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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3959-18T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MARJORIE D. DALEY,

          Defendant-Respondent.


                   Submitted November 6, 2019 – Decided December 2, 2019

                   Before Judges Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 18-12-
                   1045.

                   Jennifer    Webb-McRae,        Cumberland     County
                   Prosecutor, attorney for appellant (Kim Latonya
                   Barfield, Assistant Prosecutor, of counsel and on the
                   brief).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Michael A. Ortiz, Jr., Assistant Deputy
                   Public Defender, of counsel and on the brief).

PER CURIAM
      The State appeals an order admitting defendant Marjorie D. Daley into the

pretrial intervention (PTI) program over the prosecutor's objection. The State

contends the motion judge erred in the first instance by remanding defendant's

application for the prosecutor's reconsideration. The State further contends the

judge compounded that error by finding the prosecutor's decision rejecting

defendant from PTI constituted a patent and gross abuse of discretion. We agree

with both contentions.     Accordingly, we reverse and remand for further

proceedings on the indictment.

                                       I.

      The facts leading to the prosecutor's denial of defendant's PTI application

are straightforward and set forth in the prosecutor's initial denial letter.

Employed part-time by a private facility, defendant provided in-home care to

N.L. (Nancy),1 a ninety-year-old woman, who lived alone and suffered from

dementia. During a visit, Nancy's son, C.L. (Carl), discovered Nancy no longer

had telephone service and had accumulated unpaid bills.

      Following a review of Nancy's bank statements, Carl determined the funds

in her account had decreased by more than $20,000 in one year. That amount



1
  We use initials and pseudonyms to protect the privacy of the alleged victim
and her son.
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                                       2
included payments of $1,300 for groceries in one month. Carl also discovered

"several transactions made through [Nancy]'s account to defendant personally

and her daughters for about $700."          Carl found "checks written to pay

defendant's Verizon Wireless and Comcast bills." Seventy-five checks were

missing from Nancy's checkbook.

      Those transactions resulted in a Cumberland County indictment, charging

defendant with third-degree theft, N.J.S.A. 2C:20-3(a), over a three-month

period in 2018. The prosecutor rejected defendant's ensuing application into the

PTI program. In a memorandum addressed to the criminal division manager, 2

the prosecutor found five of the seventeen nonexclusive criteria set forth in

N.J.S.A. 2C:43-12(e) were relevant to her decision: the "nature of the offense"

(factor one); the "facts of the case" (factor two); the "needs and interests of the

victim and society" (factor seven); the "crime is of such a nature that the value

of supervisory treatment is outweighed by the public need for prosecu tion"

(factor fourteen); and the "harm done to society by abandoning criminal

prosecution outweighs the benefits to society by channeling an offender into a

supervisory treatment program" (factor seventeen).



2
  The parties have not included the criminal division manager's recommendation
in the record on appeal. See R. 3:28-3(d); N.J.S.A. 2C:43-12(c).
                                                                           A-3959-18T2
                                        3
      The prosecutor detailed her reasons for factors one, two and seventeen.

Regarding factor one, the prosecutor found the nature of the offense was

grounded in "a classic scheme to take advantage of an extremely vulnerable

individual who defendant knew would be easy to exploit. The victim in this

matter was [ninety] years of age. She was in compromised health and in need

of care" from defendant, who provided that care five days per week. As to factor

two, the prosecutor recounted at length the facts of the case, which we

summarized above.

      Turning to factor seventeen, the prosecutor stated, in full:

            The victim in this matter is . . . [ninety] years old
            suffering with [d]ementia. Defendant used her special
            position as a healthcare worker providing services
            within the patient's home to exploit the victim for
            financial gain because she was not under direct
            supervision while at the home. This [is] the type of
            crime where the public need for prosecution and
            deterrence of defendant and others outweighs the value
            of supervisory treatment (diversion) through the PTI
            program. I respectfully submit that defendant should
            never be in a position to exploit someone in this manner
            again.

      Defendant appealed the denial of her PTI application. She argued the

prosecutor failed to give "enough of a basis or consider[] enough of the factors"

to justify her decision. Citing her remorse and lack of criminal record, defendant

contended she should have been placed into the PTI program.              Notably,

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                                        4
however, defendant seemingly minimized her conduct. Defendant shifted at

least some blame onto Nancy's nephew, contending he took some money from

Nancy. Defendant also claimed Carl overstated Nancy's ailment; and the checks

Nancy issued to her were not honored by the bank.

       Recognizing defendant's lack of any criminal history was a statutory

requirement for the PTI program, the motion judge was unpersuaded that the

prosecutor "grossly and patently abused [her] discretion." Addressing defense

counsel, the judge explained:

            I didn't see anything . . . at all indicating why
            [defendant] would be a particularly good candidate,
            other than the fact that she's [fifty-four years old] and
            would lose employment.

                  I didn't see anything else [regarding] . . . what
            makes her stand out as somebody who . . . deserves
            admission into the PTI program over the objection of
            the State.

                  ....

                  I'm looking for special circumstances that you
            can articulate, as to why the State . . . abus[ed] [its]
            power here and something that will allow me to
            override that abuse of discretion, if you believe it exists.

                  ....

                  But I want you at least to provide the [p]rosecutor
            with some additional documentation so the [p]rosecutor
            can consider . . . on an individual basis why she believes

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                                         5
            your client should or should not be admitted into the
            program.

                  ....

                  In other words, if I had to rule at this point in
            time, I'd probably affirm the [p]rosecutor's decision
            because I don't see enough before me to establish that
            [she] grossly and patently abused [her] discretion. It's
            not here.

Although unpersuaded by defendant's arguments, the judge nevertheless

remanded the matter to the prosecutor for further consideration. 3

      Following remand, defendant submitted numerous letters supporting her

admission into the PTI program from friends and clergy. Defendant provided

her own letter reiterating her remorse. Defendant also urged the prosecutor to

reconsider defendant's admission because her full-time State job of twenty-

three-years hung in the balance pending her acceptance into the PTI program.

Apparently, defendant no longer worked part-time for the facility that provided

care to Nancy.4


3
   There is no indication in the record that the judge issued an order
accompanying his decision.
4
  On appeal, defendant claims a public official in the same county was admitted
into PTI, even though the official had been accused of embezzling more than
$22,000. It is not clear from the record whether that information was presented
to the prosecutor. Unlike defendant here, however, that official apparently
                                                                    (continued)
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                                       6
      Consideration of defendant's supplemental documents did not alter the

prosecutor's decision to again reject defendant's application, "for the reasons set

forth in [her] initial rejection." The prosecutor elaborated:

            While the letters submitted on . . . defendant's behalf
            point toward her amenability to rehabilitation, I
            continue to be of the opinion that the public need for
            prosecution and the harm done by abandoning
            prosecution outweigh her amenability to rehabilitation.
            As stated previously, . . . defendant took advantage of
            a vulnerable individual. The public needs to be warned
            against permitting . . . defendant to be in a position to
            do so again. Pursuing a criminal conviction will do just
            that.

      After hearing argument, the judge issued an oral decision, finding the

prosecutor "patently and grossly abused her discretion[,]" and admitted

defendant into the PTI program over the prosecutor's objection. The judge was

persuaded by defendant's long-term employment, finding the present matter was

"a one-time blemish on [defendant]'s life."        Because a conviction would

"adversely [a]ffect her life" the judge concluded rejection from the PTI program

would significantly affect her employability.

      Without    specifically   citing   the   statutory   criteria   set   forth    in

N.J.S.A. 2C:43-12(e), the judge determined certain factors were absent here:


forfeited her present and future public employment. Defendant's motivation in
seeking acceptance into PTI seems directly related to keeping her State job.
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                                         7
the offense was not "part of a continuing pattern of anti-social behavior" (factor

eight); defendant lacked a criminal record (factor nine); the offense was not

violent or assaultive in nature (factor ten); defendant had no "history of physical

violence toward others" (factor twelve); defendant was not involved in

organized crime (factor thirteen); and no one else was charged, so defendant's

"participation in pretrial intervention [would not] adversely affect the

prosecution of codefendants" (factor sixteen).

      Following the hearing, the judge entered the order under review. Among

other things, the judge required defendant to pay restitution to the victim in

excess of $11,900. Because the theft did not occur "during the course and scope"

of defendant's public employment, and that employment was necessary for her

to pay restitution, the judge did not require defendant to forfeit her State job.

This appeal followed.

                                         II.

      We begin our analysis by recognizing the scope of judicial review of the

prosecutor's rejection of PTI is "severely limited." State v. Negran, 178 N.J. 73,

82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially

prosecutorial function."      State v. Wallace, 146 N.J. 576, 582 (1996).

"Prosecutorial discretion in this context is critical for two reasons. First, because

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                                         8
it is the fundamental responsibility of the prosecutor to decide whom to

prosecute, and second, because it is a primary purpose of PTI to augment, not

diminish, a prosecutor's options." State v. Nwobu, 139 N.J. 236, 246 (1995)

(citation omitted). Accordingly, courts give prosecutors "broad discretion" in

determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190,

199 (2015).

      "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.'" State v. Nicholson, 451 N.J. Super. 534, 553 (App.

Div. 2017) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). "A patent and

gross abuse of discretion is defined as a decision that '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 (quoting Wallace, 146

N.J. at 582-83).

      When a defendant has not met that high standard, but has demonstrated an

abuse of discretion, a remand is appropriate. See Wallace, 146 N.J. at 583. An

abuse of discretion is manifested 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, or (c) amounted to a

                                                                          A-3959-18T2
                                        9
clear error in judgment . . . .'" State v. Lee, 437 N.J. Super. 555, 563 (2014)

(quoting State v. Bender, 80 N.J. 84, 93 (1979)).

      Accordingly, if 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." K.S., 220 N.J. at 200 (quoting State v.

Dalglish, 86 N.J. 503, 509 (1981)). Thus, if a prosecutor does not consider

factors that should be considered, or considers factors that should not be

considered, a remand is appropriate. Ibid. "A remand to the prosecutor affords

an opportunity to apply the standards set forth by the court 'without supplanting

the prosecutor's primacy in determining whether [PTI] is appropriate in

individual cases.'" Ibid. (quoting Dalglish, 86 N.J. at 514). 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.

      "We must apply the same standard as the trial court." State v. Waters, 439

N.J. Super. 215, 226 (App. Div. 2015). We review the "judge's reversal of the

prosecutor's decision de novo." Ibid.




                                                                          A-3959-18T2
                                        10
      Guided by those standards, we conclude the judge erred in ordering

defendant's admission into the PTI Program over the prosecutor's objection. We

agree with the State that the judge did not find the prosecutor's initial rejection

of defendant's PTI application to be an abuse of her discretion. Nonetheless, the

judge improperly remanded the matter, permitting defendant to submit

"something that w[ould] allow [the judge] to override that abuse of discretion,

if [defendant] believe[d] it exist[ed]." (Emphasis added).

      Notwithstanding defendant's second chance to convince the prosecutor to

admit defendant into PTI, she failed to demonstrate the prosecutor's decision

was not based on a thorough consideration of all appropriate factors and

constituted a gross and patent abuse of discretion. The prosecutor not only gave

significant emphasis to the circumstances of the offense, including defendant's

deliberate theft from a vulnerable victim who placed much trust in defendant's

honesty, but also considered defendant's individual characteristics.           The

prosecutor   considered    mitigating   factors   personal   to   defendant    and

acknowledged "the letters submitted on . . . defendant's behalf point[ed] toward

her amenability to rehabilitation . . . ." Against those mitigating factors, the

prosecutor considered defendant's exploitation of a vulnerable victim through

the "special position" of trust attendant to her home healthcare position. The

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                                        11
prosecutor determined that such a serious crime warranted a meaningful non-

diversional outcome.

      The motion judge erred by interjecting himself into the process of

weighing applicable factors pertinent to the PTI application submitted by

defendant. The judge predicated his decision upon his own assessment of the

PTI factors, rather than determining whether the prosecutor failed to consider

all relevant factors, considered inappropriate factors or clearly erred in

judgment. He compounded his error by then opining that defendant was not

"part of any ongoing or continuing pattern of criminal or antisocial behavior,"

even though the indictment alleged the theft occurred over the course of three

months. While reasonable minds could differ in analyzing and balancing the

applicable factors in this case, judicial disagreement with a prosecutor's reasons

for rejection does not equate to prosecutorial abuse of discretion so as to merit

judicial override. State v. DeMarco, 107 N.J. 562, 566-67 (1987). In this

instance, the motion judge improperly substituted his own discretion for that of

the prosecutor.

      We are convinced from our review of the record that the prosecutor

considered, weighed, and balanced all of the requisite factors, including those

personal to defendant, and the facts and circumstances of the offense. Her

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                                       12
rejection of defendant's PTI application did not constitute a patent and gross

abuse of discretion. We therefore vacate the order entering defendant into the

PTI program, and remand for further proceedings on the indictment.

      Reversed and remanded. We do not retain jurisdiction.




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