                        NOT FOR PUBLICATION WITHOUT THE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-4059-15T1

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

HANIYYAH ALI,

     Defendant-Respondent.
___________________________________

              Argued January 10, 2017 – Decided           February 21, 2017

              Before Judges Ostrer and Leone.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Atlantic County,
              Indictment No. 15-08-2031.

              John J. Lafferty, IV, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for appellant (Diane M. Ruberton,
              Acting Atlantic County Prosecutor, attorney;
              Mr. Lafferty, of counsel and on the briefs).

              Tamar Lerer, Assistant Deputy Public Defender,
              argued the cause for respondent (Joseph E.
              Krakora, Public Defender, attorney; Ms. Lerer,
              of counsel and on the brief).

PER CURIAM

        The State appeals from the trial court's May 19, 2016, order

compelling defendant's enrollment in the Pretrial Intervention
Program (PTI) over the prosecutor's objection.       In an August 2015

Atlantic    County    indictment,   defendant,    Haniyyah     Ali,   was

originally charged with second-degree aggravated assault involving

serious    bodily    injury,   N.J.S.A.   2C:12-1(b)(1);   third-degree

possession of a weapon, a knife, for an unlawful purpose, N.J.S.A.

2C:39-4(d); and fourth-degree unlawful possession of a weapon, a

knife, N.J.S.A. 2C:39-5(d).1

     The State argues it did not engage in a gross and patent

abuse of discretion in denying PTI admission; therefore, the State

asks us to reverse the trial court's order and reinstate the denial

of PTI.    Defendant asks us to affirm the order.            We shall do

neither.   Having considered the parties' arguments in light of the

record and applicable law, we reverse the trial court's order, but

we remand for reconsideration because the prosecutor may have

applied a blanket rule to deny PTI whenever a violent crime victim



1
  The trial judge stated that the aggravated assault charge was
amended in February 2016 to a third-degree charge. However, the
record is not entirely clear on that point, as it does not include
a conforming order, and the prosecutor stated in her April 2016
rejection letter that the prosecutor "may" amend the indicted
charge to a third-degree charge "for the purposes of a plea." On
the other hand, the criminal division manager's March 2016
rejection did not refer to the crime charged as one in the first
or second-degree range. Also, in oral argument on the motion to
compel admission to PTI, defense counsel asserted, without
contradiction, that the indictment was amended on the record before
a different judge. However, we have not been provided with the
transcript.

                                    2                            A-4059-15T1
objects to admission.       As a result, the prosecutor may have

disregarded relevant factors.         See State v. Baynes, 148 N.J. 434,

445 (1997).    Under such circumstances, even if a patent and gross

abuse   of   discretion   has   not    been   established,   a   remand    is

appropriate.    See State v. K.S., 220 N.J. 190, 200 (2015).

                                      I.

     When defendant applied for PTI, she had no prior criminal

convictions, or adjudications of delinquency.          This case was her

first contact with the criminal justice system.         She had overcome

challenges of a disadvantaged youth and, before the incident, was

gainfully employed as a New Jersey Transit bus driver.           Defendant

was also a twenty-five-year-old single mother of two children.

     On June 9, 2015, after working a ten-hour shift, defendant

headed to an Atlantic City playground to pick up her children.

Her identical twin sister had been watching them for the day.              As

she approached the playground, a fight broke out involving her

sister and several other women, including the victim, K.H.              K.H.

knew defendant and her sister because defendant's sister had a

child with K.H.'s brother.      In the course of the altercation, K.H.

was stabbed near the armpit, suffered a partially collapsed lung,

and was hospitalized for three days. According to a police report,

the stab wound was caused by a four-inch-long knife.



                                      3                             A-4059-15T1
      The State contends defendant stabbed K.H.              K.H. alleged that

after the fight initially stopped, defendant briefly returned to

her vehicle, then approached K.H. again, and struck her in the

chest.      Only later did K.H. realize she was stabbed.

      Defendant    disputes    the   State's       version   of    events.       She

contends K.H. and her cohorts were the aggressors.                     She also

contests the allegation that she wielded a knife.                 The person who

drove with defendant to the playground certified that she never

returned to the vehicle during the altercation.                   According to a

police report, K.H. initially identified her assailant as the

mother of her brother's child — in other words, defendant's sister.

      The    criminal   division     manager    rejected        defendant's      PTI

application.     She cited the violent nature of the offense charged,

and Guideline 3(i).        See Guidelines for Operation of Pretrial

Intervention in New Jersey (Guidelines), Pressler & Verniero,

Current N.J. Court Rules, Guideline 3(i) at 1235 (2017).                She also

noted the victim's opposition to defendant's admission into PTI.

She   acknowledged      that   defendant       met    "several      factors      for

admission,     including   having    no    prior     criminal     history    and    a

consistent history of employment[.]"               However, "[t]he facts of

this case and the wishes of the victim outweigh any benefits that

would be realized through diversion."



                                       4                                    A-4059-15T1
     The prosecutor concurred in the rejection.            As did the

criminal division manager, the prosecutor focused on the nature

of the offense and the victim's opposition, which outweighed

defendant's amenability to rehabilitation.        After citing factors

one (the nature of the offense), two (the facts of the case) and

ten (whether the crime was of an assaultive or violent nature),

see N.J.S.A. 2C:43-12(e)(1), (2), (10), she concluded that the

violent   and   assaultive   nature   of   the   offense   triggered    a

presumption of rejection:

          [T]he matter was properly the subject of a
          presumptive rejection in the offense was
          deliberately committed with violence or the
          threat of violence against another person.
          The defendant was indicted for an Aggravated
          Assault, second degree, Possession of a Weapon
          for Unlawful Purpose, third degree and
          Unlawful Possession of a Weapon, fourth
          degree.

The prosecutor reviewed the facts of the incident from the State's

perspective, and then concluded:

          The presumption against enrollment for crimes
          of violence is appropriate in this case
          because the defendant used a deadly weapon to
          inflict the victim's injuries.     Crimes of
          violence, especially [those] in which injury
          is inflicted by the use of a deadly weapon,
          require the greater level of deterrence
          available     through     formal     criminal
          prosecution.

The prosecutor acknowledged that defendant disputed the State's

version of events, but that did not affect her decision.

                                  5                             A-4059-15T1
          The defense denies the possession or use of a
          deadly weapon by the defendant. The defense
          further claims that the defendant was acting
          in self-defense and in defense of others by
          protecting her sisters.     If the defendant
          truly believes that she did not stab the
          victim or was justified in the use of force,
          then she should seek an acquittal at trial.
          PTI is an inappropriate forum for widely
          divergent factual situations.

     The prosecutor also relied on the victim's opposition, citing

factor 4, N.J.S.A. 2C:43-12(e)(4).

          [T]he victim is opposed to the diversion of
          the defendant. It is understandable that the
          victim would be opposed given the injury that
          she sustained and her hospitalization.    The
          State is unwilling to discount the victim's
          opposition by agreeing to diversion in this
          case.

     Finally, citing factors 14 (whether the public need for

prosecution would outweigh the value of supervisory treatment),

and 17 (whether the harm to society from not prosecuting outweigh

the benefits of diversion), see N.J.S.A. 2C:43-12(e)(14), (17),

the prosecutor acknowledged, but found unavailing, defendant's

amenability to supervision and the benefits that would be achieved

through her admission:

          [T]he nature of the offense, the facts of the
          case and the strong need to deter this
          defendant and others similarly situated
          outweigh any benefits that would be realized
          through diversion. The State has reviewed the
          materials submitted by the defense on behalf
          of the defendant. The State recognizes that
          the defendant has had gainful employment in

                                6                          A-4059-15T1
          the past, is the sole provider for her two
          children, is remorseful and has no criminal
          history.   These factors may be relevant for
          sentencing but are not considered compelling
          as to overcome the presumption of enrollment
          for crimes of violence.    The State is also
          aware that the decision not to divert would
          negatively impact the defendant's chance to
          reapply for her job. The State has considered
          that impact, however, the need for specific
          and general deterrence warrant formal criminal
          prosecution.

     Defendant appealed to the Law Division.     Referring to the

State's brief, which is not before us, defense counsel argued the

prosecutor gave undue weight to the victim's preferences.        The

assistant prosecutor — who was not the one who signed the rejection

letter — defended the State's reliance on the victim's views.    She

argued:

          [O]n page six [of the State's brief] I write,
          the program is intended for victimless
          offenses only. And that's accurate. It is
          intended for victimless offenses only. There
          are times where aggravated assaults do get
          into PTI.   However . . . those are . . .
          typically times when the victim does consent
          to the entry.

     The assistant prosecutor amplified her view that a victim's

opposition was controlling:

          [W]hen the entire case focuses on a serious
          assault, of course the victim has control. I
          mean, if the victim doesn't want to come to
          court, doesn't want to have anything to do
          with it, that's considered. If the victim is
          in the hospital for a long period of time, is
          very aggrieved by the situation, is out of

                                7                           A-4059-15T1
          work, is scared, is hurt, of course, we take
          that into consideration.    So, I think that
          it's not really accurate to say that the
          victim shouldn't control the prosecution. In
          fact, they do and they're very involved.

     The trial court granted defendant's appeal and ordered her

acceptance into PTI.         In a written decision, the judge rejected

the State's contention that "the program is intended for victimless

offenses only."       The judge found that both the criminal division

manager and the prosecutor gave insufficient weight to the facts

of the case.    Closely analyzing the competing versions of events,

the court identified weaknesses in the State's proofs, noting the

possibility    that    the    victim    misidentified   defendant   as   her

assailant, as opposed to her identical twin sister; the victim's

bias against defendant and her sister; and the lack of any other

eyewitness to the stabbing.         The court also highlighted the fact

that defendant's involvement in the altercation was unexpected;

she became involved to defend her sister and children; and the

victim was not without fault, having participated in the fight.

The court concluded the rejection was "arbitrary, unreasonable,

and otherwise capricious" based on the failure to "consider all

of the salient facts, combined with the Defendant's lack of

propensity for violence."

     The State's appeal followed.            The State contends defendant

failed   to    present       evidence   of   "extraordinary   or    unusual

                                        8                           A-4059-15T1
circumstances"   that   would   compel   overriding   the   presumption

against admission in cases of violent crime.           The State also

disavowed the views expressed by the assistant prosecutor in oral

argument, and asserted that they did not affect the rejection set

forth in the earlier letter that a different assistant prosecutor

signed.    The State contended that even if it failed to consider

all relevant factors, a remand for reconsideration, as opposed to

an order compelling admission, was appropriate.

       Defendant contends the prosecutor's reliance on the victim's

opposition amounted to an unauthorized per se rule.         She argues

the trial court correctly found that the prosecutor committed a

patent and gross abuse of discretion in denying her admission to

PTI.

                                  II.

       We afford prosecutors "broad discretion to determine if a

defendant should be diverted."    K.S., supra, 220 N.J. at 199.      Our

scope of review is "severely limited[,]" and addresses "only the

most egregious examples of injustice and unfairness."         State v.

Negran, 178 N.J. 73, 82 (2003) (internal quotation marks and

citation omitted).      "[T]o overturn a prosecutor's decision to

exclude a defendant from the program, the defendant must clearly

and convincingly show that the decision was a patent and gross



                                   9                            A-4059-15T1
abuse of . . . discretion."        K.S., supra, 220 N.J. at 200 (internal

quotation marks and citation omitted).

       However,     "[i]ssues     concerning      the     propriety          of     the

prosecutor's consideration of a particular [PTI] factor are akin

to 'questions of law[.]'"            State v. Maddocks, 80 N.J. 98, 104

(1979).   "Consequently, on such matters an appellate court is free

to substitute its independent judgment for that of the trial court

or the prosecutor should it deem either to have been in error."

Id. at 105; see also Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan,    140     N.J.    366,      378    (1995)     ("A        trial   court's

interpretation of the law and the legal consequences that flow

from    established     facts     are    not    entitled        to     any   special

deference.").

       A prosecutor must set forth his or her reasons for rejecting

a PTI candidate.      State v. Nwobu, 139 N.J. 236, 248-49 (1995).                    A

prosecutor "may not simply 'parrot' the language of relevant

statutes, rules, and guidelines."               Id. at 249.            Among other

purposes, a detailed and defendant-specific statement of reasons

enables   a   defendant      to   respond,     promotes    confidence        in     the

prosecutor's decision making, and facilitates judicial review.

Ibid.

       The prosecutor may not weigh inappropriate factors, or ignore

appropriate factors.          K.S., supra, 220 N.J. at 200.                       A PTI

                                        10                                   A-4059-15T1
rejection    "must   reflect    only     a    proper     consideration    of    the

identified information . . . ."              Id. at 198 (internal quotation

marks and citation omitted).        Although the facts of the case and

the nature of the offense are appropriate considerations, "the PTI

process is not designed to assess the weight of the State's case.

'[T]he appropriate administration of the program militates against

basing enrollment upon the weight of the evidence of guilt.'"

Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J.

143, 147 (1983)).

     A prosecutor is not required to address each of the seventeen

statutory    criteria   for    participation.            See   N.J.S.A.    2C:43-

12(e)(1)-(17).   A reviewing court shall "presume that a prosecutor

considered all relevant factors, absent a demonstration by the

defendant to the contrary."        State v. Wallace, 146 N.J. 576, 584

(1996).   However, a prosecutor may not establish an inappropriate

blanket or per se rule barring admission; doing so means the

prosecutor has failed to consider all relevant factors.                See State

v. Caliguiri, 158 N.J. 28, 44 (1999); see also Baynes, supra, 148

N.J. at 445.

     Any defendant may apply for PTI, but the Guidelines create a

rebuttable    presumption      against       admission    in   cases   involving

certain   crimes,    including    those       "deliberately     committed      with

violence or threat of violence against another person[.]" Pressler

                                       11                                 A-4059-15T1
& Verniero, supra, Guideline 3(i) at 1235.            In such cases, "the

defendant's application should generally be rejected."              Ibid.; see

also Baynes, 148 N.J. at 442.

     To    neutralize     such   a     presumption,   an    applicant      must

demonstrate "extraordinary and unusual circumstances."               State v.

Roseman, 221 N.J. 611, 663-24 (2015). These may pertain to aspects

of a defendant's background.         Id. at 623 (citing Nwobu, supra, 139

N.J. at 252-53).     But, the facts of the case may also satisfy a

showing of extraordinary and unusual circumstances.              See id. at

626-27 (finding the factual circumstances of the offense and the

defendant's    own   actions     to     report   it   "were    sufficiently

'extraordinary and unusual' to overcome the presumption against

PTI for second-degree offenses").

     In     determining      whether        extraordinary     and     unusual

circumstances exist, a court must engage in a "fact-sensitive

analysis    that     requires        consideration    of    'idiosyncratic'

circumstances demonstrating that denial of PTI has resulted in a

'serious injustice.'"      Id. at 624 (quoting Nwobu, supra, 139 N.J.

at 252).   Furthermore, when the defendant is charged with a third-

degree offense, the Court has declared that the weight of evidence

required to rebut the presumption against PTI is not as great as

if the defendant faced a second-degree charge.             Caliguiri, supra,

158 N.J. at 44.

                                       12                              A-4059-15T1
     To meet the "gross and patent abuse of discretion" standard

to justify supplanting the prosecutor's decision, a defendant must

satisfy one of three factors and must also show the prosecutor's

decision undermines the purpose of PTI:

          Ordinarily, an abuse of discretion will be
          manifest if defendant can show 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. 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
          Pretrial Intervention.

          [State v. Bender, 80      N.J.   84,   93   (1979)
          (citation omitted).]

     However, when a defendant has not met this high standard, but

nonetheless has demonstrated an abuse of discretion — for example,

the prosecutor considered inappropriate factors — a remand is

appropriate.

          When a reviewing court determines that the
          "prosecutor's    decision    was    arbitrary,
          irrational,   or   otherwise   an   abuse   of
          discretion, but not a patent and gross abuse
          of discretion," the reviewing court may remand
          to the prosecutor for further consideration.
          Remand is the proper remedy when, for example,
          the   prosecutor    considers    inappropriate
          factors,   or   fails   to   consider relevant
          factors.

          [K.S., supra, 220 N.J. at 200 (quoting State
          v. Dalglish, 86 N.J. 503, 509 (1981)).]

                               13                              A-4059-15T1
     As the Court explained, this middle-ground preserves the

opportunity for the exercise of the prosecutor's discretion, while

assuring that the PTI standards are properly employed.    Ibid.

                                III.

     Applying these principles, we conclude the trial court erred

in compelling defendant's admission into PTI.       The trial court

appropriately reviewed the prosecutor's consideration of the facts

of the case.    However, the court appeared to fault the prosecutor

for failing to consider the weaknesses in the State's case.       The

court focused on defendant's allegations that she confronted a

fight unexpectedly, the victim was a participant, and defendant

may have been motivated by a desire to protect her sister and

children.   As noted, the PTI process is not designed to assess the

strength of the State's case.

     The trial court also did not clearly articulate whether

"extraordinary and unusual circumstances" existed to overcome the

presumption against admission into PTI of persons charged with

deliberately violent offenses.        Instead, we are convinced the

trial judge substituted his judgment for the prosecutor's, which

is inconsistent with the required deferential standard of review.

See Wallace, supra, 146 N.J. at 589 (reversing where "court

essentially evaluated the case as if it stood in the shoes of the

prosecutor").

                                 14                         A-4059-15T1
      On the other hand, we are unconvinced the prosecutor fairly

considered all relevant factors.            Our doubts are grounded in the

assistant prosecutor's remarks at oral argument — and, apparently,

in her written submission — that PTI is only appropriate for

victimless crimes, or cases in which the victim does not object.

We recognize that the views of the victim are relevant to the

prosecutor's decision.       See N.J.S.A. 2C:43-12(e)(4); see also N.J.

Const., art. I, para. 22 (stating "A victim of a crime shall be

treated with fairness, compassion and respect by the criminal

justice system.").      And, one goal of PTI is to divert defendants

in cases of "victimless" crimes.            See Pressler & Verniero, supra,

Guideline 1(c) at 1233.        Yet, a per se rule granting victims a

veto over her assailant's admission into PTI is unauthorized by

the   statute    or   the   Guidelines.        The     assistant     prosecutor's

statements      raise   questions      about     whether       the       prosecutor

considered, and gave due weight to other relevant factors.

      We cannot accept the State's argument that the assistant

prosecutor's     statements     were    an     unauthorized        and    mistaken

expression of prosecutor's office policy, and that they did not

affect the office's earlier written denial.                    Apparently, the

remarks were not impromptu, but repeated a point of view that was

expressed in the State's brief, which we presume received some

level   of   supervisory    review.         Although    the   earlier,      written

                                       15                                   A-4059-15T1
rejection letter did not express a per se rule, we lack confidence

to conclude that such a rule was not at work.          Rather, a remand

is necessary for reconsideration of defendant's application, free

of any per se rule recognizing a victim veto.

     In   reconsidering   defendant's   application,    the   prosecutor

should also engage in a fact-sensitive analysis as to whether

defendant has overcome the presumption against admission in a case

of deliberate violence.   In determining whether defendant presents

extraordinary and unusual circumstances, the prosecutor should,

consistent with Roseman, consider not only defendant's personal

background, but the facts of the case.     If the aggravated assault

charge has already been amended to a third-degree charge, the

prosecutor should also be mindful that defendant bears a lesser

burden than she did when she faced a second-degree charge.

     Reversed and remanded.    We do not retain jurisdiction.




                                 16                              A-4059-15T1
