                                NOT FOR PUBLICATION WITHOUT THE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-1147-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RASHANAH L. CAMPER,

     Defendant-Appellant.
____________________________

                    Submitted October 28, 2019 – Decided November 12, 2019

                    Before Judges Sabatino and Sumners.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 17-11-1843.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alison S. Perrone, First Assistant Deputy
                    Public Defender, of counsel and on the brief).

                    Bradley D. Billhimer, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel; Cheryl L. Hammel,
                    Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant Rashanah L. Camper appeals the trial court's April 11, 2018

denial of her application for pretrial intervention ("PTI"), which had been

opposed by the Ocean County prosecutor.

      Following a motor vehicle stop in Ocean County, defendant was found in

possession of numerous controlled dangerous substances. She was thereafte r

charged in Ocean County Indictment No. 17-11-1843 with eight counts of

various drug offenses. While these charges were pending, she was arrested and

charged in Atlantic County and Burlington County on other unrelated charges.

      Defendant applied for PTI in Ocean County.         The program director

rejected her application.   Defendant sought the trial court's review of the

rejection. The prosecutor's office opposed her request. The court upheld the

PTI denial. Defendant thereafter entered into a conditional guilty plea to count

one of the indictment charging her with third-degree simple possession of CDS.

She was sentenced to probation and preserved her right to bring the present

appeal.

      During oral argument on the PTI motion, the prosecutor highlighted to the

court the pending charges against defendant in Atlantic and Burlington Counties

as negative factors weighing against her admission to PTI in the Ocean County

case. The prosecutor acknowledged that, based on the information she had, the


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                                       2
Burlington County charges were "likely to be dismissed."             However, the

prosecutor stressed that the Atlantic County charges, which entailed two cases,

were "likely to go forward," and that they included a serious charge of second-

degree aggravated assault.

      As set forth in N.J.S.A. 2C:43-12 to -22, and as implemented in our

criminal courts under Rule 3:28, admission into PTI requires a positive

recommendation from the program director and also the consent of the

prosecutor.   State v. Nwobu, 139 N.J. 236, 246 (1995).           The prosecutor's

assessment is to be guided by seventeen factors enumerated in the PTI statute.

N.J.S.A. 2C:43-12(e)(1)-(17). For suitable defendants who are selected for

admission, "PTI is a diversionary program specifically designed to avoid a trial

and the stigma accompanying a verdict of guilty to any criminal offense." State

v. Bell, 217 N.J. 336, 347 (2014).

      Here, in the trial court's oral decision addressing the PTI factors, the court

found pertinent the pending charges against defendant in Atlantic and

Burlington Counties. The court noted those charges arose while defendant was

on monitoring in the present case. The court's reference to the pending charges

was not merely incidental. Taking those new arrests into account, and coupling




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                                         3
them with defendant's prior history, the court concluded the State's denial of PTI

was justified.

      As a general matter, courts allow prosecutors wide latitude "in deciding

whom to divert into the PTI program and whom to prosecute through a

traditional trial." State v. Negran, 178 N.J. 73, 82 (2003). The scope of judicial

review of a prosecutor's objection to a defendant's admission into PTI is severely

limited. Ibid.; see also Nwobu, 139 N.J. at 246; State v. Hermann, 80 N.J. 122,

128 (1979). A defendant has a "clear and convincing" burden to show a "patent

and gross abuse" of a prosecutor's discretion in denying PTI. State v. K.S., 220

N.J. 190, 199-200 (2015).

      Despite these general principles of deference, an important caveat from

the Supreme Court's opinion in K.S. applies to the present appeal. The Court

instructed that, in the absence of "undisputed facts of record or facts found at a

hearing," other charges against a PTI applicant that have been dismissed "may

not be considered for any purpose." Id. at 199. The Court reasoned that the

policy of "deterrence is directed at persons who have committed wrongful

acts[,]" and the "sole fact" of an unproven and dismissed charge should not enter

into the PTI calculus. Ibid.




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                                        4
      The logic of K.S. extends to the present case.      Although defendant's

charges in Burlington and Atlantic County had not been dismissed as of the time

she applied for PTI in Ocean County, they also were not yet proven. In fact, as

the prosecutor noted, it was expected the Burlington charges were going to be

dismissed. Defendant is entitled to the presumption of innocence concerning

those unrelated charges, absent independent proof the offenses were committed.

There was no such independent proof tendered to the trial court here.

      We accordingly vacate the trial court's denial of defendant's PTI appeal,

and remand the matter for reconsideration. At that proceeding, the court should

ignore the charges in Atlantic and Burlington Counties unless they have resulted

in a guilty plea or conviction.

      We intimate no views on the outcome of the case, and whether the other

relevant factors nevertheless support the PTI denial. Defendant may withdraw

her conditional guilty plea in this Ocean County case if, on remand, her PTI

application is granted.

      Vacated and remanded. We do not retain jurisdiction.




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