                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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 th e
     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-0560-19T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

ROBERT T. DAKAKE,

     Defendant-Respondent.
_________________________

                    Argued telephonically April 1, 2020 —
                    Decided April 30, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No 19-05-1216.

                    Frank J. Ducoat, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for appellant (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Frank J. Ducoat, of
                    counsel and on the briefs).

                    Alissa D. Hascup argued the cause for respondent
                    (Alissa D. Hascup, attorney; Jeff Edward Thakker, of
                    counsel; Alissa D. Hascup, on the brief).
PER CURIAM

      The State appeals from a September 26, 2019 order admitting defendant

into the Essex County pretrial intervention program (PTI). We affirm.

      In 2019, defendant was arrested, charged, and indicted for third-degree

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

and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-

5(b)(13), after Cedar Grove police were alerted to a shipment of illegal narcotics

destined for an Andrew Picarelli at a UPS store. Police confirmed the UPS

postal box was registered to Picarelli, who was employed at Gold's Gym in

Totowa. They opened the package and confirmed it contained illegal anabolic

steroids and testosterone in powder form, packaged in clear plastic bags and

packed within two black plastic bags marked creatine monohydrate. Police

photographed the narcotics before repackaging and placing them back into the

postal box.

      The next day UPS notified Picarelli the package arrived and police

observed defendant enter the UPS store, open Picarelli's box, retrieve the

package receipt, and hand it to the store's owner who then gave defendant the

package. Police confronted defendant, ordered him to surrender the package,




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and he complied. When asked if he knew why police stopped him, defendant

volunteered it was because of illegal steroids in the package.

      A search incident to defendant's arrest revealed $5100 in cash, which was

seized as suspected narcotics proceeds. Police Mirandized defendant, who

agreed to answer questions. He then admitted he placed the order for the steroids

and testosterone and was selling the substances for profit. He stated the cash

was from his disability income and savings, not the sale of steroids.

      In May 2019, the Essex County Probation Department recommended

defendant's admission into PTI.        However, the prosecutor rejected the

application in a June 2019 letter setting forth her reasoning. Nearly a month

later, defense counsel requested the State reconsider and appealed the denial to

the Law Division.

      The facts presented to the judge revealed defendant was forty-six years

old with no prior criminal history. Defendant dropped out of high school in

eleventh grade to work for his father's business and then obtained a GED. He

maintained full-time employment as a unionized iron worker, working towards

becoming a journeyman's book. Defendant paid alimony and child support to

his wife and two children from a prior marriage.




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                                       3
      Defendant began using anabolic steroids in 2007. He was diagnosed with

multiple mental health disorders, including severe substance abuse disorder,

body dysmorphia, post-traumatic stress disorder, obsessive-compulsive

disorder, and generalized anxiety. In 2017, the steroid use caused him to suffer

an aortic aneurysm, which required an emergent cardiac procedure. In 2018,

defendant had shoulder surgery, was unable to return to work, and received

disability benefits. He then began purchasing powdered steroids online from an

overseas source, which he sold to another individual, who would pay him in the

form of money and injectable steroids for defendant's own use.

      Defendant also revealed he commenced psychological therapy less than

two weeks after his arrest to address his mental health and addiction issues and

was making progress. The evidence, which included a report from his treating

therapist, explained he suffered emotional and physical abuse by his father

during his childhood and turned to bodybuilding as a means of gaining his

father's approval, and the bodybuilding led to the steroid abuse, body

dysmorphia, the need for surgeries, and subsequent cycle of addiction.

      Pursuant to these facts, the prosecutor's PTI rejection letter concluded

N.J.S.A. 2C:43-12(e) factors one, two, seven, fourteen, and seventeen




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                                       4
outweighed factors three, nine, thirteen, and sixteen, which favored defendant's

admission to PTI.1 The prosecutor concluded as follows:


1. The N.J.S.A. 2C:43-12(e)factors are as follows:

            (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;

            (6) The likelihood that the applicant's crime is related
            to a condition or situation that would be conducive to
            change through his participation in supervisory
            treatment;

            (7) The needs and interests of the victim and society;

            (8) The extent to which the applicant's crime constitutes
            part of a continuing pattern of anti-social behavior;

            (9) The applicant's record of criminal and penal
            violations and the extent to which he may present a
            substantial danger to others;


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                                         5
Despite some limited positive factors, PTI is not the
appropriate remedy where the judgment of conviction
is for this serious drug offense.


(10) Whether or not the crime is of an assaultive or
violent nature, whether in the criminal act itself or in
the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would
exacerbate the social problem that led to the applicant’s
criminal act;

(12) The history of the use of physical violence toward
others;

(13) Any involvement of the applicant with organized
crime;

(14) Whether or not the crime 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 system procedures;

(16) Whether or not the applicant's participation in
pretrial intervention will adversely affect the
prosecution of codefendants; and

(17) Whether or not the harm done to society by
abandoning criminal prosecution would outweigh the
benefits to society from channeling an offender into a
supervisory treatment program.


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                           6
                   Be assured that the State has already considered
            defendant's age, employment history, family
            obligations, and absence of any prior criminal
            history. . . . [D]efendant does possess some positive
            qualities, including, primarily the absence of any prior
            criminal record of any kind. Nonetheless, these
            admirable qualities did not prevent him from diving
            head first into illegal narcotics possession and
            distribution.

On defendant's appeal to the Law Division, the prosecutor noted defendant

withheld information from the probation department in the initial PTI

application related to his physical maladies and addiction to steroids, and argued

his purpose was to deflect responsibility for his actions.

      Judge Arthur J. Batista heard the appeal and issued a comprehensive

thirteen-page written decision overruling the denial of PTI. He concluded the

State's decision was clear error, did not consider the applicable factors, and

deviated from the purpose of PTI.

      The judge found additional factors applied, namely, five, six, eight, and

twelve, which favored PTI.      He concluded factor five applied because the

supervisory treatment offered by PTI, as opposed to a criminal prosecution,

would benefit defendant in addressing his addiction, mental health and physical

disorders, and employment issues.      He found factor six applicable because

defendant made progress in treatment. He concluded factors eight and twelve


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                                        7
were applicable because defendant had no criminal history and committed a non-

violent offense.

      The judge also found the State clearly misapplied mitigating factor three

because it did not consider defendant's motives, which were to support a twenty-

year addiction to anabolic steroids, caused by mental and physical health issues,

which left him struggling to meet his financial obligations. The judge rejected

the State's rationale that defendant withheld his history of trauma and addiction

to "shirk responsibility." To the contrary, the judge explained

            [d]efendant in this case supplied information to the
            prosecutor that would allow them to consider what the
            statute asks the prosecutor to consider when reviewing
            a PTI application. To then use this information against
            the [d]efendant to claim that he is not accepting
            responsibility or trying to avoid blame for his action is
            contrary to the purposes and functions of the PTI
            program.

      On this appeal, the State raises the following points:

            POINT I

            THE JUDGE BELOW SUBSTITUTED HIS
            JUDGMENT FOR THE PROSECUTOR'S WHEN HE
            ADMITTED DEFENDANT INTO THE PTI
            PROGRAM OVER THE STATE'S OBJECTION.

                   A.   PTI & Standard of Review.




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                                        8
                   B.   The Prosecutor's Thorough Consideration,
                   And Ultimate Rejection, Of Defendant's PTI
                   Application.

                         i.    The first rejection letter.

                         ii.   The second rejection letter.

                   C.   The Law Division's Decision Admitting
                   Defendant Into PTI.

                   D.    The Judge Overstepped His Bounds And
                   Substituted His Judgment For The Prosecutor's
                   When He Admitted Defendant Into The PTI
                   Program Over Her Objection.

      The decision to admit a defendant to PTI is a "'quintessentially

prosecutorial function.'" State v. Roseman, 221 N.J. 611, 624 (2015) (quoting

State v. Wallace, 146 N.J. 576, 582 (1996)). Thus, the scope of judicial review

of a prosecutor's determination is severely limited. State v. Nwobu, 139 N.J.

236, 246 (1995); State v. Hermann, 80 N.J. 122, 127-28 (1979). Prosecutors

have wide latitude in deciding whom to divert into the PTI program and whom

to prosecute. Nwobu, 139 N.J. at 246. "Reviewing courts must accord the

prosecutor 'extreme deference.'" State v. Waters, 439 N.J. Super. 215, 225-26

(App. Div. 2015) (quoting Nwobu, 139 N.J. at 246). "We must apply the same

standard as the trial court. Therefore, we review the [trial court's ruling] of the

prosecutor's decision de novo." Id. at 226.


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                                        9
         A reviewing court may order a defendant into PTI over a prosecutor's

objection only if the defendant "'clearly and convincingly establish[es] that the

prosecutor's refusal to sanction admission into the program was based on a

patent and gross abuse of . . . discretion . . . .'" Wallace, 146 N.J. at 582 (second

alteration in original) (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)). An

abuse of discretion is "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." Wallace, 146 N.J. at 583 (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 [PTI]." Bender, 80 N.J.

at 93.

         Having reviewed the record and considered the State's arguments, we

affirm for the reasons expressed in Judge Batista's opinion. Defendant presented

circumstances, which clearly warranted admission to PTI on these third-degree

charges.     The information defendant allegedly withheld only supported his

admission to PTI and the State's argument to the contrary is unpersuasive. We




                                                                             A-0560-19T4
                                        10
agree with the judge's conclusion the decision to prosecute in this case met the

"clear error in judgment" standard and ignored the purpose of PTI.

      Affirmed.




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