                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-5329-14T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,                   APPROVED FOR PUBLICATION

v.                                                    March 27, 2017

JAMES DENMAN,                                      APPELLATE DIVISION


          Defendant-Appellant.
—————————————————————————————————————

         Argued December 1, 2016 – Decided          March 27, 2017

         Before Judges Lihotz, Hoffman and Whipple.

         On appeal from Superior Court of New Jersey,
         Law Division, Union County, Accusation No.
         15-03-0189.

         Michael   Noriega    argued   the   cause   for
         appellant   (Bramnick,     Rodriguez,   Grabas,
         Arnold   &   Mangan,    LLC,   attorneys;   Mr.
         Noriega, of counsel and on the briefs).

         Diana-Marie    Laventure,    Special    Deputy
         Attorney       General/Acting        Assistant
         Prosecutor, argued the cause for respondent
         (Grace   H.   Park,   Acting    Union   County
         Prosecutor, attorney; Ms. Laventure, of
         counsel and on the brief).

     The opinion of the court was delivered by

HOFFMAN, J.A.D.

     Defendant    James   Denman,   a   former   Scotch    Plains      police

officer, appeals from his conviction for third-degree attempted
misapplication        of   funds,    N.J.S.A.     2C:21-15     and     2C:5-1.

Defendant pled guilty to the charge pursuant to a plea agreement

that called for him to receive a probationary term and forfeit

his position as a police officer.1             On May 22, 2015, the court

sentenced     defendant    to   a   two-year     term    of   probation     and

forfeiture of public office.

    On      appeal,    defendant    presents    the     following    arguments

challenging the May 18, 2015 Law Division order, which denied

his appeal of the State's rejection of his PTI application:

            THE STATE'S DENIAL OF MR. DENMAN FROM PTI
            WAS A PATENT AND GROSS ABUSE OF DISCRETION
            ON MULTIPLE LEVELS AND REQUIRES THIS COURT
            TO REVERSE AND REMAND THIS MATTER WITH CLEAR
            INSTRUCTIONS TO THE PROSECUTOR'S OFFICE FOR
            RECONSIDERATION:

                 A) MR DENMAN DID NOT BREACH THE
                 PUBLIC   TRUST    UNDER   GUIDELINE
                 3(i)(4) AS THE OFFENSE DEALT WITH
                 A PRIVATE ORGANIZATION AND WAS IN
                 NO WAY CONNECTED TO MR DENMAN'S
                 SEPARATE PUBLIC EMPLOYMENT.

                 B) THE STATE'S UNFAIR RELIANCE ON
                 IRRELEVANT    AND    INAPPROPRIATE
                 FACTORS; SUCH AS MR. DENMAN'S
                 OCCUPATION AS A POLICE OFFICER
                 RESULTED IN AN UNJUST REJECTION
                 FROM THE PTI PROGRAM AND MUST BE
                 REVERSED.



1   In addition, the agreement allowed defendant to appeal the
order denying his motion to compel his admission into the pre-
trial   intervention  (PTI)  program  over   the   prosecutor's
objection.



                                      2                               A-5329-14T1
                    C) NOT ONLY WAS THERE A PATENT AND
                    GROSS ABUSE OF DISCRETION BY THE
                    PROSECUTOR, BUT THE PROSECUTOR'S
                    DECISION COMPLETELY SUBVERTS THE
                    GOALS UNDERLYING THE PTI PROGRAM;
                    WHERE A TRUE EVALUATION OF THE
                    CRITERIA WOULD REVEAL THAT MR.
                    DENMAN IS AN IDEAL CANDIDATE FOR
                    THE PROGRAM.

    Having reviewed the record in light of the applicable legal

standards, we conclude both the prosecutor and the trial court

mistakenly        applied    PTI      Guideline        3(i).           They   rejected

defendant's       application        because     the   charge      of     third-degree

attempted    misapplication          of     funds   from     the   Police     Athletic

League (PAL) constituted a breach "of the public trust."                          This

determination is erroneous.                 Therefore, we reverse the order

denying     his    PTI    appeal      and    remand    for     reconsideration       of

defendant's application by the prosecutor.

                                            I.

    We derive the following facts from the record.                        In December

2013,   defendant        faced   a   financial      crisis.        A    fifty-year-old

father of four children, defendant had one child in college with

a tuition bill due.         At the same time, defendant's ex-wife could

not pay her share of the mortgage on the house where his three

high-school-age children lived.

    At that point, defendant made, as described in his brief,

"the objectively poor choice of borrowing the money he needed




                                             3                                A-5329-14T1
from the Police Athletic League of Scotch Plains."                        Defendant

had been the treasurer of this non-profit organization for the

previous ten years; therefore, he had access to all of PAL's

banking   information    and    accounts.          Defendant     contacted     PAL's

accountant and asked him if he could borrow money from PAL's

bank account.      The accountant advised defendant he needed to

check the PAL by-laws regarding such a loan, and if permitted,

the loan should bear five percent interest.                       The accountant

further advised defendant he needed to get the approval from the

other PAL board members and sign a promissory note for the loan.

     On December 17, 2013, defendant wrote himself a check for

$18,000   from   the   PAL    checking       account.        Notwithstanding     the

accountant's advice, defendant failed to sign a promissory note

or obtain the approval of the other board members.                     In the memo

portion of the check, defendant wrote "loan at 5%."                       Defendant

deposited the check into his personal bank account.

     Approximately      four     months       later,    on     April     24,   2014,

defendant paid the loan in full, together with five percent

interest, by issuing a check from his personal checking account

to PAL for $18,440.2         Before issuing the check, defendant called

the accountant to determine the amount of interest he owed.                       On



2     Defendant    repaid      the   loan     by   borrowing     money    from   his
pension.



                                         4                                 A-5329-14T1
the memo portion of the repayment check, defendant wrote "repay

+ interest."

      On May 30, 2014, over one month after defendant paid off

the   loan,    the    Union     County    Prosecutor's    Office       received   an

anonymous phone call reporting defendant stole $24,000 from PAL.

Following      this     phone     call,       an   investigation       began,     and

defendant's unauthorized borrowing from the PAL account became

known.   Defendant was subsequently charged with misappropriation

of entrusted funds.

      Defendant       applied    for     PTI.      On   March    10,    2015,     the

prosecutor rejected defendant's application.                     Although noting

defendant had no prior criminal history and worked for fifteen

years with the Scotch Plains Police Department, the prosecutor

concluded      the    facts     and    circumstances     of     defendant's     case

warranted rejecting his application:

              Pursuant    to   PTI   Guideline   3(i)(4),   a
              defendant may be rejected from PTI for a
              crime that is "a breach of the public trust
              where the admission to a PTI program would
              deprecate the seriousness of defendant's
              crime." In the present matter, defendant, a
              police officer, was Treasurer of a nonprofit
              group that relies largely upon parental
              donations for its revenue — the Scotch
              Plains PAL. The PAL is an organization with
              a goal of uniting the local police and the
              local    community    through    youth   sports
              programs.    Defendant, through his status as
              Treasurer of the PAL, embezzled $18,000 from
              the organization leaving it underfunded for
              a period of four months. The seriousness of



                                          5                                A-5329-14T1
           this   offense   coupled   with   defendant's
           occupation as a law enforcement officer
           whose job it is to uphold the law, far
           outweighs    any   positive    rehabilitative
           factors that may be present in this matter.
           The public interest is best served by this
           offense being prosecuted, and not diverted.

    Defendant       appealed      his    PTI   denial    to   the   Law    Division,

arguing the judge should reject the position that his crime

involved     a    breach   of     the    public     trust     and    overrule     the

prosecutor's decision.          The judge declined, explaining:

           The [c]ourt finds that the State could
           properly   determine  that   the   defendant
           breached the public trust based on his
           breach of his fiduciary duties as the
           Treasurer of the PAL.   The PAL's purpose –
           that is, its whole reason for existence as
           described on its website Home Page – is a
           non-profit organization – a non-profit,
           police youth organization with a mission to
           reduce juvenile delinquency and promote
           positive interaction between law enforcement
           and its community.

After concluding defendant's conduct constituted "certainly a

breach of public trust," and finding the State otherwise based

its decision "upon a consideration of all relevant factors," the

judge denied defendant's motion.               This appeal followed.

                                         II.

    We     first     address      our     standard      of    review.       "Issues

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



                                          6                                 A-5329-14T1
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.

       While we exercise de novo review over the propriety of

considering a certain PTI factor, we afford prosecutors "broad

discretion     to   determine       if    a     defendant          should        be    diverted."

State v. K.S., 220 N.J. 190, 199 (2015) (citation omitted).

This    discretion        arises       out      of        the     prosecutor's           charging

authority.          Id.     at     200.           "Accordingly,             to        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 abuse of . . . discretion.'"

Ibid. (alteration in original) (quoting State v. Wallace, 146

N.J. 576, 582 (1996)).

       We   extend        "enhanced"         deference            to    the       prosecutor's

decision.      State v. Negran, 178 N.J. 73, 82 (2003) (quoting

State v. Baynes, 148 N.J. 434, 443-44 (1997)).                                        The court's

"severely limited" scope of review is designed to address "only

the    'most   egregious         examples       of    injustice        and       unfairness.'"

Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

Although we rarely overturn the rejection of a PTI application,

the prosecutor's discretion is not unlimited.                               State v. Brooks,




                                              7                                           A-5329-14T1
175 N.J. 215, 225 (2002), overruled in part by K.S., supra, 220

N.J. at 199.

       The PTI statute requires prosecutors to consider a non-

exclusive     list     of   seventeen       criteria.       N.J.S.A.    2C:43-12(e).

These criteria "include 'the details of the case, defendant's

motives, age, past criminal record, standing in the community,

and employment performance[.]'"                  State v. Roseman, 221 N.J. 611,

621 (2015) (alteration in original) (quoting State v. Watkins,

193    N.J.   507,    520    (2008)).         In   rendering   the     decision,   the

prosecutor      must       "make    an     individualized      assessment    of    the

defendant" and consider whether the defendant is amenable to

rehabilitation.         Id. at 621-22 (citing Watkins, supra, 193 N.J.

at 520).      The prosecutor may not weigh inappropriate factors or

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

       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 purposes 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 of 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



                                             8                               A-5329-14T1
            error complained of will clearly subvert the
            goals underlying Pretrial Intervention.

            [Roseman, supra, 221 N.J. at 625 (alteration
            in original) (quoting State v. Bender, 80
            N.J. 84, 93 (1979)).]

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

but   nonetheless      has   demonstrated     an   abuse      of   discretion,      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 (internal
            citation omitted) (quoting State v. Dalglish,
            86 N.J. 503, 509 (1981)).]

As    the   Court   explained,     this      middle   ground       preserves     the

exercise    of   the   prosecutor's      discretion,     while      assuring     the

proper application of the PTI standards.              Ibid.

                                     III.

      Applying these principles, we examine defendant's argument

challenging the prosecutor's rejection of his PTI application.

The   prosecutor    relied    on   the    presumptions     set     forth   in    the

Guidelines governing PTI.          See Pressler and Verniero, Current

N.J. Court Rules, Guideline 3(i) on R. 3:28 (2017) (hereinafter




                                         9                                 A-5329-14T1
Guideline 3(i)).        Guideline 3(i) applies a presumption against

PTI   eligibility     for   those    defendants       charged     with   crimes     of

violence, organized crime, breach of the public trust, or with

some of the most serious drug-related offenses.                       A defendant

charged with one of the crimes included in Guideline 3(i) faces

a significant hurdle to PTI admission, which other applicants

need not surmount.

      In    rejecting       defendant,          the      prosecutor      maintained

defendant's     unauthorized        use    of    PAL's    funds    constituted        a

"breach    of   the   public      trust"       because    "defendant,    a    police

officer, was Treasurer" of PAL, "an organization with a goal of

uniting the local police and the local community through youth

sports     programs."       The     prosecutor        further     emphasized       the

criminal conduct occurred despite "defendant's occupation as a

law enforcement officer whose job it is to uphold the law."

      A breach of the public trust occurs when a governmental

agency or officer, vested with the public trust, causes harm to

the public by breaching its trust.               See generally Bender, supra,

80 N.J. 84.     Such a breach occurs when two elements are present:

(1) the defendant serves as a public trustee at the time of the

alleged offense, and (2) the defendant causes direct injury to

the public at large in his or her role as a public trustee.                        Id.

at 96.     Therefore, a individual engaging in such conduct must




                                          10                                 A-5329-14T1
owe some sort of fiduciary duty directly to the public at large

in order to breach the public trust under Guideline 3(i)(4).

      Following our review, we conclude the trial judge erred in

adopting the prosecutor's more expansive application of breach

of the public trust to PAL.           It is unrefuted defendant was a

volunteer for PAL at the time of his alleged offense.                    The

operating funds PAL received were primarily from fees collected

from parents or caregivers whose children participate in its

sponsored sporting events.          As a non-profit organization, PAL

also has the ability to fundraise.           However, in this case, the

record contains no evidence PAL received any funding from any

public entities nor did the State assert any connection between

public money and PAL.       Without such a connection, we discern no

basis for concluding defendant committed "a breach of the public

trust" as contemplated by Guideline 3(i)(4).

      Further, we reject the application of the breach of the

public    trust    guideline   because     of   defendant's   employment.

Defendant did not engage in unlawful conduct in his capacity as

a police officer nor did his role as an officer facilitate the

crime.     The record does not support a conclusion a breach of

the   public    trust   occurred   when   defendant   improperly   borrowed

funds    from   PAL.     Accordingly,     the   mistaken   application    of

Guideline 3(i)(4) to a defendant who was not charged with one of




                                     11                            A-5329-14T1
the included crimes constitutes a gross and patent abuse of the

prosecutor's discretion.          See Roseman, supra, 221 N.J. at 627;

Bender, supra, 80 N.J. at 93.

       The   prosecutor   and    trial   judge   erroneously     applied     the

presumption of PTI ineligibility to defendant's pending charge

of    third-degree    attempted    misapplication       of   funds   from   PAL,

N.J.S.A. 2C:21-15 and 2C:5-1.            The order rejecting defendant's

PTI    appeal   is   reversed,    and    the   matter   is   remanded.       The

prosecutor must consider defendant's PTI application ab initio.

See Roseman, supra, 221 N.J. at 629; Bender, supra, 80 N.J. at

97.

       Reversed and remanded.




                                        12                             A-5329-14T1
