the police could not determine who posted them.

      On December 2, 2017, more nude photographs of M.M. were posted on

the same website.     M.M. recognized the user name as defendant's.            She

confronted him through Facebook Messenger, and he responded, "I know you're

right [I] fucked up, it's not [going to] happen again. . . . [I] [d]idn't know what

I was thinking and how it would [affect people]." M.M. reported defendant to




1
   The facts are derived from a combination of the police report, the probation
officer's interview with and assessment of defendant, and the prosecutor's PTI
letter. No sworn testimony was given in this case.
                                                                           A-0429-18T3
                                        2
the police, and he was charged with two counts of third-degree invasion of

privacy, N.J.S.A. 2C:14-9(c), for the 2017 posts.

      Defendant applied to PTI. Admission into PTI requires recommendation

by the program manager and acceptance by the prosecutor. N.J.S.A. 2C:43-

12(e). Both the program manager and prosecutor "shall consider" the following

factors in rendering an admission decision:

                  (1) The nature of the offense;

                  (2) The facts of the case;

                  (3) The motivation and age of the defendant;

                  (4) The desire of the complainant or victim to
                  forego prosecution;

                  (5) The existence of personal problems and
                  character traits which may be related to the
                  applicant's crime and for which services are
                  unavailable within the criminal justice system, or
                  which may be provided more effectively through
                  supervisory treatment and the probability that the
                  causes of criminal behavior can be controlled by
                  proper treatment;

                  (6) The likelihood that the applicant's crime is
                  related to a condition or situation that would be
                  conducive to change through his participation in
                  supervisory treatment;

                  (7) The needs and interests of the victim and
                  society;


                                                                       A-0429-18T3
                                       3
(8) The extent to which the applicant's crime
constitutes part of a continuing pattern of anti-
social behavior;

(9) The applicant's record of criminal and penal
violations and the extent to which he may present
a substantial danger to others;

(10) Whether or not the crime is of an assaultive
or violent nature, whether in the criminal act
itself or in the possible injurious consequences of
such behavior;

(11) Consideration of whether or not prosecution
would exacerbate the social problem that led to
the applicant's criminal act;

(12) The history of the use of physical violence
towards others;

(13) Any involvement of the applicant with
organized crime;

(14) 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;

(15) Whether or not the applicant's involvement
with other people in the crime charged or in other
crime is such that the interest of the State would
be best served by processing his case through
traditional criminal justice system procedures;

(16) Whether or not the applicant's participation
in pretrial intervention will adversely affect the
prosecution of codefendants; and



                                                      A-0429-18T3
                     4
                   (17) 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.

                   [Ibid.]

PTI is intended for defendants in need of rehabilitative services and "when there

is an apparent causal connection between the offense charged and the

rehabilitative need, without which cause both the alleged offense and the need

to prosecute might not have occurred." Guidelines for Operation of Pretrial

Intervention, Pressler & Verniero, Current N.J. Court Rules, Guideline 1,

following R. 3:28 at 1289 (2018).2 Thus, a PTI determination requires an

"individualized assessment of the defendant considering his or her 'amenability

to correction' and potential 'responsiveness to rehabilitation.'" State v. Roseman,

221 N.J. 611, 621-22 (2015) (quoting State v. Watkins, 193 N.J. 507, 520

(2008)); see also State v. Nwobu, 139 N.J. 236, 255 (1995) (quoting State v.




2
   Effective July 1, 2018, the former Rule 3:28, which contained several
guidelines for PTI assessments, was revised and replaced by Rules 3:28-1 to -
10. The new rules more closely track the statutory factors and case law.
However, because defendant's PTI assessment was made on June 19, 2018, the
former version of the rules apply. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 473 n.4 (2018) (applying "version of Rule 3:28 and the
accompanying Guidelines and Comments that governed when [the defendant]
was admitted to PTI").
                                                                           A-0429-18T3
                                        5
Sutton, 80 N.J. 110, 119 (1979)) ("PTI decisions are 'primarily individualistic in

nature . . . .'").

       During his interview, defendant asserted he was a good candidate for PTI

because this was his first adult offense, he maintains full-time employment, he

is a college graduate, and PTI would deter him from future criminal activity.

The Middlesex County Criminal Division Manager declined to recommend

defendant to PTI.

       The prosecutor agreed and denied defendant's PTI application.          The

prosecutor provided defendant with a statement of reasons, listed each statutory

factor, as required by N.J.S.A. 2C:43-12(e), and explained why each factor

worked in favor of or against defendant's admission. The prosecutor afforded

weight to the nature of the offense—the non-consensual posting of nude

photographs—and the facts of the case. No weight was given to the motivation

and age of defendant because he offered no evidence or explanation as to why

he acted but only mentioned that he was thirty-one years old. Factor five—the

existence of personal problems for which services in the criminal justice system

are not available—was inapplicable because "[d]efendant has provided nothing

to suggest that he is in need of services that are unavailable in the criminal

justice system."     Nor was any weight placed on factor eleven—whether


                                                                          A-0429-18T3
                                        6
prosecution would exacerbate a social problem that led to the defendant's

actions—because defendant "provided nothing to suggest that this is the case."

The prosecutor also discussed the public policy interest in the need to deter the

act of posting nude photographs without the subject's consent.

      M.M. wrote a victim statement and explained that seeing her nude

photographs posted online traumatized her, caused her to develop "anxiety,

depression and PTSD," and "crushed every ounce of self-esteem [she] had."

Thus, the prosecutor cited factor four—the victim's resistance to the defendant's

admission into PTI—as weighing against defendant's admission.

      Defendant appealed to the trial court and argued the charged offense

"involves the defendant 'posting' a photo which the alleged victim had

apparently . . . taken with her consent and which the alleged victim provided to

the defendant through electronic means." Defendant expressed his remorse ,

motivation not to re-offend, college education and his steady employment as

reasons for admission into PTI. In support of factor five, defendant explained,

"[he] is a member of a new generation wherein the lines are blurred with the

explosion of social media." Defendant admitted to "a huge lapse in judgment"

and stated, "[t]he PTI program is ideal in this respect as counseling would

undoubtedly be a requirement of admission therein."


                                                                         A-0429-18T3
                                       7
      After hearing oral argument on September 14, 2018, the trial judge

addressed each factor concerning PTI admission and made his own findings as

to whether each favored the State or defendant. In discussing factors three and

six, the trial judge faulted the prosecutor for "parroting" the statutory language

and not offering a substantive reason as to why these factors did not fa vor

defendant's admission. When discussing factor six, the judge stated, "[i]t is

likely that [d]efendant's crime is related to a condition or situation that would

be conducive to change through his participation in a supervisory program. As

the defense alleges, [d]efendant is in need of counseling and he could get

counseling through a supervisory treatment program . . . ."

      The judge found factors seven and fourteen, both concerning societal

interests, favored defendant.     The judge faulted the prosecutor for only

considering the general need for deterrence of crimes like the one defendant was

alleged to have committed and not the facts of the case, and, as a result, he found

the prosecutor's analysis of defendant's application a categorical exclusion from

PTI based solely on the nature of the offense.

      During the hearing, defendant's counsel argued "that in this day and age

the lines are very blurred when it comes to social media," to which the

prosecutor responded "there[] were no blurred lines. This was revenge porn."


                                                                           A-0429-18T3
                                        8
The judge asked "[t]his is what kind of porn? [A:] Revenge porn. [Q:] Revenge

for what? I don't know anything about revenge." The prosecutor explained the

"victim was particularly traumatized by the incident," which the judge

minimized by making a joke.        Thereafter, the judge found the prosecutor

committed a gross abuse of discretion and ordered defendant into PTI.

      The prosecutor immediately asked the judge to reconsider his decision,

which the judge declined to do. The State appealed and argues that because

defendant did not establish by clear and convincing evidence that the State's

decision to reject his PTI application was a patent and gross abuse of discretion,

the trial court erred by admitting defendant into PTI. We agree.

      A defendant denied access to PTI can appeal the decision to the trial judge,

but the prosecutor's decision "is entitled to a great deal of deference." Roseman,

221 N.J. at 624. "Trial courts may overrule a prosecutor's decision to accept or

reject a PTI application only when the circumstances '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.'" Id. at 624-25 (quoting

State v. Wallace, 146 N.J. 576, 582 (1996)); see also State v. Leonardis, 73 N.J.

360, 380 n.10 (1977) ("While we expect that the prosecutor's decision rarely will

be overturned, review will guarantee that the judge's skill in assessing the


                                                                           A-0429-18T3
                                        9
various factors enumerated in Guideline 3 and in drawing legal conclusions from

them are fully utilized."). A showing of "a patent and gross abuse of discretion"

requires proof "that a prosecutorial veto (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 in

[judgment.]" Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 N.J. 84, 93

(1979)). A trial court can admit a defendant into PTI over the prosecutor's

objection upon such a showing. Ibid. We apply the same standard as the trial

court and review its decision de novo. State v. Waters, 439 N.J. Super. 215, 226

(App. Div. 2015).

      The State argues the judge did not apply the appropriate level of deference

to the PTI review but rather substituted his own judgment. The State contends

the judge did not recognize that the prosecutor addressed all the relevant factors

and considered defendant's amenability to rehabilitation.        The prosecutor

ultimately concluded defendant's motivation to seek rehabilitative services was

"unclear" because, other than expressing remorse, defendant provided no

evidence he wanted to engage with services. Moreover, the State argues it was

proper to take the nature of defendant's offense into account.




                                                                          A-0429-18T3
                                       10
      The State characterizes defendant's alleged actions as "revenge porn" and

provides several citations defining the term "as nonconsensual pornography: the

distribution of sexually graphic images of individuals without their consent,"

(quoting Patel v. Hussain, 485 S.W. 3d 153, 157 n.1 (Tex. App. 2016)). Revenge

is not an element of the charged offense but describes the act of posting an ex-

romantic partner's nude photographs on the Internet in retaliation. For purposes

of the crime charged, invasion of privacy, what matters is the victim's lack of

consent.

      State v. Nicholson, 451 N.J. Super. 534 (App. Div. 2017), is instructive.

There, the defendant was charged with third-degree invasion of privacy for

posting a photo of a woman's intimate parts on the Internet without her consent

and was denied entry into the PTI program. Id. at 539-40. We explained it was

appropriate for the prosecutor to account for the effect the offense had on the

victim. Id. at 554. The State argues, here, that the trauma defendant's actions

caused M.M. was a relevant and weighty consideration. We agree.

      Defendant seeks to distinguish Nicholson by arguing, in this case, M.M.

volitionally sent photographs to defendant, while the victim in Nicholson did




                                                                        A-0429-18T3
                                      11
not consent to being photographed. We reject defendant's premise. 3 M.M.'s

consent, as to both the taking and posting of her photographs, goes to defendant's

culpability and is unrelated to defendant's amenability to rehabilitation. Rather,

in Nicholson we said, "[t]he prosecutor properly considered the devastating

effect of defendant's conduct on the victim, who became withdrawn and

frightened and who opposed PTI to deter defendant from victimizing anyone

else." Ibid. Here, it was wholly appropriate for the prosecutor to place weight

on M.M.'s victim impact statement. It was inappropriate for the trial judge to

conclude factor seven favored defendant.

      A reviewing court does not evaluate the prosecutor's PTI decision "as if it

[stands] in the shoes of the prosecutor." State v. Hoffman, 399 N.J. Super. 207,

216 (App. Div. 2008) (alteration in original) (quoting Wallace, 146 N.J. at 589).

"The question is not whether [the court] agree[s] or disagree[s] 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.

Thus, the analysis consists of determining whether the prosecutor's decision was

arbitrary, not evaluating the substantive weight the prosecutor placed on



3
   We also put aside defendant's suggestion that we adopt the thought that
consent in one context is consent in all contexts.
                                                                          A-0429-18T3
                                       12
relevant factors. See Roseman, 221 N.J. at 625. After reviewing the record, we

agree with the State that the judge exceeded his scope of review by making

findings as to which factor he thought favored the respective parties. The role

of the reviewing court is to police for a "patent and gross abuse of discretion"

by the prosecutor, not to substitute its judgment for the prosecutor's. Nwobu,

139 N.J. at 254-55.

      We reject the argument the prosecutor's decision constituted a categorical

exclusion based on the crime charged.       The basis for exclusion was that

defendant put forth no evidence indicating his amenability to rehabilitation. The

only individualized information defendant provided to the prosecutor was that

he was thirty-one years old, a college graduate, and steadily employed. He

reported being in good physical and mental health and denied needing any form

of treatment.      Based on this information, the prosecutor concluded his

motivation to commit the offense was "unclear" and "[d]efendant has provided

nothing to suggest he is in need of services that are unavailable in the criminal

justice system."      Ultimately, the prosecutor afforded factor three—the

defendant's age and motivation—no weight because defendant's submissions

were inconclusive. We do not consider this an arbitrary decision.




                                                                         A-0429-18T3
                                      13
      Perhaps the most troubling aspect of the trial judge's decision was the

minimization of the impact on the victim. Defendant suggested M.M's role in

sending photographs to him actually absolves him of wrongdoing and justifies

leniency. For the judge to find factor seven—which considers the victim's

interests—to favor defendant not only exceeds the scope of review but

undermines the PTI program as an extension of the prosecutor's charging

authority. State v. Baynes, 148 N.J. 434, 443 (1997).

      Reversed.




                                                                      A-0429-18T3
                                     14
