                         RECORD IMPOUNDED

                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-4682-14T2

STATE OF NEW JERSEY,
                                               APPROVED FOR PUBLICATION

     Plaintiff-Appellant,                         February 26, 2016

v.                                                APPELLATE DIVISION

A.S.-M.,

     Defendant-Respondent.
______________________________

           Submitted February 8, 2016 – Decided February 26, 2016

           Before Judges Lihotz, Fasciale and Higbee.

           On appeal from Superior Court of New Jersey,
           Law Division, Somerset County, Indictment
           No. 13-01-0008.

           Geoffrey   D.   Soriano,   Somerset  County
           Prosecutor, attorney for appellant (Rory A.
           Eaton, Assistant Prosecutor, of counsel and
           on the brief).

           Joseph E. Krakora, Public Defender, attorney
           for respondent (Jason A. Coe, Assistant
           Deputy Public Defender, of counsel and on
           the briefs).

     The opinion of the court was delivered by

FASCIALE, J.A.D.

     The   State    appeals   from   a   June    16,    2015   order   granting

defendant's    motion    to    reinstate        him     into   the     pre-trial

intervention   (PTI)    program.         The    court    treated     defendant's
motion as one seeking reconsideration of a prior order, which

terminated defendant's participation in the program, purportedly

because      he     violated         various       PTI    conditions.            The      State

challenges the order as erroneous arguing (1) readmission into

the    PTI     program           contravenes        N.J.S.A.        2C:43-12(g)(1)           and

Guideline 3(g) of Rule 3:28, which the State contends allows a

defendant the benefit of only one opportunity to participate in

PTI; (2) the court disregarded the established procedure for PTI

admission and undermined the prosecutor's role in the process;

and (3) defendant's non-compliance rendered him a poor candidate

for reentry into the PTI program.

      We     hold       that    reconsideration          of   an   order    terminating         a

defendant from the PTI program is not precluded by N.J.S.A.

2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28.                                  That is, a

defendant terminated from the PTI program may be reinstated upon

reconsideration.                 Such    a     reconsideration             is    especially

permissible         when         circumstances           show      the     initial        order

terminating         a    defendant      from   PTI       failed      to    adhere      to    the

requirements of N.J.S.A. 2C:43-13(e), including the obligation

to    undertake         a   "conscientious          judgment"       to     (1)    adequately

consider      whether          the   participant     willfully           violated    the     PTI

conditions; and (2) determine whether the defendant remains a

viable candidate for PTI under the original or modified PTI




                                               2                                       A-4682-14T2
terms.     State   v.    Devatt,      173   N.J.      Super.    188,     194-95    (App.

Div.), certif. denied, 84 N.J. 441 (1980).                  We affirm.

                                       I.

    Defendant worked as a cashier in a department store and was

arrested for under-ringing merchandise for two individuals to

whom he owed money.          A grand jury indicted and charged him with

committing    third-degree       shoplifting,          N.J.S.A.     2C:20-11(b)(5).

Defendant, who was twenty-one-years old at the time, a lawful

permanent resident of this country, and had no criminal history,

applied for admission into the PTI program.                         The prosecutor

granted defendant's application and imposed various conditions

on the supervisory treatment.

    Approximately four months after defendant entered the PTI

program,     the   State     moved     to       terminate      defendant    from    the

program, arguing: defendant failed to report to his probation

officer;    failed      to   submit    to       a   substance    abuse     evaluation;

tested positive for marijuana use; failed to                       pay fines; and

failed to complete community service.                  The first judge scheduled

a PTI termination hearing, at which defendant did not appear.

Following review, the judge ordered defendant's participation in

PTI terminated; however, he expressed no findings on whether

defendant willfully violated the PTI conditions or remained a

viable candidate for supervisory treatment.                       The first judge




                                            3                                 A-4682-14T2
entered    the     termination        order       and   re-listed    the    case     for    a

status conference.

      At the next scheduled status conference, defense counsel

indicated she would "contact PTI to see if they [were] in any

way     inclined     to     accept      [defendant]        back     into     [the]       PTI

[program,]" and if so, she would file a motion for that relief.

At the next conference, before a new judge (the second judge),

defense counsel reported "probation" was unwilling "to join an

application to reopen [defendant's PTI] file[,]" and that she

intended to file a motion.               The second judge listed the matter

for oral argument in March 2015.

      At   oral     argument,         defense      counsel   maintained          defendant

generally       complied       with    all        PTI   conditions,        although      she

acknowledged he "didn't fully comply" and missed some meetings

with his probation officer.              She asserted defendant attempted to

schedule his substance abuse evaluation, but lacked the funds to

do so given the time period allotted; struggled paying his fines

because    he     was     indigent;      completed        more    than     half    of    his

community service hours; and had remained offense free.                                  She

urged    the    court     to   readmit       defendant     into     the    PTI    program,

especially because he was subject to deportation and had a young

child.




                                              4                                    A-4682-14T2
       The State strenuously objected to defendant's reinstatement

into the PTI program.        The assistant prosecutor argued defendant

"totally disregarded the court," which necessitated the issuance

of a bench warrant; was a poor candidate for PTI; and "had his

chance."

       At the hearing, defendant admitted he would test positive

for marijuana if tested that day.                The second judge, who was

clearly frustrated with defendant's lack of appreciation for the

risk    of   deportation,    reserved      decision.         To   fully       ascertain

whether      defendant   remained    a    good   candidate        for    supervisory

treatment, the second judge relisted the matter giving defendant

the opportunity to demonstrate he could remain drug free.

       In June 2015, the parties returned to court.                       The second

judge    noted   defendant    tested      negative     for    drug      use    on   five

separate occasions since March 2015.                 The assistant prosecutor

maintained the State's objection to defendant's reentry into the

PTI program, arguing that defendant was procedurally barred from

seeking      reinstatement   after       termination    by    the       court.       The

second judge rejected the State's argument:

              It seems to me the whole point of [PTI]
              . . . is to help offenders get on the right
              path, and do what they ought to be doing, so
              that they don't end up with a criminal
              record.

                   It does not particularly serve any of
              us well if someone has a criminal record for



                                          5                                    A-4682-14T2
            one offense that perhaps was a youthful
            misdirection . . . and then can't get a job
            [and] can't be a part of functioning society
            . . . .

                   . . . .

                 But since the underlying purpose is
            rehabilitation, and we can expect from the
            people   in  rehabilitation   to  make   some
            mistakes along the way, I am going to
            readmit [defendant] to [the PTI program]
            . . . .

The   second   judge    then   modified     the    PTI   terms    by     extending

defendant's    participation     in   the    PTI    program      for    one   year,

requiring him to undergo a drug and alcohol evaluation, and

imposing twenty additional hours of community service.                   She also

warned defendant that any violations would result in termination

of his supervisory treatment.

                                      II.

      We   begin   by   addressing    the   State's      contention      that   the

plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of

Rule 3:28 prohibit defendant's readmission into the PTI program.

On this legal question, we review the second judge's conclusions

de novo.    State v. Reece, 222 N.J. 154, 167 (2015).                  We conclude

the State's argument is misplaced.

                                      A.

      At the outset, we note that the first judge terminated

defendant from the PTI program without conducting a sufficient




                                       6                                  A-4682-14T2
termination        hearing.          Termination         from    PTI    is     governed     by

N.J.S.A.      2C:43-13(e),         which     states,      in     pertinent      part:     "the

court    shall      determine,       after       summary       hearing,      whether      said

violation         warrants     the        participant's          dismissal       from      the

supervisory treatment program or modification of the conditions

of     continued     participation          in     that     or    another      supervisory

treatment program."            This review requires a judge to make a

"conscientious        judgment[,]"          taking      into     consideration       whether

that    defendant      is     fit    to     continue       in    the    program"      before

deciding whether defendant "wil[l]fully violated [his or her]

PTI conditions" justifying termination from PTI.                          Devatt, supra,

173 N.J. Super. at 194-95.

       The    first        judge    did     not    determine        whether      defendant

willfully         violated     the     PTI       conditions,        whether      defendant

remained      a    suitable    candidate          for    supervisory         treatment,     or

whether dismissal from PTI or modification of the PTI conditions

was    warranted.           Consequently,         the    record     lacks      the   factual

support for the order of termination of PTI.

                                             B.

       Even       though     the     PTI     termination         hearing       lacked      any

meaningful        determination        as    to      whether      defendant      willfully

violated      the    conditions        or    was        otherwise      unfit    as    a    PTI

candidate, the State argues defendant is procedurally precluded




                                              7                                      A-4682-14T2
from seeking reconsideration of that termination based on the

plain language of N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of

Rule 3:28.

     The State's argument is premised on its conclusion that

defendant will receive supervisory treatment twice as a result

of   vacating     the     improvidently-granted           termination     order.

Defendant urges we reject this interpretation, arguing he is not

receiving a second opportunity for PTI related to a different

offense, but reinstated into the program based on the underlying

shoplifting charge.

            PTI is a "diversionary program through which
            certain offenders are able to avoid criminal
            prosecution         by        receiving        early
            rehabilitative services expected to deter
            future criminal behavior."        State v. Nwobu,
            139   N.J.    236,    240    (1995).       PTI   was
            established initially by Rule 3:28 in 1970.
            State v. Watkins, 193 N.J. 507, 517 (2008)
            (citing State v. Leonardis, 71 N.J. 85, 103
            (1976) . . . .         In 1979, the Legislature
            incorporated PTI into the overhaul of the
            criminal    codes,     establishing     PTI   as   a
            statewide    program      pursuant    to    N.J.S.A.
            2C:43-12.     Ibid.      Thus, PTI programs are
            "governed simultaneously by [Rule 3:28] and
            the statute which 'generally mirror[ ]' each
            other."    Ibid.     (quoting State v. Wallace,
            146   N.J.     576,     582    (1996)    (citations
            omitted)).

            [State v.      Roseman,        221    N.J.    611,     621
            (2015).]

     "As    always,     when    interpreting      a    statute's   meaning,     we

attempt    to   discern   and    implement       the   Legislature's     intent."



                                       8                                 A-4682-14T2
State v. Drury, 190 N.J. 197, 209 (2007).                            Applying the basic

techniques of statutory interpretation, we first look to the

statute's plain meaning.                Ibid.       If the language of the statute

is     ambiguous,      or     "admits       to        more     than    one        reasonable

interpretation, we may look to sources outside the language to

ascertain the Legislature's intent."                     State v. Reiner, 180 N.J.

307,    311    (2004).        Extrinsic             sources   used     to    discern         the

Legislature's        intent    include      "the       statute's      purpose,         to    the

extent that it is known, and the relevant legislative history."

Drury, supra, 190 N.J. at 209.                      Moreover, "[w]hen interpreting

court     rules,      we      ordinarily            apply     canons        of     statutory

construction."         Wiese       v.    Dedhia,       188    N.J.    587,       592   (2006).

Thus, we apply the same framework in construing both the statute

and court rule at issue.

       N.J.S.A. 2C:43-12(g)(1) provides:

              Supervisory treatment may occur only once
              with respect to any defendant and any person
              who has previously received supervisory
              treatment under section 27 of P.L.1970,
              c.226 (C.24:21-27), a conditional discharge
              pursuant   to  N.J.S.[A.]  2C:36A-1,  or   a
              conditional dismissal pursuant to P.L.2013,
              c.158 (C.2C:43-13.1 et al.) shall not be
              eligible for supervisory treatment under
              this section.

Guideline     3(g)    of    Rule    3:28,       entitled      "Defendants         Previously

Diverted[,]" states in part that "[s]upervisory treatment may

occur only once with respect to any defendant who has previously



                                                9                                      A-4682-14T2
been enrolled in a program of [PTI] or conditionally discharged

pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1."               Pressler &

Verniero, Current N.J. Court Rules, Guideline 3(g) to R. 3:28

(2016).

      The statute and rule preclude supervisory treatment if a

participant in the PTI program has been conditionally discharged

on   separate   and   unrelated    charges.       A   defendant    is   clearly

ineligible for PTI on new, unrelated charges.             State v. O'Brien,

418 N.J. Super. 428, 438 (App. Div. 2011).

      We consider defendant's reentry into the PTI program, upon

reconsideration of an order terminating his participation in the

program,   a    single   occurrence        of   supervisory   treatment       for

purposes   of   the   rule   and   statute.        The   plain    language      of

N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28 do not

expressly preclude a defendant from seeking reconsideration of

an order terminating him from the PTI program, especially when a

defendant believes the order was erroneously entered.                    Nor is

there any language in the statute or rule which expressly bars a

defendant, who has been erroneously terminated from the program,

from being readmitted into the PTI program.               Thus, neither the

statute nor rule preclude defendant from being reinstated into

the PTI program upon reconsideration.




                                      10                                A-4682-14T2
                                        III.

    The State alternatively contends that by reconsidering a

prior    order    terminating       a     participant         from   supervisory

treatment,     the     second   judge          disregarded     the   established

procedures for admission into PTI.                   The State maintains such

reconsideration        undermines   the         prosecutor's      role    in    the

admission process.       The established procedures referenced by the

State, however, apply to a prosecutor's initial review of a PTI

application,     not    reconsideration         of    an    erroneously   entered

termination order.

    We    briefly      summarize    the        well-settled      procedures     for

admission into the PTI program to demonstrate that the second

judge did not undermine the prosecutor's role.

    New Jersey's PTI program is governed by N.J.S.A. 2C:43-12

and the Supreme Court's guidelines for implementation, set forth

in Rule 3:28.        Generally, individuals with no prior convictions

are afforded the opportunity to avoid prosecution by receiving

rehabilitative services or supervision.                    N.J.S.A. 2C:43-12(a).

A PTI application is initially reviewed by the criminal division

manager, R. 3:28; however, the decision to admit an applicant

into a PTI program rests with the reasoned discretion of the

prosecutor.      N.J.S.A. 2C:43-12(e); see also Nwobu, supra, 139

N.J. at 246.     N.J.S.A. 2C:43-12(e) identifies seventeen factors




                                         11                               A-4682-14T2
for     consideration       when      examining       an     application     for     PTI

admission.

       Prosecutors exercise broad discretion in determining who to

admit into PTI.         Nwobu, supra, 139 N.J. at 246.                    As such, we

extend    "'enhanced'"        deference        to    that    decision.       State    v.

Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148

N.J.    434,   443    (1997)).          Our    "severely      limited"      review    is

designed    to      address    "only     the    'most       egregious    examples     of

injustice and unfairness.'"              Ibid. (quoting State v. Leonardis,

73 N.J. 360, 384 (1977)).

       If an application is denied, the prosecutor must provide a

statement      of    findings        supporting       his     or   her     conclusion.

N.J.S.A. 2C:43-12(f).              A defendant may appeal by moving before

the    Superior     Court     to    overturn        the    prosecutor's     rejection.

Ibid.     The burden to "clearly and convincingly establish that

the prosecutor's decision constitutes a patent and gross abuse

of discretion" rests with the defendant.                       Watkins, supra, 193

N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305-

06 (App. Div. 2007)).                In State v. Bender, 80 N.J.               84, 93

(1979),     the     Court     defined    a      "patent      and   gross    abuse    of

discretion" in the context of a prosecutor's denial of a PTI

application:

            Ordinarily, an abuse of discretion will be
            manifest if defendant can show that a



                                          12                                  A-4682-14T2
           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 [PTI].

           [(Citation omitted).]

The "patent and gross abuse of discretion" standard applies to a

prosecutor's initial decision to reject a candidate into the PTI

program.

      Here, the prosecutor considered defendant's application for

admission into the program and concluded that he was a suitable

candidate for supervisory treatment.                 Defense counsel did not

re-apply to the prosecutor for defendant's admission into the

PTI   program    after     the    first      judge    terminated      defendant's

participation in the program.             Rather, she filed a motion for

reinstatement of PTI essentially seeking reconsideration of the

termination     order.      Thus,      the   "patent    and    gross     abuse   of

discretion"     standard    ordinarily       applicable   to     a   prosecutor's

initial    decision      does    not    govern   a     court's       discretionary

decision on reconsideration to readmit a defendant into PTI.                      In

other words, the court's authority to reinstate a previously

admitted participant into the PTI program is not limited to




                                        13                                A-4682-14T2
circumstances      where   the   prosecutor's       objection       amounts   to    a

"patent and gross abuse of discretion."

                                       IV.

       Finally, we reject the State's argument that defendant's

non-compliance rendered him a poor candidate for reentry into

the PTI program.           Defendant's motion for readmission to PTI

sought       reconsideration     of    the       earlier     order      terminating

defendant's participation in PTI.                Motions for reconsideration

in criminal matters are committed to the sound discretion of the

trial court and are generally intended "to correct a court's

error or oversight."        State v. Puryear, 441 N.J. Super. 280, 294

(App. Div. 2015).

       The    first   judge's    "error     or   oversight"       was   failing    to

determine      both   whether    defendant       willfully    violated     his    PTI

conditions and whether defendant remained a viable candidate for

PTI.     On this record, the second judge's determination defendant

remained a viable candidate for PTI was amply supported.                         As a

result, we conclude that the second judge did not abuse her

discretion.

       The second judge specifically monitored defendant's ability

to remain drug free for approximately three months, learned that

defendant      tested   negative      for    drug    use     on    five    separate

occasions, and concluded defendant remained a viable candidate




                                       14                                  A-4682-14T2
for   PTI.     She   modified     the   PTI   conditions   by   extending      the

duration of the supervisory treatment, imposing new community

service      obligations,   and    requiring     defendant      to   undergo    a

substance abuse evaluation.

      Affirmed.




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