                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0893-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RUSSELL LUKASIAK,

     Defendant-Appellant.
____________________________

                    Argued September 23, 2019 – Decided December 4, 2019

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 18-01-
                    0074.

                    Keith G. Oliver argued the cause for appellant (Proetta,
                    Oliver & Fay, attorneys; Keith G. Oliver on the brief).

                    Monica Lucinda do Outeiro, Assistant Prosecutor,
                    argued the cause for respondent (Christopher J.
                    Gramiccioni, Monmouth County Prosecutor, attorney;
                    Monica Lucinda do Outeiro, of counsel and on the
                    brief).

PER CURIAM
      Defendant Russell Lukasiak appeals from the trial court's denial of his

request from pretrial intervention (PTI). On appeal, he argues:

            POINT I

            THE TRIAL COURT ERRED BY DENYING
            [DEFENDANT] ADMISSION TO [PTI] BECAUSE
            HE HAS SHOWN THE PROSECUTOR ABUSED
            THEIR   DISCRETION  IN  DENYING    HIS
            ADMISSION TO [PTI].

            POINT II

            THE TRIAL COURT ERRED BY NOT REMANDING
            THE CASE TO THE [PROSECUTOR] FOR
            RECONSIDERATION.

            POINT III

            THE   TRIAL  COURT      ERRED BY   NOT
            CONSIDERING ALL THE FACTORS SET FORTH
            IN N.J.S.A. 2C:43-12(e) WHEN DECIDING
            WHETHER TO ADMIT [DEFENDANT] TO [PTI].

                A.   THE TRIAL COURT ERRED BY NOT
            CONSIDERING FACTOR ONE, THE NATURE OF
            THE OFFENSE, AND FACTOR TWO, THE FACTS
            OF THE CAS[E].

                B.  THE TRIAL COURT ERRED BY NOT
            CONSIDERING    FACTOR        THREE,  THE
            MOTIVATION AND AGE OF . . . DEFENDANT.

                 C.  THE TRIAL COURT ERRED BY
            FAILING TO CONSIDER FACTOR FOUR, THE
            DESIRE OF THE COMPLAINANT OR VICTIM TO
            FOREGO PROSECUTION.

                                                                     A-0893-18T3
                                       2
    D.  THE TRIAL COURT ERRED BY NOT
CONSIDERING FACTOR FIVE, THE 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   FACTOR    SIX,  THE
LIKELIHOOD THAT THE APPLICANT'S CRIME IS
RELATED TO A CONDITION OR SITUATION
THAT WOULD BE CONDUCIVE TO CHANGE
THROUGH      HIS    PARTICIPATION     IN
SUPERVISORY TREATMENT.

     E.  THE TRIAL COURT ERRED BY
FAILING TO CONSIDER FACTOR SEVEN THE
NEEDS AND INTERESTS OF THE VICTIM AND
SOCIETY, FACTOR EIGHT, THE EXTENT TO
WHICH THE APPLICANT'S CRIME CONSTITUTES
PART OF A CONTINUING PATTERN OF ANTI-
SOCIAL BEHAVIOR, AND FACTOR NINE, THE
APPLICANT'S RECORD OF CRIMINAL AND
PENAL VIOLATIONS AND THE EXTENT TO
WHICH HE MAY PRESENT A SUBSTANTIAL
DANGER TO OTHERS.

     F.  THE TRIAL COURT ERRED BY
FAILING TO CONSIDER FACTOR TEN, WHETHER
OR NOT THE CRIME IS OF AN ASSAULTIVE OR
VIOLENT    NATURE,   WHETHER    IN  THE
CRIMINAL ACT ITSELF OR IN THE POSSIBLE
INJURIOUS    CONSEQUENCES    OF    SUCH
BEHAVIOR.


                                           A-0893-18T3
                   3
     G.  THE TRIAL COURT ERRED BY
FAILING TO CONSIDER FACTOR ELEVEN,
CONSIDERATION OF WHETHER OR NOT
PROSECUTION WOULD EXACERBATE THE
SOCIAL PROBLEM THAT LED TO THE
APPLICANT'S   CRIMINAL  ACT,    FACTOR
TWELVE, THE HISTORY OF THE USE OF
PHYSICAL VIOLENCE TOWARD OTHERS, AND
FACTOR THIRTEEN, ANY INVOLVEMENT OF
THE APPLICANT WITH ORGANIZED CRIME.

     H.  THE TRIAL COURT ERRED BY
FAILING TO CONSIDER FACTOR FOURTEEN,
WHETHER OR NOT THE CRIME IS OF SUCH A
NATURE THAT THE VALUE OF SUPERVISORY
TREATMENT WOULD BE OUTWEIGHED BY THE
PUBLIC NEED FOR PROSECUTION, FACTOR
FIFTEEN, WHETHER OR NOT THE APPLICANT'S
INVOLVEMENT WITH OTHER PEOPLE IN THE
CRIME CHARGED OR IN OTHER CRIME IS SUCH
THAT THE INTEREST OF THE STATE WOULD BE
BEST SERVED BY PROCESSING HIS CASE
THROUGH TRADITIONAL CRIMINAL JUSTICE
SYSTEM PROCEDURES, AND FACTOR SIXTEEN,
WHETHER    OR   NOT    THE   APPLICANT'S
PARTICIPATION IN PRETRIAL INTERVENTION
WILL ADVERSELY AFFECT THE PROSECUTION
OF CODEFENDANTS.

    I.  THE TRIAL COURT ERRED BY NOT
CONSIDERING FACTOR SEVENTEEN, WHETHER
OR NOT THE HARM DONE TO SOCIETY BY
ABANDONING     CRIMINAL   PROSECUTION
WOULD OUTWEIGH THE BENEFITS TO SOCIETY
FROM CHANNELING AN OFFENDER INTO A
SUPERVISORY TREATMENT PROGRAM.



                                           A-0893-18T3
                   4
Because defendant failed to show the prosecutor's rejection of his PTI

application represented a patent and gross abuse of discretion, or a remand was

required because of an abuse of discretion, we affirm.

        Defendant was indicted for third-degree criminal restraint, N.J.S.A.

2C:13-2(a) (count one), first-degree aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(1) (count two) and third-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a)(1) (count three). The victim, O.P., was a ten-year-old relative of

defendant's wife, who defendant assaulted in his home when she was under his

care.1 Pursuant to a plea agreement, defendant pleaded guilty to third-degree

criminal restraint; the other two charges were dismissed.         Defendant was

sentenced to a probationary term which included compliance with Megan's Law.

See N.J.S.A. 2C:7-1 to -23.

        Defendant applied for PTI after he entered the guilty plea. 2 Although a

probation officer who interviewed defendant, designated as a "PTI investigator"



1
    We use the victim's initials to protect her privacy. See N.J.S.A. 2A:82-46(a).
2
  We note the application was made outside the time constraints of Rule 3:28(h)
that, notwithstanding the broader parameters set forth in N.J.S.A. 2C:43 -12(e),
requires the application to be made "no later than twenty-eight days after
indictment." The record is insufficient for us to determine if the prosecutor
"complete[d] a review of the application and inform[ed] the court and defendant
                                                                    (continued)
                                                                          A-0893-18T3
                                         5
by the trial court, recommended that defendant be "cautiously accepted," forty-

seven days after the date of the PTI investigator's report, an assistant prosecutor

authored a memorandum to the Monmouth County Prosecutor stating "the St ate

is rejecting [defendant's] application into the PTI program." 3

      In the rejection memorandum, the prosecutor cited to five specific

statutory criteria: (1) the nature of the offense; (2) the facts of the case; (3) the

motivation and age of the defendant; (4) the desire of the complainant or victim

to forego prosecution; and (10) whether or not the crime was of an assaultive

nature or violent nature, whether in the criminal act itself or in the possible

injurious consequences of such behavior.4 N.J.S.A. 2C:43-12(e)(1), (2), (3), (4),

and (10). In considering the first and second criteria, the prosecutor focused on

defendant's charge and guilty plea to third-degree criminal restraint, "a violent




within fourteen days of the receipt of the criminal division manager's
recommendation" in compliance with the same Rule. R. 3:28(h).
3
  We similarly point out that the record is barren of the prosecutor's approval of
the position taken by the assistant prosecutor or any authorization for the
assistant prosecutor to copy the memorandum to the court and defendant, as she
did, ostensibly rejecting defendant's PTI application. See N.J.S.A. 2C:43-12(c),
(e); R. 3:28(h) (providing review and recommendation is to be made by the
prosecutor).
4
  As confirmed by the State at oral argument, the rejection memorandum
mistakenly designated factor ten as factor nine.
                                                                             A-0893-18T3
                                         6
offense in which the [ten]-year-old victim was exposed to the risk of serious

bodily injury by . . . defendant, a trusted family member, who was supervising

the child at the time." As to the third criterion, although considering defendant's

advanced age, the "substantial number of character reference letters" submitted

in support of his application, as well as his "strong desire to enter into the PTI

program," the prosecutor concluded,

            defendant maintains that the allegations against him are
            false, and he said [to the PTI investigator] that he
            "would never do such a thing." Since . . . defendant
            refuses to accept any wrongdoing on his part, it does
            not appear that he is amenable to correcting his
            behavior, thereby lacking motivation to successfully
            complete the [PTI] program.

O.P. opposed defendant's PTI admission, to which, in considering the fourth

criterion, the prosecutor gave "great weight under the circumstances." The

resultant injurious consequences of defendant's behavior, in view of the

assaultive or violent nature of the crime—the tenth statutory criterion—included

the emotional injuries to O.P., who: "reported experiencing suicidal thoughts,

depression, [post-traumatic stress disorder] and experienced a mental

breakdown after testifying in front of the Grand Jury"; was "so fearful of . . .

defendant that she is now staying with a friend instead of her family because of




                                                                           A-0893-18T3
                                        7
her fear that . . . defendant knows where she lives"; and "enrolled in weekly

counseling."

      The memorandum continued:

            Having considered the totality of the PTI investigator's
            report, including factors that weigh in favor of . . .
            defendant's admission into PTI (i.e., his lack of criminal
            history, his desire to enter the program, the large
            amount of reference letters) given the serious nature of
            the offense, his denial of wrongdoing and the victim's
            objection, the State is rejecting his application into the
            PTI program.

      The trial court denied defendant's appeal of the prosecutor's rejection,

finding the prosecutor "considered the relevant factors in determining whether

to admit . . . defendant into" PTI and, deferring to the prosecutor's discretion in

weighing those factors, 5 concluded the prosecutor's decision was neither a patent

and gross abuse of discretion, nor was there "anything arbitrary, capricious or

unreasonable about the [prosecutor's] determination[.]"

      Inasmuch as the decision to permit a defendant's diversion to PTI "is a

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582

(1996), our scope of review of a PTI rejection is "severely limited," State v.



5
   N.J.S.A. 2C:43-12(e) lists the seventeen, non-exclusive criteria prosecutors
are to "consider in formulating their recommendation of an applicant's
participation" in PTI.
                                                                           A-0893-18T3
                                        8
Negran, 178 N.J. 73, 82 (2003). "Prosecutorial discretion in this context is

critical for two reasons. First, because 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). 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).        We, therefore, give PTI decisions "enhanced

deference[.]" State v. Brooks, 175 N.J. 215, 225 (2002).

            The prosecutor's discretion is not unbridled, however.
            If a defendant can "clearly and convincingly establish
            that the prosecutor's refusal to sanction admission into
            the program was based on a patent and gross abuse of
            . . . discretion," a reviewing court may overrule the
            prosecutor and order a defendant admitted to PTI. A
            "patent and gross abuse of discretion" is more than just
            an abuse of discretion as traditionally conceived; it is a
            prosecutorial decision that "has gone so wide of the
            mark sought to be accomplished by PTI that
            fundamental fairness and justice require judicial
            intervention." In State v. Bender, 80 N.J. 84 (1979), we
            elaborated on the patent and gross abuse of discretion
            standard:

                   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. . . .

                                                                            A-0893-18T3
                                         9
                    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 [PTI].

                    [Id. at [93] (citation omitted).]

              [Wallace, 146 N.J. at 582-83 (citation omitted) (first
              quoting State v. Leonardis, 73 N.J. 360, 382 (1977);
              then quoting State v. Ridgway, 208 N.J. Super. 118,
              130 (Law Div. 1985)).]

      Defendant has failed to meet his burden.            Obviously, the prosecutor

considered the criteria delineated in the memorandum. Contrary to defendant's

contention that the prosecutor "placed all the weight on the allegations of sexual

assault," neither the endangering nor the aggravated sexual assault counts were

mentioned in the rejection memorandum; only the criminal restraint charge was

considered.

      Further, the weight assigned to the five mentioned factors was not

arbitrary, irrational or otherwise an abuse of discretion, much less a patent and

gross abuse. Despite defendant's claim that he "was seeking to calm down a

ten[-]year[-]old child who was in the middle of a meltdown," and that his

"actions were committed in the heat of the moment" without "any malicious

intent," he pleaded guilty to criminal restraint. That is, he admitted the nature

of the offense and the facts of the case, see N.J.S.A. 2C:43-12(e)(1) and (2),

                                                                            A-0893-18T3
                                         10
included his knowing restraint of O.P., "unlawfully in circumstances exposing

[her] to risk of serious bodily injury[,]"6 N.J.S.A. 2C:13-2(a). Moreover, the

crime was a sex offense, N.J.S.A. 2C:7-2(b)(2), requiring registration under

Megan's Law, N.J.S.A. 2C:7-2(a)(1).

      As to the third criterion, the prosecutor considered defendant's age. And

the prosecutor's determination that defendant denied the allegations is buttressed

by the PTI investigator's report documenting her interview with defendant:

"[h]e maintains that the allegations against him are false and stated that he

'would never do such a thing.'" Defendant contends he is amenable to correcting

his behavior as evidenced by his semiweekly therapy to address his anxiety and

depression.   He points to two reports, one from the licensed professional

counselor (LCP) who assessed defendant on March 26; the other from the

psychologist who examined defendant on March 19, 2018.               The reports,

prepared after his interview with the PTI investigator on March 8, 2018, were

obviously not included with defendant's PTI application, and there is no record

proof of them being forwarded to the prosecutor. Even if they were, we discern

no evidence in the reports pertinent to the statutory PTI factors.



6
  The plea transcript is not included in the appeal record, but defendant does not
allege the factual basis to his plea did not include these statutory elements.
                                                                          A-0893-18T3
                                       11
      The LCP's report mentions defendant and the counselor "continue to

address cognitive distortions related to depression and are processing effective

[cognitive behavioral therapy] techniques," and that defendant "appears to be

making progress in treatment and is practicing coping skills to alleviate

symptoms of depression." Nothing in the report is relevant to defendant's

motivation, other than the self-serving impetus he currently advances in his

merits brief: to "overcome" the "considerable stress" and resulting "depression

and anxiety" he says were engendered from "[t]he incident" and to obtain the

"benefit from the treatment services" through PTI. Although defendant avers in

his merits brief that "it is clear the treatments available through [PTI] would be

benefication (sic)" to him and that he "understands he made a mistake and is

actively seeking treatment," none of the treatment he has undertaken is related

to the cause of his crime, only the impact his prosecution has had on him. He

also states that he "is further motivated to succeed in the program so he is not

labeled as a convicted felon and forced to register as a sex offender under

Megan's Law" and is also motivated "to complete [PTI] and work on rebuilding

his name and reputation."

      Additionally, even though the psychologist determined defendant posed

"a very low risk to the community sexually," he recommended defendant, as a


                                                                          A-0893-18T3
                                       12
precaution, "not have unsupervised access with young girls," and further stated

that defendant would "benefit from therapy to guide him in achieving a positive

adjustment and in managing his emotional distress."

      As such, the reports are not relevant to the fifth, sixth, eleventh, fourteenth

and seventeenth statutory factors which were not expressly mentioned in the

rejection memorandum. Neither report evidences any treatment or plan for

defendant to address his criminal behavior. Nor are the reports or defendant's

treatment relevant to the seventh factor which defendant argues was ignored by

the prosecutor. Tellingly, defendant argues the prosecutor failed to consider

criterion seven—"[t]he needs and interests of the victim and society[,]" N.J.S.A.

2C:43-12(e)(7)—because the "needs and interests of society would be better

served by not saddling [defendant] with a criminal record and forcing him to

register under Megan's Law for the rest of his life." His focus on returning to

coaching and mentoring young men and women is not relevant to the needs and

interests of the victim and society, especially for a defendant who admitted to a

sex offense that exposed the victim to serious bodily injury—a crime defendant

contends was only "technically assaultive[.]"




                                                                             A-0893-18T3
                                        13
      The prosecutor considered that defendant had no prior record.             The

charges do not involve any codefendants. Thus, criteria eight, nine, twelve,

thirteen, fifteen and sixteen are irrelevant.

      We determine the balance of defendant's arguments, including his

contention that the victim's mother stated she would not be averse to his

admission to PTI if he "paid $40,000 in moving and therapy expenses" and, as

such, the victim's desire whether to forego prosecution should be afforded little

weight, to be without sufficient merit to warrant discussion in this opinion. R.

2:11-3(e)(2).

      We discern no "clear error of judgment" that would warrant a court order

enrolling defendant in PTI. State v. Lopes, 289 N.J. Super. 460, 475 (Law. Div.

1995) (quoting Nwobu, 139 N.J. at 247). The prosecutor did not "fail[] to

consider all relevant factors or consider[] irrelevant factors[.]" Ibid. (quoting

Nwobu, 139 N.J. at 247). This is not one of those cases where the prosecutor's

consideration or weighing process requires judicial interference "to check [] the

'most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J.

Super. 555, 563 (App. Div. 2014) (alteration in original) (quoting Negran, 178

N.J. at 82). The denial of defendant's PTI application was neither a patent and

gross abuse of discretion, nor an abuse of discretion requiring a remand.


                                                                            A-0893-18T3
                                        14
Affirmed.




                 A-0893-18T3
            15
