                                NOT FOR PUBLICATION WITHOUT THE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-1099-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRIAN M. RAMOS,

     Defendant-Appellant.
_________________________________

                    Submitted September 18, 2018 – Decided September 28, 2018

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment No. 16-10-
                    0752.

                    Joseph E. Krakora, Public Defendant, attorney for
                    appellant (Brian P. Keenan, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Paul H. Heinzel, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Brian M. Ramos was charged with fourth-degree credit card

theft, N.J.S.A. 2C:21-6(c)(1) and 2C:5-2(a)(1) and (2), third-degree fraudulent

use of a credit card, N.J.S.A. 2C-21-6(h) and 2C:5-2(a)(1) and (2), and second-

degree trafficking in personal identification information, N.J.S.A. 2C:21 -

17.3(b)(2). Defendant applied for admission into Pretrial Intervention (PTI).

      The PTI director recommended defendant's acceptance into the program

but was overruled by the prosecutor. Following rejection of his PTI application

by the Somerset County Prosecutor, defendant filed a motion in the Law

Division appealing from that rejection that was denied by the trial court.

Defendant then pleaded guilty to the offenses, with count three being amended

to third-degree trafficking in personal information, and was sentenced.

Defendant appeals the order denying his motion to override the prosecutor's

rejection, arguing the trial court erred when it upheld the prosecutor's rejection

of his PTI application. We affirm.

      On September 8, 2016, Bridgewater police officers were dispatched to

Bridgewater Commons Mall to investigate a report of defendant and other

suspects committing credit card fraud at Sephora. Defendant was arrested

outside the mall, and a search incident to his arrest uncovered a fraudulent credit

card with his name on it. The account number did not correlate with the credit


                                                                           A-1099-17T3
                                        2
card number on the reverse side of the card within the black magnetic stripe.

Police confirmed that this credit card, and other credit cards seized from co-

defendants that day, were fraudulently created. Defendant admitted that he

intended to use the card, which was not his, and that he "jointly possessed

identities of at least five people with [his] co[-]defendant[s]."

      Defendant was eighteen years old at the time of his arrest. He has no prior

criminal convictions, no history of violence, and has never participated in any

diversionary programs.

      Defendant applied for admission into PTI and was recommended for

admission by the director. In an eight-page, single spaced letter, the prosecutor

objected to defendant's admission into PTI, citing 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), 5 (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), 7 (the needs and interests of the victim and society), 13 (any

involvement of the applicant with organized crime), 14 (whether or not the crime


                                                                           A-1099-17T3
                                         3
is of such a nature that the value of supervisory treatment would be outweighed

by the public need for prosecution), 15 (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 procedures, and 16 (whether or not the applicant's

participation in pretrial intervention will adversely affect the prosecution of

codefendants). N.J.S.A. 2C:43-12(e)(1), (2), (3), (4), (5), (7), (13), (14), (15),

(16). In his letter, the prosecutor referenced Rule 3:28 and Guideline 3(i), which

he acknowledged "we are supposed to consider [in] his individual

circumstances." The letter also states, "Defendant gave us nothing. He didn't

give us anything to review. All I have is, well, he got arrested at the mall with

everybody else with credit cards and we have to put that into context."

      Defendant then appealed the denial of entry into PTI to the Law Division

that was opposed by the prosecutor. The PTI judge issued an order and a

nineteen-page written decision denying defendant's appeal.            The decision

included a detailed review of the prosecutor's basis for rejecting defendant's PTI

application, including the fact-specific analysis of the statutory criteria set forth

in the prosecutor's statement of reasons.




                                                                             A-1099-17T3
                                         4
      The judge found that the prosecutor "has not abused its discretion," and

weighed all of the factors in making his determination. The judge noted that the

prosecutor considered that this was "not an isolated incident," and the offense

"did not happen by chance or out of spur of the moment." Rather,

            the offense was a culmination of multiple phases that
            were well thought-out by defendant . . . such as . . . the
            seeking out and purchasing of cloned credit cards; the
            foresight and anticipation of the need of assistance in
            completing the offense; traveling a substantial distance
            from New York to Bridgewater, New Jersey; actively
            seeking specific stores within the shopping center to
            target; choosing items to purchase; [and] the attempt to
            make a purchase with one of the cloned credit cards.

      The prosecutor's position that "the offense at bar [is] a piece of an ongoing

organized criminal activity," militating against defendant's admittance to PTI,

notwithstanding his age, or excusing his participation as a youthful indiscre tion

was persuasive to the court. Finally, the judge found that the prosecutor had

engaged in an individualized assessment of the application. As a result, the

judge concluded that the prosecutor's rejection was not a per se or categorical

denial and did not amount to a patent and gross abuse of discretion.

      Thereafter, defendant pled guilty to violating N.J.S.A. 2C:21-6(c)(1)

(credit card theft); N.J.S.A. 2C:21-6(h) and 2C:5-2(a)(1) (fraudulent use of a

credit card); and N.J.S.A. 2C:21-17.3b(2) (an amended count of third-degree


                                                                           A-1099-17T3
                                        5
trafficking in personal information). Defendant was sentenced to a concurrent

one-year probationary term, plus applicable fees and penalties.

      Defendant appeals the denial of his PTI motion. See R. 3:28(g). He raises

the following arguments:

            POINT ONE:

            THE    PROSECUTOR'S    REJECTION    OF
            [DEFENDANT'S]     PTI      APPLICATION
            CONSTITUTES A PATENT AND GROSS ABUSE
            OF DISCRETION BECAUSE IT WAS PREMISED
            ON AN IMPROPER PRESUMPTION AGAINST
            ENROLLMENT,    A   CONSIDERATION    OF
            IMPROPER FACTORS AND A FAILURE TO
            CONSIDER RELEVANT FACTORS.

            A.    THE PROSECUTOR IMPROPERLY APPLIED
                  A PRESUMPTION AGAINST ADMISSION
                  BASED ON [DEFENDANT'S] INDICTMENT
                  FOR   A   SECOND-DEGREE   OFFENSE
                  RESULTING IN A CLEAR ERROR IN
                  JUDGMENT.

            B.    THE    PROSECUTOR'S    ERRONEOUS
                  DETERMINATION THAT [DEFENDANT]
                  WAS INVOLVED IN ORGANIZED CRIME
                  WAS   BASED    [UPON]  UNRELATED
                  OFFENSES BY OTHER DEFENDANTS.

            C.    THE    PROSECUTOR'S    COLLECTIVE
                  EVALUATION OF [DEFENDANT'S] PTI
                  APPLICATION TOGETHER WITH HIS CO[-
                  ]DEFENDANTS RESULTED IN A FAILURE
                  TO CONSIDER RELEVANT FACTORS AND
                  DEPRIVED HIM OF AN INDIVIDUALIZED

                                                                       A-1099-17T3
                                       6
                  ASSESSMENT OF HIS AMENABILITY TO
                  REHABILITATION.

      After reviewing the record presented to the PTI judge and being mindful

of the enhanced deferential standard governing judicial review of prosecutorial

decisions affecting admission into this diversionary program, we affirm. We

conclude that the PTI judge did not err when she denied defendant's motion to

override the prosecutor's rejection of defendant's PTI application on the basis

that the prosecutor's decision did not constitute a "patent and gross abuse of

discretion" as defined by our Supreme Court in State v. Bender, 80 N.J. 84, 93

(1979).

      Defendant argues that the prosecutor's rejection constituted a patent and

gross abuse of discretion and a presumption against admission because

defendant was indicted for a second-degree offense. However, the presumption

of rejection was duly found by the judge as not constituting error, or "a

compelling reason" for defendant's admission into PTI.         The prosecutor's

argument that the implementation of the County Prosecutor's "Targeted

Enforcement Plan" (TEP), which had been created to specifically address the

rise in credit card fraud at the Bridgewater Commons Mall and the nature of the

offense and facts in the case "strongly militate against diversion." In our view,



                                                                         A-1099-17T3
                                       7
the judge used the appropriate deferential standard of review by finding no

patent and gross abuse of discretion.

      As statutorily established in N.J.S.A. 2C:43-12 to -22, and as implemented

under Rule 3:28 and the Guidelines for Operation of Pretrial Intervention in New

Jersey, PTI is fundamentally a discretionary program.         Subject to judicial

review, admission into PTI is based on a recommendation by the criminal

division manager, with the consent of the prosecutor. State v. Nwobu, 139 N.J.

236, 246 (1995). The prosecutor's assessment is to be guided by seventeen non -

exclusive factors enumerated in the PTI statute. N.J.S.A. 2C:43-12(e)(1)-(17).

Courts must "presume that a prosecutor considered all relevant factors, absent a

demonstration by the defendant to the contrary."       State v. Wallace, 146 N.J.

576, 584 (1996).

      "Deciding whether to permit diversion to PTI 'is a quintessentially

prosecutorial function.'" State v. Waters, 439 N.J. Super. 215, 225 (App. Div.

2015) (quoting Wallace, 146 N.J. at 582). "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." Nwobu, 139 N.J. at 246. "Accordingly, 'prosecutors are granted broad


                                                                          A-1099-17T3
                                        8
discretion to determine if a defendant should be diverted' to PTI instead of being

prosecuted." Waters, 439 N.J. Super. at 225 (quoting State v. K.S., 220 N.J.

190, 199 (2015)). In State v. Negran, 178 N.J. 73 (2003), the Court described

the wide but not unlimited discretion afforded prosecutors when reviewing PTI

applications, and the enhanced deference courts should employ:

            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. The deference has been categorized as
            enhanced or extra in nature. Thus, the scope of review
            is severely limited. Judicial review serves to check
            only the most egregious examples of injustice and
            unfairness.

            A prosecutor's discretion in respect of a PTI application
            is not without its limits, however. A rejected applicant
            must be provided with a clear statement of reasons for
            the denial. That writing requirement is intended to
            facilitate judicial review, assist in evaluating the
            success of the PTI program, afford to defendants an
            opportunity to respond, and dispel suspicions of
            arbitrariness. The requirement also enables a defendant
            to challenge erroneous or unfounded justifications for
            denial of admission.

            [Id. at 82 (citations omitted); see also K.S., 220 N.J. at
            199-200.]

      As correctly noted by the PTI judge, the trial court must not substitute its

own discretion for that of the prosecutor even where the prosecutor's decision is


                                                                          A-1099-17T3
                                        9
one which the trial court disagrees or finds to be harsh. See State v. Kraft, 265

N.J. Super. 106, 112-13 (App. Div. 1993).          "Trial courts may overrule a

prosecutor's decision to accept or reject a PTI application only when the

circumstances 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." State v. Roseman, 221 N.J. 611, 624-25 (2015) (citations

omitted). We apply the same standard of review as the trial court, and review

its decision de novo. Waters, 439 N.J. Super. at 226.

      In State v. Rizzitello, 447 N.J. Super. 301 (App. Div. 2016) we described

the burden imposed on a defendant seeking to overturn a prosecutorial rejection.

            To establish the prosecutor's rejection of defendant's
            PTI application amounted to a patent and gross abuse
            of discretion, a defendant must prove, by clear and
            convincing evidence, 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.

            [Id. at 313 (citations omitted).]

      Defendant has not met his heavy burden. He has not shown that the

prosecutor's decision clearly subverted the goals underlying PTI. Conversely,

                                                                           A-1099-17T3
                                       10
granting defendant PTI would not necessarily serve all the goals of PTI set forth

in N.J.S.A. 2C:43-12(a)(1)-(5). We cannot say that the prosecutor's decision

could not have been reasonably made upon weighing the relevant factors. See

Nwobu, 139 N.J. at 254.

      On the contrary, we find that the prosecutor properly considered and

weighed all of the relevant factors in reaching his decision to reject defendant's

application. Accordingly, we hold that the prosecutor's refusal to sanction

admission into the program did not constitute a patent and gross abuse of

discretion.

      Defendant's remaining arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                       11
