                                NOT FOR PUBLICATION WITHOUT THE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-2106-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAMECA BROWN,

     Defendant-Appellant.
____________________________

                    Argued November 13, 2018 – Decided December 5, 2018

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 16-06-1331.

                    Susan L. Romeo, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Susan L. Romeo, of counsel
                    and on the brief).

                    Shiraz I. Deen, Assistant Prosecutor, argued the cause
                    for respondent (Bradley D. Billhimer, Ocean County
                    Prosecutor, attorney; Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel and on the brief).

PER CURIAM
      After her appeal of the prosecutor's rejection of her application for

admission into the pre-trial intervention program (PTI) was denied by the trial

court, defendant pled guilty to third-degree hindering, N.J.S.A. 2C:29-3(a)(3),

and was sentenced to a one-year probationary term. "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. Roseman, 221 N.J. 611, 621 (2015) (quoting State v.

Nwobu, 139 N.J. 236, 240 (1995)). "[A]cceptance into PTI is dependent upon

an initial recommendation by the Criminal Division Manager and consent of the

prosecutor." Ibid. "The assessment of a defendant's suitability for PTI must be

conducted under the Guidelines for PTI provided in Rule 3:28, along with

consideration of factors listed in N.J.S.A. 2C:43-12(e)." Ibid.

      Challenging her rejection from the program, defendant appeals from the

judgment of conviction entered by the court on December 20, 2017, raising the

following arguments for our consideration:

              POINT I

              THE MATTER SHOULD BE REMANDED FOR
              RECONSIDERATION BY THE PROSECUTOR
              BECAUSE, ALTHOUGH NEITHER THE PTI
              DIRECTOR NOR THE PROSECUTOR EVER
              EXPLICITLY CITED THE STATUTORY OR
              GUIDELINE  FACTORS  PERTAINING TO

                                                                       A-2106-17T1
                                       2
DEFENDANTS CHARGED WITH CRIMES OF
VIOLENCE,      THEY      NEVERTHELESS
EMPHASIZED THE SUPPOSEDLY VIOLENT
NATURE    OF    DEFENDANT'S  CONDUCT
THROUGHOUT THE APPLICATION PROCESS,
AND SHE WAS IMPROPERLY REQUIRED TO
PRESENT COMPELLING REASONS AND TO
ESTABLISH    THAT   DENIAL   OF   HER
APPLICATION WOULD NOT BE ARBITRARY
AND UNREASONABLE.

POINT II

THIS MATTER SHOULD BE REMANDED FOR
RECONSIDERATION BY THE PROSECUTOR
BECAUSE THE ASSESSMENT OF DEFENDANT'S
APPLICATION IGNORED A KEY STATUTORY
FACTOR AND CRITICAL, UNDISPUTED FACTS
THAT MILITATED IN FAVOR OF DIVERTING
DEFENDANT INTO PTI.

POINT III

THIS MATTER SHOULD BE REMANDED FOR
RECONSIDERATION BY THE PROSECUTOR
BECAUSE     IT   WAS     ARBITRARY   AND
IRRATIONAL     TO    REJECT   DEFENDANT'S
APPLICATION     BY    RELYING    ON  THE
INAPPLICABILITY OF ONLY ONE OF THE FIVE
INDEPENDENT PURPOSES OF THE PTI STATUTE,
N.J.S.A. 2C:43-12(A)(3),  PERTAINING  TO
"'VICTIMLESS' OFFENSES," TO EXCLUDE
DEFENDANT FROM THE PROGRAM, RATHER
THAN      EXAMINING       WHETHER    THE
CIRCUMSTANCES HERE FELL WITHIN ANY OF
THE FOUR OTHER LEGISLATIVELY DEFINED
PURPOSES.


                                            A-2106-17T1
                    3
After considering these arguments in light of the record and applicable legal

standards, we affirm.

      The charge underlying this appeal stemmed from defendant's sister,

Shatima Brown, stabbing an individual in the upper left hand side of his chest

during an altercation in the front courtyard area of an apartment complex. After

the stabbing, Shatima handed the knife to defendant, who then left the scene

with the knife. The entire incident was captured on video surveillance. During

the ensuing police investigation, which involved conducting witness interviews

and searching some of the apartments for evidence, defendant denied any

involvement in the stabbing by either herself or her sister. However, after police

viewed the video surveillance, defendant's sister was charged with attempted

murder and related charges, and defendant was charged with hindering.

      In a September 26, 2016 letter, the PTI Director rejected defendant's

application. The Director acknowledged that defendant was "a twenty[-]eight[-

]year[-]old high school graduate who [had] worked as a Certified Home Health

Aide for the past six years," had "four children in [her] custody, and [was]

expecting" a fifth. Further, the Director noted defendant had no prior criminal

history in the Superior Court, and "denied ever using any alcohol or drugs."

However, the Director's rejection was based on N.J.S.A. 2C:43-12(e)(1) (the


                                                                          A-2106-17T1
                                        4
nature of the offense); N.J.S.A. 2C:43-12(e)(2) (the facts of the case); N.J.S.A.

2C:43-12(e)(7) ("[t]he needs and interests of the victim and society"); N.J.S.A.

2C:43-12(e)(14) ("[w]hether or not the crime is of such a nature that the value

of supervisory treatment would be outweighed by the public need for

prosecution"); N.J.S.A. 2C:43-12(e)(15) ("[w]hether or not the applicant's

involvement with other people in the crime charged . . . is such that the interest

of the State would be best served by processing this case through traditional

criminal justice system procedures"); and N.J.S.A. 2C:43-12(e)(16) ("[w]hether

or not the applicant's participation in pretrial intervention will adversely affect

the prosecution of codefendants").

      After acknowledging that "one of the purposes of the program [was] to

provide a mechanism for permitting the least burdensome form of prosecution

possible for defendants charged with 'victimless' offenses" pursuant to N.J.S.A.

2C:43-12(a)(3), the Director explained that:

            This offense [was] by no means victimless. . . .
            [Defendant's] involvement was hindering to law[-
            ]enforcement's ability to immediately apprehend
            Shatima Brown and could have been detrimental to the
            prosecution of the correct suspect. Officers had to
            obtain search warrants for multiple dwellings in order
            to retrieve evidence due to [defendant] removing the
            weapon from the scene of the crime. Accepting
            [defendant] into the pre-trial intervention program
            would depreciate the severity of the crime and could

                                                                           A-2106-17T1
                                        5
             adversely affect the prosecution of co-defendant,
             Shatima Brown. Although [defendant's] involvement
             was not physically assaultive, the harm done to the
             victim must be taken into consideration. Considering
             the potential ramifications of [defendant's] actions and
             the indifference towards the life of another, it is
             apparent that society would most definitely benefit
             from [defendant's] criminal case being channeled
             through the traditional court process. In addition, it
             appears [defendant] ha[s] a pending municipal court
             case charging [her] with [h]arassment and there is an
             outstanding warrant for [her] arrest . . . for failure to
             appear. Not only do these charges display a tendency
             towards an indifference towards the use of violence,
             they also demonstrate a lack of compliance with court
             orders, rendering [defendant] to be an unfit candidate
             for the pre-trial intervention program.

      In an October 20, 2016 letter, the prosecutor also rejected defendant's PTI

application. Specifically, the prosecutor "agree[d] with and adopt[ed] the . . .

reasons contained in the PTI Director's letter of rejection." The prosecutor

added that

             although the defendant [was] not charged with a violent
             crime per se, she covered up a very violent crime
             committed by her sister. To permit someone into PTI
             under these facts would make a mockery out of . . .
             supervisory treatment as contemplated in State v.
             Leonardis, 71 N.J. 85 (1976).

      Defendant appealed the denial to the trial court.          In a supporting

certification, defense counsel stated that Shatima Brown's guilty plea to

aggravated assault on July 10, 2017, constituted a "change of circumstances"

                                                                         A-2106-17T1
                                        6
warranting "reconsideration of [defendant's] PTI rejection." Defense counsel

also submitted a character letter written by a Lakewood police officer who was

also the grandfather of one of defendant's children. In response, the State

acknowledged considering the character letter as well as the other mitigating

factors, including defendant's attempts to further her education. However, the

State asserted that even absent N.J.S.A. 2C:43-12(e)(15), and N.J.S.A. 2C:43-

12(e)(16), the other four factors on which the rejection was based still fully

supported the decision to reject defendant's application and outweighed the

mitigating factors.

      Following oral argument, on October 4, 2017, the trial court denied

defendant's appeal, concluding that defendant failed to establish "by clear and

convincing evidence" that the prosecutor's rejection amounted to "a patent and

gross abuse of discretion."    In rejecting defendant's contention that "the

[p]rosecutor's decision . . . was not based on the appropriate factors or the

appropriate weighing of those factors," the court determined that "the State did

consider and weigh . . . all the relevant factors." The court explained that the

prosecutor considered

            not only the factors that were weighed against the
            defendant's admission into the program, but also those
            factors that weighed in favor of the defendant's
            admission and those factors included the defendant's

                                                                        A-2106-17T1
                                       7
            age, the fact that the crime as alleged was not assaultive
            in nature, the defendant's lack of a prior record, lack of
            history of known violence[,] and lack of involvement
            with organized crimes.

                    . . . [T]he State specifically noted that while [it
            was] commendable that this defendant wants to further
            her education, has family that she needs to support and
            additional family members that support her and have
            provided . . . a character letter to show this, that this
            does not mitigate the fact that this defendant was
            involved in a very dangerous activity, regardless of the
            fact she did not cause direct harm[,] but that she was
            instrumental in helping to advance a violent crime. And
            the State paid particular attention to the video . . . that
            . . . depicted . . . the defendant show[ing] indifference
            to the injured victim by . . . concealing the weapon and
            then leaving the scene with it.

The court entered a memorializing order and this appeal followed.

      Deciding whether to permit a defendant to divert to PTI "is a

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

(1996), for which a prosecutor is given "broad discretion," State v. K.S., 220

N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list of

seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to

"make an individualized assessment of the defendant considering his or her

amenability to correction and potential responsiveness to rehabilitation. "

Roseman, 221 N.J. at 621-22 (internal quotation marks omitted). "These factors

include 'the details of the case, defendant's motives, age, past criminal record,

                                                                          A-2106-17T1
                                        8
standing in the community, and employment performance[.]'"            Id. at 621

(alteration in original) (quoting Watkins v. Watkins, 193 N.J. 507, 520 (2008)).

The Supreme Court's Guidelines accompanying Rule 3:28 work in harmony with

the seventeen individual factors listed in N.J.S.A. 2C:43-12(e).1

       That said, the scope of our review of a PTI rejection is severely limited

and designed to address "only 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)).        "In order to overturn a prosecutor's

rejection, a defendant must 'clearly and convincingly establish that the

prosecutor's decision constitutes a patent and gross abuse of discretion,'"

meaning that the decision "has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial

intervention." Watkins, 193 N.J. at 520 (first quoting State v. Watkins, 390 N.J.

Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J. at 582-

83).

       An abuse of discretion has occurred where it can be proven "that the [PTI]

denial '(a) was not premised upon a consideration of all relevant factors, (b) was


1
   N.J.S.A. 2C:43-12 was amended in 2015. As amended, the eligibility
requirements were expanded to allow defendants who plead guilty to certain
violent crimes to be admitted to the program. N.J.S.A. 2C:43-12(g)(3).
                                                                          A-2106-17T1
                                        9
based upon a consideration of irrelevant or inappropriate factors, or (c)

amounted to a clear error in judgment. '" State v. Lee, 437 N.J. Super. 555, 563

(App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "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." Roseman, 221 N.J. at 625 (quoting

Bender, 80 N.J. at 93). "The extreme deference which a prosecutor's decision is

entitled to in this context translates into a heavy burden which must be borne by

a defendant when seeking to overcome a prosecutorial veto of his [or her]

admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993).

      Applying these principles, we discern no patent or gross abuse of

discretion in the prosecutor's denial of defendant's PTI application. Thus, there

is no basis to disturb the trial court's decision sustaining the prosecutor's denial ,

a decision we review de novo. See State v. Denman, 449 N.J. Super. 369, 375-

76 (App. Div. 2017). We reject defendant's argument that she "never received

the required individualized assessment of her amenability to correction and

rehabilitation." Although defendant certainly had a number of mitigating factors

in her favor, all of which were considered by the prosecutor, the reasons for the




                                                                              A-2106-17T1
                                        10
prosecutor's denial were premised on consideration of relevant factors, several

of which weighed against her admission.

      We also reject defendant's contention that her "hindering conduct was

improperly treated as though she had committed a violent crime." The record

clearly refutes such a contention. Equally unavailing is defendant's assertion

that the prosecutor "arbitrarily and irrationally relied on the inapplicability of

only one of the five alternate purposes of the PTI statute to reject [her]

application." "Absent evidence to the contrary, it is [to be] presumed that the

prosecutor considered all relevant factors before rendering a decision." State v.

Dalglish, 86 N.J. 503, 509 (1981).      Like the trial court, we conclude that

defendant failed to clearly and convincingly establish that the prosecutor's

decision went so wide of the mark sought to be accomplished by PTI that

fundamental fairness and justice require judicial intervention.

      Affirmed.




                                                                          A-2106-17T1
                                       11
