                                      RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
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     internet, this opinion is binding only on the parties in the case and its use i n other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5124-18T1

STATE OF NEW JERSEY,

         Plaintiff-Appellant,

v.

AISLING H. SMITH-RENSHAW,

     Defendant-Respondent.
_______________________________

                   Submitted January 7, 2020 - Decided June 8, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Gloucester County, Complaint No. S-
                   2019-0064-0818.

                   Christine A. Hoffman, Acting Gloucester County
                   Prosecutor, attorney for appellant (Douglas Benjamin
                   Pagenkopf, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, on the briefs).

                   Testa Heck Testa & White, PA, attorneys for
                   respondent (Michael L. Testa, Jr. and Anthony Mario
                   Imbesi, on the brief).

PER CURIAM
      The State of New Jersey appeals from a July 22, 2019 order admitting

defendant Aisling H. Smith-Renshaw into the Pre-Trial Intervention Program

(PTI) over the prosecutor's objection. The State contends the trial court erred

in finding the prosecutor failed to consider information defendant did not

submit with her application to PTI and that the circumstances do not clearly

and convincingly establish its refusal to permit defendant's diversion was a

patent and gross abuse of the prosecutor's discretion. Having reviewed the

record, we agree and conclude the trial judge improperly substituted her

judgment for the prosecutor's on whether defendant's offenses constituted a

pattern of anti-social behavior, requiring reversal of the order admitting

defendant into PTI.

      The State acknowledges, however, that the prosecutor was without

information to assess statutory criteria five and six, N.J.S.A. 2C:43-12(e)(5)

and (6), because defendant only submitted materials supporting those factors

to the trial court after the prosecutor had already considered and denied

defendant's application to PTI. Because those factors are critical to assessing

an applicant's amenability to correction and responsiveness to rehabilitation,

N.J.S.A. 2C:43-12(b)(1), and only because the prosecutor has expressed on

this appeal a willingness to consider the materials defendant belatedly


                                                                            A-5124-18T1
                                        2
submitted in reassessing defendant's application to PTI, we deem a remand to

the prosecutor for that purpose appropriate.

      Defendant, a school nurse, allegedly used the name and licensing

information of a nurse practitioner who treated defendant's family to obtain

prescription medication on eight different occasions over the course of more

than sixteen months. Defendant also allegedly forged the victim's name to

letters defendant wrote to school officials excusing absences and seeking

reduced fees and accommodations for her children. Some of those letters,

which were allegedly composed on defendant's work computer, were sent to

officials in the same district in which she was employed. Defendant was

charged in a thirty-four count complaint - summons with four counts of fourth-

degree forgery, N.J.S.A. 2C:21(a)(2); eight counts of third-degree forgery,

N.J.S.A. 2C:21-1(a)(3); fourth-degree falsifying records, N.J.S.A. 2C:214(a);

twelve counts of fourth-degree identity crime — impersonating another in oral

or written application for services, N.J.S.A. 2C:21-l7(a)(3); fourth-degree

falsifying a record relating to medical care, N.J.S.A. 2C:21-4.1; and eight

counts of third-degree obtaining possession of a controlled dangerous

substance by fraud, N.J.S.A. 2C:35-l3.




                                                                         A-5124-18T1
                                         3
      Defendant's application for PTI was rejected by the criminal division

manager relying on the police investigation and defendant's interview by a

probation officer. In a lengthy letter in which she acknowledged that

defendant had no prior criminal record, the criminal division manager

concluded the charged offenses constituted a continuing pattern of anti-social

behavior, N.J.S.A. 2C:43-12(e)(8), and that defendant was charged with a

crime representing a breach of public trust that made admission into the

program inappropriate, Rule 3:28-4(b)(1).

      The prosecutor agreed with the decision of criminal case management.

Addressing each of the seventeen statutory factors, N.J.S.A. 2C:43-12(e), the

prosecutor placed the most weight on the State's interest in prosecuting those

who falsify medical records for their own gain; that "defendant's criminal acts

occurred over several years and were varied between false prescriptions and

forged letters," thereby constituting "the very definition of 'continuing pattern

of anti-social behavior;'" and that public prosecution of defendant, a school

nurse, was necessary in order to avoid deprecating the seriousness of her

crimes committed against the medical community. Summing up the reasons

for rejecting defendant's application, the prosecutor wrote:

            Society does not benefit by allowing those who
            commit fraudulent acts against the medical community

                                                                          A-5124-18T1
                                        4
            for personal gain into PTI. The State rejects this
            application, in particular, based on [the] continuous
            nature of [defendant's] actions. The State also rejects
            this applicant, in particular, due to the specific nature
            of these crimes and their impact on [the victim] and
            her reputation. Forging prescriptions for one's
            personal use may only impact the person taking the
            medication. Forging documents to allow
            accommodations at athletic events and in college
            housing undermines the integrity of those institutions
            and makes light of the needs of those who truly need
            accommodations. Finally, the State rejects this
            applicant, in particular, due to her position as a nurse
            at that time of these offenses. That she was a school
            nurse is especially repugnant as her actions could have
            jeopardized the safety of the students in her care.
            Even if she were not a school nurse, the fact that a
            licensed nurse forged documents to accommodate, and
            seemingly, give her own children some sort of
            perceived advantage is offensive. This defendant is
            not suited for PTI.

      Defendant appealed, and the Law Division judge ordered defendant

admitted to the program over the prosecutor's objection. In a written opinion,

the judge found the State failed to conduct "a fact-sensitive analysis of the

personal problems and character traits of [d]efendant." Specifically, the judge

found defendant, a divorced single mother of three, was the victim's patient for

several years, being treated for anxiety, depression and fibromyalgia.

Defendant's daughters were also patients of the victim. The court noted that

defendant "asserts that she was overwhelmed by the stress of her divorce, her


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                                        5
personal mental health condition" and the similar conditions of her children,

including two who suffered from obsessive compulsive disorder. The court

also noted the prescriptions were for alprazolam, an anti-anxiety drug, for

amounts within recommended guidelines and that defendant's counsel

proffered that the victim issued prescriptions to defendant for the same drug

"in the exact same dosages" subsequent to the fraudulent prescriptions

defendant prepared. 1

      The court concluded the State failed to address whether defendant's

personal problems and character traits demonstrated an amenability to

rehabilitation. Specifically, the court found "[t]he fraudulent prescriptions and

the letters about her daughters are rooted in [d]efendant's and her daughter 's

personal problems and mental health issues," that defendant had "expressed

remorse and is open to rehabilitation," that the "State gave no consideration to

the character letters submitted by the defense, to [d]efendant's standing in the

community and to her employment performance," and that the State ascribed

no weight "to the interest of the victim because they never called [the victim]

for her input."


1
  The State points out that the victim did so without knowledge of the fraud
and represents the victim brought the matter to the attention of police and
wished to pursue prosecution.
                                                                          A-5124-18T1
                                        6
      The court further found there was "no indication that the crimes charged

are in anyway related to [defendant's] employment as a school nurse," and that

the State's consideration of that factor was inappropriate and "tantamount to a

per se rejection." The court noted "[t]here is no per se disqualification of

school nurses from PTI, merely because their status as school nurses."

      Although conceding that "[t]he State properly characterized the

defendant's crime as falling within the ambit of New Jersey Guideline 3(i)(2) [2]

which generally may result in a denial," the court found "the State's rejection

of defendant's application was based wholly upon the nature of the offense.

Individualistic factors played no role in the decision. No analysis was done."

      The court concluded that "[d]efendant demonstrate[d] extraordinary

circumstances sufficient to overcome the presumption against PTI admission ,

and that the State's denial was based on unsupported assertions with respect to

the nature of the offense and other irrelevant and inappropriate factors." The

court found "based on the totality of the circumstances and for good cause

shown," that the State's failure to consider all relevant factors and its



2
  The Guidelines were deleted along with Rule 3:28 effective July 1, 2018.
Pressler & Verniero, Current N.J. Court Rules, R. 3:28 (2020). Former
Guideline 3(i)(2) reflected the presumptions against admission contained in
N.J.S.A. 2C:43-12(b)(2). See id. at cmt. on R. 3:28.
                                                                            A-5124-18T1
                                         7
consideration of an inappropriate factor "amounted to a clear error in

judgment" rising to "a patent and gross abuse of discretion subverting the goals

of the Pre-Trial Intervention Program."

      The State appeals, contending the trial court erred in finding the

prosecutor's rejection of defendant's PTI application constituted a patent and

gross abuse of discretion. It argues defendant's application did not include the

many letters and detailed information about defendant's and her daughter's

circumstances that the trial court upbraided the prosecutor for failing to take

into account. The State maintains the prosecutor's view of defendant's actions

as a continuing pattern of anti-social behavior was a valid consideration, that

his denial of the application did not constitute a per se rejection or otherwise

constitute a patent and gross abuse of discretion. We agree.

      Having read the Law Division judge's opinion, it is obvious that had the

judge been the prosecutor, defendant would have been admitted to PTI. The

cases, however, are unanimous in holding a reviewing court is not to evaluate

the case "as if it stood in the shoes of the prosecutor." State v. Wallace, 146

N.J. 576, 589 (1996). As the Supreme Court has repeatedly reminded, "PTI is

essentially an extension of the charging decision, therefore the decision to

grant or deny PTI is a 'quintessentially prosecutorial function.'" State v.


                                                                           A-5124-18T1
                                          8
Roseman, 221 N.J. 611, 624 (2015) (quoting Wallace, 146 N.J. at 582).

"[B]ecause it is the fundamental responsibility of the prosecutor to decide

whom to prosecute," State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993),

"the prosecutor has great discretion in selecting whom to prosecute and whom

to divert to an alternative program, such as PTI." Wallace, 146 N.J. at 582.

      We are to afford the prosecutor's decision on diversion to PTI an

"enhanced" or "extra" level of deference, State v. Baynes, 148 N.J. 434, 443

(1997), in accord with the Court's "expectation that 'a prosecutor's decision to

reject a PTI applicant will rarely be overturned,'" ibid. (quoting Wallace, 146

N.J. at 585) (internal quotation marks omitted)). Accordingly, the scope of

judicial review "is severely limited" and "serves to check only the 'most

egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73,

82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977).

      "A defendant attempting to overcome a prosecutorial veto must 'clearly

and convincingly establish that the prosecutor's refusal to sanction ad mission

into a PTI program was based on a patent and gross abuse of his discretion'

before a court can suspend criminal proceedings under Rule 3:28 without

prosecutorial consent." Negran, 178 N.J. at 82 (quoting State v. Nwobu, 139




                                                                          A-5124-18T1
                                        9
N.J. 236, 246 (1995)) (internal quotation marks omitted). The Court has

instructed that

            [o]rdinarily, 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).]

      Applying those standards to this record makes clear the judge was

without authority to suspend criminal proceedings against defendant and order

her admitted to PTI over the prosecutor's objection. Defendant does not

dispute that she did not submit with her PTI application the information about

her and her daughters' mental health conditions or the many letters on which

the trial court relied in its findings. The judge was thus wrong to override the

prosecutor's decision based on his failure to consider relevant information

defendant never supplied him. See id. at 94.

      We also reject the court's finding that the prosecutor inappropriately

considered defendant's position as a school nurse, and that his decision to deny

her entry into PTI "was tantamount to a per se rejection." Although the

                                                                         A-5124-18T1
                                       10
prosecutor certainly considered defendant's employment as a school nurse, we

do not believe his letter could be fairly considered a per se rejection of her

application based on either her licensure or employment as a nurse. The

prosecutor did not rely on the presumption contained in Rule 3:28-1(e) against

admission for public employees charged with a crime touching employment

but instead considered defendant's status as a factor in the nature of the offense

and whether it was "a breach of the public trust where admission to a PTI

program would deprecate the seriousness of defendant's crime" under Rule

3:28-4(b)(1)(iv).

      The prosecutor asserted defendant allegedly forged letters to school

officials in her own district to excuse absences of one of her children using a

work computer to do so. Obviously cognizant that whether defendant's alleged

acts could be considered a breach of the public trust might be a close question

here, see Bender, 80 N.J. at 96; State v. Denman, 449 N.J. Super. 369, 379

(App. Div. 2017), the prosecutor emphasized the effect of defendant's actions

on the victim and her professional reputation. He noted defendant forged

documents to allow accommodations and perceived advantages for her

children at school, which undermines the integrity of the institutions, and that




                                                                          A-5124-18T1
                                       11
her actions in forging prescriptions "could have jeopardized the safety of

students in her care."

      Having considered the prosecutor's explanation for his consideration of

defendant's position as a school nurse, we cannot find that factor to have been

inappropriate in weighing the nature of the offenses, and certainly cannot find

his thorough explanation of its relevance amounted to a per se rejection of her

application. The prosecutor's finding that defendant's conduct involved a

continuing pattern of anti-social behavior was likewise a valid consideration

entitled to deference. See Nwobu, 139 N.J. at 254.

      Having reviewed the record, we cannot say the prosecutor's decision to

weigh against defendant the nature of the offenses, the facts of the case, the

needs of society, that the conduct constituted a continuing pattern of anti -

social behavior, and that the harm done to society by diversion would

outweigh the benefits constituted a clear error of judgment on this record.

Instead, the court erred by interjecting itself into the process of weighing

applicable factors pertinent to the PTI application. It predicated its decision on

its own assessment of the factors, rather than confining itself to whether the

prosecutor considered all relevant factors, considered inappropriate factors or




                                                                          A-5124-18T1
                                       12
made a clear error in judgment. Bender, 80 N.J. at 73. We accordingly

reverse the order admitting defendant into PTI.

      Although we find no patent and gross abuse of the prosecutor's

discretion, the State acknowledges that the prosecutor was without information

to assess factors five, "(t)he 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," and six, "the

likelihood that the applicant's crime is related to a condition or situation that

would be conducive to change through [her] participation in supervisory

treatment." N.J.S.A. 2C:43-12(e)(5) and (6).

      Because both factors are critical to judging a defendant's amenability to

correction and responsiveness to rehabilitation, N.J.S.A. 2C:43-12(b)(1), and

because the prosecutor has expressed a willingness to reassess defendant's

application in light of the information she belatedly provided, we deem a

remand to him to reconsider defendant's application appropriate. See State v.

Dalglish, 86 N.J. 503, 509-10 (1981). Given the passage of time, the review

should be ab initio and defendant may bring any pertinent information bearing


                                                                           A-5124-18T1
                                        13
on her PTI application to the attention of the prosecutor. See State v. Coursey,

445 N.J. Super. 506, 512-13 (App. Div. 2016).

      The order admitting defendant into PTI is reversed, the prosecutor's

decision rejecting defendant from PTI is vacated and the matter is remanded to

the prosecutor for reconsideration in accordance with this opinion. We do not

retain jurisdiction.




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                                      14
