                        NOT FOR PUBLICATION WITHOUT THE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-3254-14T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HEATHER QUINTANA,

     Defendant-Appellant.
___________________________

              Submitted June 28, 2016 – Decided           June 8, 2017

              Before Judges Espinosa and Kennedy.

              On appeal from the Superior Court of New
              Jersey,   Law  Division,   Somerset County,
              Indictment No. 13-02-0089.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alicia J. Hubbard, Assistant
              Deputy Public Defender, on the brief).

              Michael H. Robertson, Acting Somerset County
              Prosecutor, attorney for respondent (James L.
              McConnell, Special Deputy Attorney General/
              Acting Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        In this appeal, defendant argues that the rejection of her

application for pretrial intervention (PTI) was a patent and gross
abuse    of   discretion,     requiring     reversal      and   a    remand    for

reconsideration and her admission into PTI.            We affirm.

       Defendant was first arrested on May 28, 2011, and later

charged with fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a),

fourth-degree unlawful possession of a prescription drug, N.J.S.A.

2C:35-10.5(e)(2), criminal mischief, N.J.S.A. 2C:17-3(a)(1), and

other crimes.      She applied to PTI and was admitted by the court,

over objection from the State.

       However, on November 30, 2012, prior to admission into PTI

for the first arrest, defendant was again arrested.                 Defendant had

been    observed   changing    price   tags    on   the    merchandise        at   a

department store from higher prices to lower prices.                 She had then

purchased the items at a lower price, only to return them for the

full value of the higher price.            Defendant had also attempted to

leave the store with unpaid items in her possession.                  Subsequent

to her arrest, the police seized from defendant several pills that

were controlled dangerous substances.

       On February 13, 2013, defendant was indicted for third-degree

shoplifting, N.J.S.A. 2C:20-11(b)(3), and third-degree possession

of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1).                      On

May 9, 2013, defendant again applied for admission into PTI.

       On January 9, 2014, defendant went to trial for the events

of May 28, 2011.     A jury returned a verdict of not guilty for the

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indictable charge of criminal mischief.               However, in the bench

trial portion on January 13, 2014, defendant was found guilty of

the disorderly persons offenses of theft and resisting arrest.

The court sentenced defendant to one year of probation and fines.

     On March 28, 2014, the criminal division manager rejected

defendant for admission into PTI for the charges relating to

November 30, 2012, reasoning that defendant's charge was part of

a continuing pattern of antisocial behavior and that she had a

previous record of violations, and that under Rule 3:28, her entry

required the State's approval.           Defendant appealed, and the State

joined the criminal division manager's rejection, claiming that

defendant   was    still   on   probation     and   that   she    was    "not    an

appropriate candidate."

     On   July    31,   2014,   in   a   written    opinion,     Judge   Paul    W.

Armstrong agreed with the State and denied defendant's appeal,

finding that the State's reasons were "legally sufficient," and

that defendant failed to "clearly and convincingly establish[]

'that the [State's] decision was either a gross and patent abuse

of discretion or arbitrary and unreasonable.'"                 Judge Armstrong

issued an order memorializing this decision on August 28, 2014.

     On November 7, 2014, defendant pled guilty to the shoplifting

charge and to an amended disorderly persons charge for failure to

turn over a controlled dangerous substance.            On February 13, 2015,

                                         3                                A-3254-14T1
defendant was sentenced to one year probation and fines.                   This

appeal followed.

       On appeal, defendant argues that both the State and the trial

court erroneously applied Rule 3:28 Guideline 3(e), which states,

"[w]hile [PTI] is not limited to 'first offenders,' defendants who

have   been    previously   convicted   of   a   criminal    offense    should

ordinarily be excluded."      Pressler & Verniero, Current N.J. Court

Rules, Guideline 3(e) on R. 3:28 (2017).            Defendant argues that

she had been acquitted of any and all indictable crimes, and that

she had only been adjudicated on disorderly persons offenses.                 In

addition, defendant argues that the State failed to consider all

relevant factors of N.J.S.A. 2C:43-12(e).          We do not agree.

       Our review of a PTI rejection is "severely limited" and we

only review for 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)).               Prosecutors have

broad discretion in decisions to admit or reject a defendant.

State v. K.S., 220 N.J. 190, 199 (2015); Leonardis, supra, 73 N.J.

at 381.       We may not substitute our discretion for that of the

prosecutor.     State v. Waters, 439 N.J. Super. 215, 237 (App. Div.

2015).    The afforded deference is "enhanced" or "extra" in nature.

Negran, supra, 178 N.J. at 82 (quoting State v. Baynes, 148 N.J.

434, 443-44 (1997)).

                                    4                                  A-3254-14T1
      In broad strokes, PTI is a diversionary program that allows

defendants to avoid "the stigma accompanying a verdict of guilt

to any criminal offense." State v. Bell, 217 N.J. 336, 347 (2014).

"[E]ligibility for PTI is broad enough to include all defendants

who demonstrate sufficient effort to effect necessary behavioral

change and show that future criminal behavior will not occur."

State v. Roseman, 221 N.J. 611, 622 (2015) (quoting Pressler &

Verniero, Current N.J. Court Rules, Guideline 2 on R. 3:28 at 1167

(2015)).   However, as noted above, "the decision to grant or deny

PTI is a 'quintessentially prosecutorial function.'"             Id. at 624

(quoting State v. Wallace, 146 N.J. 576, 582 (1996)).

      A proper PTI determination is guided by the seventeen factors

enumerated in N.J.S.A. 2C:43-12(e), and by the Guidelines for

Operation of Pretrial Intervention in New Jersey, Pressler &

Verniero, Current N.J. Court Rules, Guidelines on R. 3:28 (2017).

A   prosecutor's    decision   is   an    evaluation    of   a   defendant's

"amenability   to   correction"     and   potential    "responsiveness      to

rehabilitation."     N.J.S.A. 2C:43-12(b).

      If a defendant chooses to challenge a rejection from PTI,

they must "allege and present any facts and materials . . . showing

compelling reasons for justifying admission, and establishing that

a   decision     against   enrollment       would      be    arbitrary    and

unreasonable."     Pressler & Verniero, supra, Guideline 2 on R. 3:28

                                     5                               A-3254-14T1
at   1234-35.     "[A]    defendant   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.'"   State v. Nwobu, 139 N.J. 236, 246 (1995) (emphasis

omitted) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12

(App. Div. 1993)).       Such a showing is defined as the following:

           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. 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)
           (citation omitted); see also Negran, supra,
           178 N.J. at 83.]

      Here, we affirm the trial court's decision to deny defendant's

entry into PTI.     We are satisfied, as was Judge Armstrong, that

there was no abuse of discretion on the part of either the criminal

division manager or the prosecutor.          Although defendant had been

found not guilty on the indictable offense of criminal mischief,

she was still found guilty of disorderly persons conduct for theft

and resisting arrest, and sentenced to probation of one year.           Her

second application for PTI, concerning the events of November 30,


                                      6                            A-3254-14T1
2012, was ultimately denied after she had been placed on probation.

Thus, defendant's prior criminal contacts, together with the most

recent arrest, establish valid reasons for denial premised on

consideration of Guideline 3(e).

     Despite   the   fact   that   her   prior   criminal   contacts   were

disorderly persons in nature, and thus arguably outside the general

purpose that PTI is "limited to persons who have not previously

been convicted of any criminal offense," defendant's two arrests

within two years militate against an exception being made to that

general policy.    N.J.S.A. 2C:43-12(a).     That defendant was not yet

on probation at the time of her second arrest, nor actively

participating in PTI, is of no moment.           Lastly, we note that it

is clear from the record that the factors of N.J.S.A. 2C:43-12(e)

were considered.

     Affirmed.




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