                                NOT FOR PUBLICATION WITHOUT THE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-5266-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHARDAI L. SANTOS,

     Defendant-Appellant.
_____________________________

                    Submitted December 5, 2019 – Decided December 20, 2019

                    Before Judges Suter and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 16-12-3331.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michael Timothy Denny, Assistant Deputy
                    Public Defender, of counsel and on the briefs).

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Linda Anne Shashoua, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Shardai L. Santos appeals from the July 18, 2017 judgment of

conviction of third-degree witness tampering, N.J.S.A. 2C:28-5(a)(2), and the

sentence imposed by the Law Division. We affirm.

                                       I.

      The following facts are derived from the record.      On June 11, 2016,

defendant posted digital images of confidential police reports on a social media

site available for public viewing. The reports identified by name a cooperating

witness in an ongoing homicide investigation. Defendant labeled the witness ,

her former boyfriend, a "snitch."    The reports also contained the witness's

birthdate and address, and a summary of the statement he gave to police

implicating someone in the homicide. Defendant sent the witness a text stating

she posted his identifying information because he was not to be trusted and she

wanted those with whom he associated to be aware that he "could possibl y tell

on" them.

      A grand jury indicted defendant, charging her with: (1) third-degree

witness tampering, N.J.S.A. 2C:28-5(a)(2); and (2) third-degree terroristic

threats, N.J.S.A. 2C:12-3(a).

      Defendant applied for admission into the pretrial intervention program

(PTI). On March 8, 2017, a Senior Probation Officer (SPO), acting on behalf of


                                                                        A-5266-17T4
                                       2
the PTI program director, issued a written statement declining to recommend

defendant's admission to PTI. The statement noted because defendant was

charged with making a threat of violence, pursuant to Guideline 3(i)(3), she

would ordinarily be denied admission into PTI in the absence of compelling

facts supporting admission. 1 The SPO then discussed the factors set forth in

N.J.S.A. 2C:43-12(e) to be considered when reviewing an application for

admission to PTI. After acknowledging defendant's young age and lack of

serious criminal record, the SPO determined the serious nature of the charges,

the interests of the public in protecting the identity of cooperating witnesses in

homicide investigations, the interests of the victim, and the potential

consequences of revealing the identity and address of a cooperating witness

militated against granting defendant's application. The SPO concluded

            [t]o allow this defendant into the PTI program
            diminishes the seriousness of the act and in essence
            conveys to the public that threats to witnesses will not
            only be tolerated but given minimal consequences.
            This type of message will thwart cooperative efforts
            with law enforcement.


1
   At all times relevant to this appeal, N.J.S.A. 2C:43-12 and 2C:43-13 and the
parallel provisions of Rule 3:28 and its related Guidelines governed the
administration of PTI. The rule was repealed and replaced with Rule 3:28-1 to
-10, effective July 1, 2018, and the Guidelines were eliminated. See State v.
Johnson, 238 N.J. 119, 128 (2019). We apply the Rule and Guidelines in effect
at the time of defendant's application.
                                                                          A-5266-17T4
                                        3
                  ....

            Please be advised that you have ten (10) days from
            receipt of this letter to appeal the decision of the
            program.

Defendant did not appeal the SPO's denial of her PTI application.

      On April 10, 2017, defendant entered a guilty plea to third-degree witness

tampering. Pursuant to a negotiated plea agreement, in exchange for defendant's

plea, the State agreed to dismiss the remaining count of the indictment and

recommend a five-year term of noncustodial probation. At the plea allocution,

defendant admitted she posted the information in an effort to keep the witness

from testifying and to otherwise thwart his cooperation in the homicide

investigation.

      Prior to sentencing, defendant moved to vacate her guilty plea. She argued

she had a meritorious defense to the charges because she had proof the victim

hacked her social media account and posted the digital images to frame

defendant. The trial court denied defendant's motion, finding she produced no

evidence demonstrating a meritorious defense, and questioning the plausibility

of the victim voluntarily publicly identifying himself as a cooperating witness

in a homicide investigation and posting his personal identifying information.




                                                                        A-5266-17T4
                                       4
      At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-

1(a)(3), a risk defendant will commit another offense; and nine, N.J.S.A. 2C:44-

1(a)(9), the need to deter defendant and others from violating the law. The court

found mitigating factors seven, N.J.S.A. 2C:44-1(b)(7), defendant led a law-

abiding life for a substantial period of time before committing the offense; nine,

N.J.S.A. 2C:44-1(b)(9), defendant's character and attitude indicate she is

unlikely to commit another offense; and ten, N.J.S.A. 2C:44-1(b)(10), defendant

is particularly likely to respond to probationary treatment. The court determined

the aggravating factors outweighed the mitigating factors and imposed a five-

year noncustodial term of probation.

      This appeal followed. Defendant makes the following arguments for our

consideration:

            POINT I

            THE   PTI    APPLICATION SHOULD BE
            RECONSIDERED BECAUSE THE CAMDEN
            COUNTY     PROSECUTOR     GAVE  NO
            CONSIDERATION WHATSOEVER TO THE
            APPLICATION.

            A.  OUR LAW REQUIRES THE PROSECUTOR
            TO EVALUATE A PTI APPLICATION BASED ON
            AN INDIVIDUALIZED ASSESSMENT OF THE
            APPLICANT'S       AMENABILITY       TO
            REHABILITATION, AND TO FOLLOW THE
            PRESCRIBED PROCEDURES THAT ENSURE

                                                                          A-5266-17T4
                                        5
            BOTH MEANINGFUL CONSIDERATION OF
            APPLICANTS AND MEANINGFUL APPELLATE
            REVIEW.

            B.  THE PROSECUTOR'S FAILURE TO PROVIDE
            A STATEMENT OF REASONS FOR REJECTING
            MS. SANTOS IS PALPABLY DEFICIENT AS IT
            FAILS TO PROVIDE ANY REASONS – LET ALONE
            VALID ONES – FOR WITHHOLDING CONSENT
            TO ENTER PTI.

            POINT II

            THE FIVE-YEAR PROBATIONARY SENTENCE
            WAS MANIFESTLY EXCESSIVE, REQUIRING A
            REMAND FOR RESENTENCING.

                                        II.

      The criteria for admission to PTI, as well as the procedures concerning

applications for admission to the program, are set forth in N.J.S.A. 2C:43-12 to

-22 and, at the time of defendant's application, Rule 3:28 (repealed July 1, 2018).

Admission to PTI is conditioned on "the consent of the prosecutor and upon

written recommendation of the program director . . . ." N.J.S.A. 2C:43-12(e).

            If the applicant desires to challenge the decision of a
            program director not to recommend, or a prosecutor not
            to consent to, enrollment into a supervisory treatment
            program, a motion shall be filed before the designated
            judge (or assignment judge) authorized pursuant to the
            Rules of Court to enter such orders.

            [N.J.S.A. 2C:43-12(f) (emphasis added).]


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                                        6
      According to Rule 3:28(h) (repealed July 1, 2018),

            [a]n appeal by the defendant shall be made on motion
            to the Presiding Judge of the Criminal Division or to
            the judge to whom the case has been assigned within
            ten days after the rejection . . . .

The Rule "contemplates an appeal to the Law Division following the rejection

of a PTI application by the Criminal Division Manager [or his or her designee]

or the Prosecutor." State v. Moraes-Pena, 386 N.J. Super. 569, 577 (App. Div.

2006); see also Guideline 8 (repealed July 1, 2018) ("If a defendant desires to

challenge the decision of a criminal division manager not to recommend

enrollment . . . into a PTI program, a motion must be filed before the designated

judge . . . authorized to enter orders under R. 3:28.") After a conviction, a trial

court decision upholding the denial of admission to PTI may be reviewed by this

court. R. 3:28(g) (repealed July 1, 2018); State v. Waters, 439 N.J. Super. 215,

223 (App. Div. 2015).

      There is, however, no legal support for defendant's argument that she may

challenge before this court the SPO's decision not to recommend her admission

into PTI without first appealing that decision to the trial court. Defendant had

the opportunity to raise any perceived flaws in the SPO's decision in a motion

to the trial court, which had the authority to admit defendant to PTI over the

prosecutor's objection. Defendant instead elected to enter a guilty plea pursuant

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                                        7
to a negotiated plea agreement. Having failed to seek review by the trial court

of the denial of her application for admission to PTI, defendant may not raise

the issue for the first time before this court.

      We also reject defendant's argument that her sentence is excessive. We

review sentencing determinations for abuse of discretion. State v. Robinson,

217 N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). The

sentencing court must "undertake[] an examination and weighing of the

aggravating and mitigating factors listed in [N.J.S.A.] 2C:44-1(a) and (b)."

Roth, 95 N.J. at 359; State v. Kruse, 105 N.J. 354, 359 (1987). Furthermore,

"[e]ach factor found by the trial court to be relevant must be supported by

'competent, reasonably credible evidence'" in the record. State v. Fuentes, 217

N.J. 57, 72 (2014) (quoting Roth, 95 N.J. at 363).

      We accord deference to the sentencing court's determination. Id. at 70

(citing State v. O'Donnell, 117 N.J. 210, 215 (1989)).         We must affirm

defendant's sentence unless

             (1) the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."


                                                                        A-5266-17T4
                                          8
            [Ibid. (quoting Roth, 95 N.J. at 364-65).]

      We are satisfied the judge's findings and balancing of the aggravating and

mitigating factors are supported by adequate evidence in the record, and the

sentence is neither inconsistent with sentencing provisions of the Code of

Criminal Justice nor shocking to the judicial conscience. See Ibid.; State v.

Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81

(2009). Five years of noncustodial probation is consistent with the gravity of

defendant's criminal conduct. As the trial court noted, defendant's actions put

the witness in danger and undermined the efforts of law enforcement to

encourage cooperation from the community in the investigation and prosecution

of serious criminal activity.

      Affirmed.




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