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                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4381-17T1

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

BRANDON J. GILL,

   Defendant-Respondent.
——————————————

                    Argued January 16, 2019 – Decided January 31, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 14-07-
                    0807.

                    Patrick F. Galdieri, II, Assistant Prosecutor, argued the
                    cause for appellant (Andrew C. Carey, Middlesex
                    County Prosecutor, attorney; Patrick F. Galdieri, II, of
                    counsel and on the brief).

                    David R. Oakley argued the cause for respondent
                    (Anderl & Oakley, PC, attorneys; David R. Oakley, of
                    counsel and on the brief).

PER CURIAM
      The State appeals from a May 18, 2018 order granting defendant Brandon

Gill admission to pretrial intervention (PTI) over its objection. We affirm.

      We have previously recounted the underlying facts in detail. State v. Gill,

No. A-0611-15 (App. Div. Sept. 8, 2017) (slip op. at 1-8). However, we briefly

summarize some of the background pertinent to this appeal. Defendant was a

twenty-five year old, gainfully employed, Florida resident, and a veteran,

currently serving in the United States Army Reserve. On the afternoon of April

25, 2014, defendant was asleep in his vehicle in the parking lot of a Target in

South Brunswick. Defendant had driven from Florida the day before to meet his

online girlfriend in New York City. He arrived at 3:00 a.m., after driving the

entire day, and left the city at 5:00 a.m. to return to Florida. Police responded

to the scene because there was a report the vehicle had been in the lot for eight

hours with its engine running.

      Officers asked defendant for his credentials, which he produced. They

noticed defendant had become increasingly nervous during the questioning.

They requested he step out of the car and asked whether he had any weapons in

his possession. Without hesitation, defendant informed them he had a handgun

in his glove compartment, an extra loaded magazine, a collapsible baton, and a

knife, all of which officers recovered from his vehicle.      The gun and the

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                                       2
magazine contained hollow-point bullets. Defendant was subsequently arrested

and indicted for second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b), and fourth-degree possession of hollow-point bullets, N.J.S.A.

2C:39-3(f).

      Defendant applied for admission to PTI. It is undisputed he had no

criminal history, mental illness, or history of alcohol or drug abuse. The record

reveals he was family-oriented. During his PTI interview, defendant informed

the Criminal Division Manager (CDM) that he was unaware of New Jersey gun

laws, and that the manner in which he possessed the gun was legal in Florida.

He stated he would be separated from the military, and likely lose his

employment, if the New Jersey charges were prosecuted.

      Notwithstanding, the CDM recommended defendant not be admitted to

PTI, and concluded defendant's offenses were "based on complete lack of fore-

thought and ignorance" of New Jersey laws. The CDM found admission to PTI

was inappropriate because defendant was charged with a second-degree crime

and there was no causal connection between the crimes charged and the need for

rehabilitation through PTI.

      As a result, the prosecutor declined to consent to defendant's admission

into PTI. Defendant appealed from the denial. Following oral argument, the


                                                                         A-4381-17T1
                                       3
trial court remanded the matter to the prosecutor for further consideration. After

the prosecutor filed a second letter rejecting defendant's admission to PTI , a

second hearing occurred and the trial court ordered defendant's admission into

PTI over the State's objection. The trial court denied the State's motion for

reconsideration, and on appeal we reversed and remanded for the State to further

consider defendant's PTI application. Gill, slip op. at 22.

      Pursuant to our instructions, the prosecutor issued a letter and again

explained why the State would not consent to defendant's admission into PTI.

Defendant appealed, and following oral argument, Judge Joseph Paone rendered

a detailed oral opinion and entered an order compelling defendant's admission

into PTI.

      The judge painstakingly addressed and analyzed every argument raised by

the State. He made detailed findings of fact and conclusions of law under the

guidelines for PTI set forth in Rule 3:28 and N.J.S.A. 2C:43-12(e). The judge

explained the State had failed to address how the information favorable to

defendant weighed into its analysis of the PTI admission factors. Judge Paone

further concluded the goals of PTI would be subverted by denying defendant's

admission into the program because

            in this case PTI would, in conformance with the
            guidelines, provide an alternative to prosecution for

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                                        4
            applicants who might be harmed by the imposition of
            criminal sanctions as presently administered when such
            an alternative can be expected to serve as sufficient
            sanction to deter criminal conduct. PTI would provide
            a mechanism for permitting the least burdensome form
            of prosecution possible for defendants charged with
            victimless offenses, provide assistance to criminal
            calendars in order to focus expenditures of criminal
            justice resources on matters involving serious
            criminality and severe correctional problems, and
            provide deterrence of future criminal or disorderly
            behavior by an applicant in a program of supervisory
            treatment.

                  Frankly, in view of the [Graves Act
            Clarification1], this is the rare case involving
            extraordinary and compelling circumstances that falls
            outside the heartland of the legislative policy to deter
            unauthorized gun possession. This [c]ourt therefore
            concludes that the State's reliance on the nature of the
            case, to the exclusion of a proper individualized
            analysis and consideration of the PTI factors uniquely
            related to this case, clearly subverts the goals
            underlying PTI and therefore constitutes a clear error in
            judgment which invariably constitutes a patent and
            gross abuse of discretion.

The judge's order was stayed and this appeal followed.

      The State argues the following point:

            POINT I – BECAUSE DEFENDANT DID NOT
            ESTABLISH BY CLEAR AND CONVINCING
            EVIDENCE THAT THE DECISION BY THE STATE

1
        The        2014       Clarification       is       available            at
http://www.nj.gov/oag/dcj/agguide/directives/Graves-Act-clarification-
2014.pdf (Sept. 24, 2014).
                                                                         A-4381-17T1
                                       5
            TO REJECT HIS PTI APPLICATION WAS A
            PATENT AND GROSS ABUSE OF DISCRETION,
            THE TRIAL COURT ERRED IN ORDERING HIS
            ADMISSION INTO PTI OVER THE STATE'S
            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.

      "Judicial review serves to check 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)). 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


                                                                           A-4381-17T1
                                        6
into the program was based on a patent and gross abuse of . . . discretion[.]"

Wallace, 146 N.J. at 582 (alteration in original) (quoting Leonardis, 73 N.J. at

382); see also State v. Benjamin, 228 N.J. 358, 374 (2017) ("[A] defendant may

obtain a hearing to review the prosecutor's decision only after he or she has

demonstrated in a motion that the prosecutor abused his or her discretion.").

      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

(emphasis added) (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. Absent evidence to the

contrary, a reviewing court must assume the prosecutor considered all relevant

factors in reaching its decision. State v. Dalglish, 86 N.J. 503, 509 (1981) (citing

Bender, 80 N.J. at 94).

      Having reviewed the record and considered the argument raised by the

State, we affirm for the reasons expressed in Judge Paone's thorough opinion.

Defendant presented circumstances to overcome the presumption against PTI


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                                         7
for individuals charged with second-degree offenses. The factors set forth in

the Graves Act Clarification clearly favored defendant. We agree with the

judge's conclusion that this case falls within the narrow band of cases, which

meet the "clear error in judgment" standard.

      Affirmed.




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