                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4693-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TAYLOR DOE,1

     Defendant-Appellant.
_______________________

                   Submitted June 4, 2020 – Decided July 13, 2020

                   Before Judges Alvarez and DeAlmeida

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Gloucester County, Indictment No. 17-10-
                   0855.

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

1
  Defendant did not move to proceed under a pseudonym. However, we have
elected to use one (Taylor Doe) when referring to defendant. See Sonia Doe, a
Pseudonym v. N.J. Dep't of Corr., No. A-5101-18 (App. Div. June 3, 2020). In
this circumstance, defendant's privacy interests outweigh the Judiciary's policy
of transparency. See ABC v. XYZ Corp., 282 N.J. Super. 494, 501-02 (App.
Div. 1995); see also N.J.S.A. 2A:82-46(b).
            Charles A. Fiore, Gloucester County Prosecutor,
            attorney for respondent (Alec J. Gutierrez, Assistant
            Prosecutor, on the brief).

PER CURIAM

      Defendant Taylor Doe was prosecuted for two separate acts of third-

degree criminal mischief, N.J.S.A. 2C:17-3, one committed in Camden County

on April 8, 2017, at the Trump National Golf Course, allegedly causing $32,000

in damages, the other on the Gloucester County Campus of Rowan University,

allegedly causing $15,341.83 in damages. The matters were consolidated and

addressed in Gloucester County. On January 29, 2018, the Criminal Division

manager rejected defendant's pre-trial intervention (PTI) application.       See

N.J.S.A. 2C:43-12 and former R. 3:28.2 On February 16, 2018, the Gloucester

County Prosecutor's Office also rejected the application, for the reasons stated

in the PTI director's letter and for the following additional reasons:       the

application of each statutory factor in relation to defendant, and the nature of

the charges. Defendant appeals, claiming that because her co-defendants in

Camden were admitted into PTI, her exclusion from the program establishes


2
   "Following changes to Rule 3:28, however, the Guidelines were eliminated.
Now, many of their prescriptions -- with significant variations -- are contained
in Rules 3:28-1 to -10." State v. Johnson, 238 N.J. 119, 128 (App. Div. 2019).
The changes went into effect July 1, 2018, months after the argument in this
case.
                                                                        A-4693-18T4
                                       2
improper disparate treatment. She also contends the rejection was improperly

anchored in her political views, and that the prosecutor failed to take into

account her personal characteristics. For the reasons stated by Judge Robert P.

Becker, Jr., we affirm. We add the following comments.

      In the first incident, defendant and two others spray painted foul language

on the Trump National Golf Course fairways and putting green. In the second

incident, while a student at Rowan, defendant spray painted slogans on a

veteran's memorial, portions of the pavement, and campus police vehicles.

      Defendant, a transgender person, when interviewed during the PTI

application process disclosed a mental health and possible alcohol abuse history.

She also disclosed sexual victimization as a child and abusive relationships in

adolescence. Defendant's parents agreed that if she were admitted into PTI, they

would pay any restitution obligation immediately.             Defendant is an

accomplished poet, first published at a young age.

      The Criminal Division letter included the following explanation of the

discovery of defendant's involvement in the Rowan vandalism:           "The tips

provided personal contact information and also social media that showed her

dislike for government (Burning American Flag)." It also noted that during the

course of the investigation, a Glassboro Police Department officer viewed a


                                                                         A-4693-18T4
                                       3
number of videos of defendant at poetry readings in which she objected to

Rowan's withdrawal of "funding from the office that supports the LGBT

community . . . . the fact that her friend was arrested during a protest . . . . [and

expressed]       distaste     for      anything       that     represented        the

government/establishment." It also concluded that the program was designed to

provide minimal supervision for those charged "with relatively minor

offenses[,]" and that the amount of damage in these prosecutions made the acts

"more than relatively minor offenses." After noting defendant was charged with

"separate planned acts of vandalism[,]" the letter referred to the "need for long-

term supervision and psychological and substance abuse treatment not available

through the PTI program." It concluded that defendant had neither established

"compelling reasons justifying admission nor . . . that a decision against

enrollment would be arbitrary and unreasonable[.]"

      The prosecutor's letter of rejection "agree[d]" the application "should be

denied for substantially the same reasons [as the Criminal Division]," but

engaged in a detailed discussion of each statutory factor then in effect. The first

two factors the prosecutor weighed heavily against admission were the "separate

instances of third-degree criminal mischief in both Camden and Gloucester

Counties resulting in severe monetary loss," and the "facts of the case." In a


                                                                             A-4693-18T4
                                         4
somewhat puzzling comment, the prosecutor observed that defendant's

motivation was "unknown to the Prosecutor at this point . . . ." He also weighed

defendant's unique personal characteristics as moderately against admission

because it seemed "unlikely the program can be tailored to meet her needs."

Ultimately, the prosecutor concluded any benefit from admission into PTI would

be offset by harm to society in abandoning criminal prosecution.

      Following oral argument on defendant's appeal to the Law Division, the

court issued a thorough written decision. After canvassing the pertinent statutes,

rules, and caselaw, the judge found defendant had failed to meet the heavy

burden of establishing by clear and convincing evidence that rejection from the

program constituted a patent and gross abuse of prosecutorial discretion. The

offenses were committed three months apart, caused substantial damage to

property, and the prosecutor properly assessed each of the seventeen statutory

factors.   The judge opined defendant did not "show[] compelling reasons

justifying her admission and establishing that a decision against enrollment

would be arbitrary and unreasonable." He found "no clear error in judgment,"

nor that the failure to admit her into the program would subvert program goals.

      Now on appeal, defendant argues:




                                                                          A-4693-18T4
                                        5
            POINT I

            THIS COURT SHOULD REVERSE THE DENIAL OF
            [DEFENDANT]'S PTI APPLICATION, AND EITHER
            ADMIT [DEFENDANT] INTO PTI, OR REMAND
            FOR A FRESH LOOK.

                  1.    The Gloucester County Prosecutor and
                  Criminal Division Manager failed to consider
                  that Camden County admitted [defendant]'s two
                  co-defendants into PTI for the same or similar
                  acts.

                  2.    The prosecutor's denial of [defendant]'s
                  PTI    application     improperly     relied on
                  disagreement with [defendant]'s political
                  viewpoint, in violation of the First Amendment.

                  3.     The prosecutor's denial of [defendant]'s
                  PTI application failed to consider the cost to
                  society of using the criminal-justice system to
                  chill speech on matters of public concern.

                  4.    The prosecutor's denial of [defendant]'s
                  PTI application failed to consider that
                  [defendant] was a victim of childhood sexual
                  assault.

                                        I.

      "In respect of the close relationship of the PTI program to the prosecutor's

charging authority, 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) (citing State v. Nwobu, 139 N.J. 236,


                                                                          A-4693-18T4
                                        6
246 (1995)). "Thus, the scope of review is severely limited[,]" in which we

"check only the ‘most egregious examples of injustice and unfairness. '" Ibid.

(citing Nwobu, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State

v. Kraft, 265 N.J. Super 106, 111 (App. Div. 1993)) (quoting State v. Leonardis,

73 N.J. 360, 384 (1977); State v. DeMarco, 107 N.J. 562, 566 (1987)).

      Defendants "attempting to overcome a prosecutorial veto, must [‘]clearly

and convincingly establish that the prosecutor's refusal to sanction admission

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.'" Ibid. (internal quotations omitted) (quoting Nwobu, 139 N.J. at 246).

      A prosecutor's abuse of discretion requires defendant show the

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.

            [Id. at 83 (quoting State v. Bender, 80 N.J. 84, 93
            (1979))].




                                                                         A-4693-18T4
                                       7
                                        II.

      In this case, defendant relies on State v. Maldonado, 314 N.J. Super. 539

(App. Div. 1998), as support for the position that those charged with the same

offenses, who have similar prior personal histories, must be treated on an equal

basis. Id. at 544-45. But, in contrast to this case, in Maldonado, the four

defendants were charged with precisely the same offenses. Here, defendant was

separately charged with an unrelated offense of third-degree criminal mischief

resulting in substantial monetary loss to a different victim.

                                       III.

      Defendant's contention that the denial was improper because of the

Criminal Division office's disagreement with defendant's political views has

some merit. It is important to society that the criminal justice system not become

an instrument for the suppression of First Amendment freedoms. The language

in the letter referring to the burning of the American flag is troubling. In a

different situation, the questionable comments regarding defendant's political

views might be more consequential. Every citizen has the right to free speech,

including burning the American flag as political expression.       See Texas v.

Johnson, 491 U.S. 397, 418-20 (1989). The issue here, however, is whether that

impermissible outlook was mirrored by the prosecutor's rejection, and formed a


                                                                          A-4693-18T4
                                        8
significant element in the denial of defendant's application. We cannot agree

that it did.

       The prosecutor did by reference adopt the director's letter, however, the

prosecutor's analysis of the statutory factors made no reference to defendant's

political beliefs. He instead referred to "[t]he existence of personal problems

and character traits which may be related to the . . . crime." The reference is to

defendant's past history and personal problems, not her political views.

       Not unsurprisingly, the prosecutor weighed most heavily the fact

defendant was involved in two separate offenses causing substantial damage.

This was not a continuing offense, such as a bookkeeper's theft of her employer's

funds over time—this was two distinct and separate incidents.

       The record also does not support a conclusion that defendant's First

Amendment rights were violated by her conviction for criminal mischief.

"[S]peech related to matters of public concern 'occupies the highest rung of the

hierarchy of First Amendment values [.]'"          Rocci v. Ecole Secondaire

Macdonald-Cartier, 165 N.J. 149, 156 (2000) (internal quotations omitted)

(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759

(1985). "Such speech ‘requires maximum protection.'" Ibid. (quoting Sisler v.

Gannett, Co., Inc., 104 N.J. 256, 266 (1986)). If a statute "relate[s] to the


                                                                           A-4693-18T4
                                        9
suppression of free expression, [the court] must decide if the statute[] [is]

content neutral or content based to determine the level of scrutiny . . . [to] apply

under the First Amendment." State v. Vawter, 136 N.J. 56, 68 (1994).

            "The principal inquiry in determining content-
            neutrality . . . is whether the government has adopted a
            regulation of speech because of disagreement with the
            message it conveys." Ward v. Rock Against Racism,
            491 U.S. 781, 791 (1989). If a regulation is content
            neutral, "reasonable time, place, or manner restrictions"
            are appropriate. Clark v. Cmty. for Creative Non–
            Violence, 468 U.S. 288, 293 (1984). Time, place, or
            manner regulations are reasonable if they are "narrowly
            tailored to serve a significant governmental interest,
            and [ ] they leave open ample alternative channels for
            communication . . . . Ibid.

            [Vawter, 136 N.J. at 68 (alteration in original)].

      Nonetheless, state governments may regulate graffiti, for example, to

prevent vandalism, although regulatory laws cannot be so narrow as to burden

speech more than necessary to prevent property damage. See Vincenty v.

Bloomberg, 476 F.3d 74, 90 (2d Cir. 2007); see also AMERICAN BAR

ASSOCIATION Understanding the First Amend. Limitations on Gov't Reg. of

Artwork,                     (Jan.                     2,                    2017),

https://www.americanbar.org/groups/state_local_government/publications/stat

e_local_law_news/2016-



                                                                            A-4693-18T4
                                        10
17/winter/understanding_first_amendment_limitations_government_regulation

_artwork/.

      The definition of criminal mischief is content neutral. It does not limit

speech. The State has a legitimate interest in suppressing graffiti where the

result is property damage as opposed to mere expression of ideas.           The

prosecution here was certainly content neutral. Defendant's rejection from PTI

because of her involvement in two events, not one, also appears content neutral.

                                      IV.

      Finally, defendant contends that the sexual abuse she suffered earlier in

life presents a compelling reason for admission. Unfortunately, that factor is

not included in the statutory scheme, nor have we found any case in which that

history created a compelling reason for admission. Defendant cites State v.

Briggs, 349 N.J. Super. 496 (App. Div. 2002), in support of the argument, but

the case involves a murder committed by a spouse who had been physically and

mentally abused by the victim for twenty years. The expert opinions found that

defendant suffered from post-traumatic stress disorder. The record here does

not include evidence connecting the trauma this defendant suffered to the

criminal conduct.




                                                                        A-4693-18T4
                                      11
      Therefore, we agree with Judge Becker that defendant failed to meet her

burden of proving by clear and convincing evidence that the prosecutor's

rejection of her application was a patent and gross abuse of discretion.

      Affirmed.




                                                                           A-4693-18T4
                                      12
