                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                       State v. William Roseman and Lori Lewin (A-105/106-13) (073674)

Argued March 2, 2015 -- Decided June 18, 2015

SOLOMON, J., writing for a unanimous Court.

         In this appeal, the Court considers whether denial of defendants’ applications to Pretrial Intervention (PTI)
by the prosecutor was a patent and gross abuse of discretion.

          Defendants William Roseman and Lori Lewin were married from 1992 until 2000, during which time
Roseman was the Mayor of Carlstadt. As his wife, Lewin was entitled to, and received, benefits under Carlstadt’s
plan of health, prescription and dental insurance (Carlstadt’s plan). After their divorce, each was responsible for
their own health insurance pursuant to the divorce decree; Roseman and the son of the marriage would remain on
Carlstadt’s plan and Lewin was to be provided health insurance coverage through her employer. Roseman notified a
Carlstadt payroll clerk, who also served as the Assistant to the Insurance Officer, of the divorce. At the direction of
the clerk, Roseman changed his W-4 tax form to reflect that he was no longer married, but the clerk failed to remove
Lewin’s name from Carlstadt’s plan. As a result, following the divorce, Lewin remained on Carlstadt’s plan, in
addition to her own employer-provided health insurance plan.

         In late 2007, while transitioning to a new dental plan, Roseman discovered that Lewin was listed as an
insured under Carlstadt’s plan after the divorce. Roseman promptly reported this error to the town council, had
Lewin removed from the plan, and initiated an internal audit of policy holders to detect other inaccuracies. The
audit revealed that three former wives of city employees and five over-age children, were also improperly listed as
insureds under Carlstadt’s plan. Lewin resubmitted to her employer’s health insurance carrier all of her medical,
prescription and dental claims that had been paid by Carlstadt’s insurance providers after the divorce. As a result,
Carlstadt’s insurance providers were repaid by Lewin’s insurance plan for all re-submitted claims that were not
time-barred, and Lewin made direct restitution to Carlstadt’s insurance providers for the time-barred claims.

          In July 2009, Roseman and Lewin were indicted on one count each of third-degree conspiracy, third-degree
theft by deception, and second-degree official misconduct. Even though other individuals also were eligible to
improperly receive benefits under Carlstadt’s plan, Roseman and Lewin were the only individuals prosecuted.
Roseman and Lewin rejected a plea offer and applied for admission into PTI. Initially, Roseman was rejected for
PTI, but after he informed the prosecutor that he would agree to resign and be subject to a lifetime disqualification
from office in exchange for PTI, approval of the agreement was sought and obtained by the prosecutor from the
Attorney General’s office. The prosecutor also expressed his willingness to dismiss the indictment against Lewin if
Roseman was admitted into PTI under those conditions. Subsequently, defendants reconsidered and rejected the
conditioned PTI offer, and Roseman filed a motion to dismiss the indictment.

           The trial court dismissed the official misconduct charges, but refused to dismiss the remaining charges.
The State was granted leave to file an interlocutory appeal. The Appellate Division reversed the trial judge and
reinstated the official misconduct counts of the indictment. Defendants efforts to resolve the matter failed because
Roseman refused to resign and agree never to pursue public office in the future as conditions to any agreement. As
a result, the prosecutor rejected in writing both defendants’ PTI applications, citing the presumption against PTI for
second-degree offenses under the Guidelines for PTI provided in Rule 3:28 and eleven of the seventeen factors listed
in N.J.S.A. 2C:43-12(e), including the “nature of the offense,” the “facts of the case,” the “likelihood that the
applicant’s crime is related to a condition or situation that would be conducive to change” through PTI, and
“[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.”

         The trial judge, over the objection of the prosecutor, ordered that Roseman and Lewin be admitted into PTI

                                                          1
without conditions, finding that the prosecutor’s decision to deny PTI was a patent and gross abuse of discretion.
The State appealed. In an unpublished opinion, the Appellate Division reversed. The panel found that Roseman had
failed to establish by clear and convincing evidence that the prosecutor patently and grossly abused his discretion.
As to Lewin, the panel remanded the matter for an individualized assessment. The Supreme Court granted
defendants’ petitions for certification. 218 N.J. 274 (2014).

HELD: Defendants have demonstrated extraordinary circumstances to overcome the presumption against Pretrial
Intervention (PTI) for second-degree offenses and there is no factual justification for the application of the factors
set forth by the prosecutor under N.J.S.A. 2C:43-12(e). Denial of defendants’ applications to Pretrial Intervention
(PTI) by the prosecutor was plainly a patent and gross abuse of discretion.

1. 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). Additionally, a PTI determination
requires that the prosecutor make an individualized assessment of the defendant considering his or her “‘amenability
to correction’ and potential ‘responsiveness to rehabilitation.’” State v. Watkins, 193 N.J. 507, 520 (2008) (quoting
N.J.S.A. 2C:43-12(b)). N.J.S.A. 2C:43-12(b) and Guideline 3(i) specify a presumption against PTI for any first- or
second-degree crime and any crime that is a breach of the public trust. Regardless of the statutory presumptions, a
criminal defendant can show that PTI is nonetheless warranted through “facts or materials demonstrating the
defendant’s amenability to the rehabilitation process.” Pressler & Verneiro, Current N.J. Court Rules, Guideline 2
on R. 3:28, at 1167. Presumptions against PTI reflect an assumption that certain defendants “have committed
crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are
presumptively unavailable.” Watkins, supra, 193 N.J. at 523. Accordingly, this Court has stated that overcoming
these presumptions requires showing “something extraordinary or unusual” about the defendant’s background. State
v. Nwobu, 139 N.J. 236, 252-253 (1995). (pp. 9-12)

2. To overcome the “presumption of incarceration for first- and second-degree offenders,” there must be “‘truly
extraordinary and unanticipated circumstances’ when the sentencing court finds that a ‘serious injustice’ exists.”
Nwobu, supra, 139 N.J. at 252. In Nwobu, the Court made clear that this is a fact-sensitive analysis that requires
consideration of “idiosyncratic” circumstances demonstrating that denial of PTI has resulted in a “serious injustice.”
Id. at 252. Even if “extraordinary and unusual” circumstances exist to overcome the presumption against admission
into PTI for certain offenses, this Court has recognized that PTI is essentially an extension of the charging decision,
therefore the decision to grant or deny PTI is a “quintessentially prosecutorial function.” State v. Wallace, 146 N.J.
576, 582 (1996). Trial courts may overrule a prosecutor’s decision to accept or reject a PTI application only when
the circumstances “‘clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the
program was based on a patent and gross abuse of . . . discretion.’” Ibid. (pp. 12-16)

3. The circumstances presented in this case are compelling and idiosyncratic. The criminal violations were
essentially self-reported, and occurred through an administrative error after Roseman correctly advised the clerk of
his marital status change and noted the change on his W-4 form. Lewin’s claims that were paid under Carlstadt’s
plan were never personally submitted by Lewin or Roseman. Lewin’s correct health-care provider made restitution
on all timely claims, and Lewin personally made restitution in the full amount of all time-barred claims. The Court
finds these factual circumstances sufficiently “extraordinary and unusual” to overcome the presumption against PTI
for second-degree offenses. (pp. 16-18)

4. There is no factual justification for the application of the factors set forth by the prosecutor under N.J.S.A. 2C:43-
12(e). The prosecutor merely parrots the statutory language, and presents bare assertions regarding Roseman’s
amenability to PTI. The record establishes that: (1) Roseman was not at fault for the initial reporting error; (2) upon
discovering the error he, without prompting, advised the Carlstadt Town Council; and (3) Roseman took several
steps to address the problem. Thus, there are “extraordinary and unusual” circumstances evincing that denial of
Roseman’s PTI application was plainly a patent and gross abuse of discretion. Although the appropriate remedy for
an inadequate statement of reasons by the prosecutor would ordinarily be to remand the matter, under the
circumstances, the Court is constrained to reverse the prosecutor’s decision and compel admission of Roseman into
PTI. Also, the prosecutor’s letter objecting to Lewin’s PTI application reveals that the assessment of Lewin was
entirely dependent on Roseman, thereby depriving Lewin of an individualized assessment. (pp. 18-24)



                                                           2
        The judgment of the Appellate Division is REVERSED and the trial court’s order compelling defendants’
admission into the Bergen County Pretrial Intervention Program is REINSTATED.

        CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA;
and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did
not participate.




                                                      3
                                      SUPREME COURT OF NEW JERSEY
                                     A-105/106 September Term 2013
                                                 073674

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

WILLIAM ROSEMAN and LORI
LEWIN,

    Defendants-Appellants.


         Argued March 2, 2015 – Decided June 18, 2015

         On certification to the Superior Court,
         Appellate Division.

         Patricia M. Prezioso argued the cause for
         appellant William Roseman (McCusker,
         Anselmi, Rosen & Carvelli, attorneys; Ms.
         Prezioso and Sarah L. Fehm, on the briefs).

         Alan L. Zegas argued the cause for appellant
         Lori Lewin (Law Offices of Alan L. Zegas,
         attorney; Mr. Zegas and Stephanie G. Forbes,
         on the briefs).

         Catherine A. Foddai, Senior Assistant
         Prosecutor, argued the cause for respondent
         (John L. Molinelli, Bergen County
         Prosecutor, attorney).

         Sarah E. Ross, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General of New Jersey (John J. Hoffman,
         Acting Attorney General, attorney).

    JUSTICE SOLOMON delivered the opinion of the Court.

    We are called upon to determine whether denial of

defendants’ applications to Pretrial Intervention (PTI) by the

                               1
prosecutor was a patent and gross abuse of discretion.     For the

reasons set forth below, we reverse the judgment of the

Appellate Division and reinstate the trial court’s order

compelling defendants’ admission into the Bergen County Pretrial

Intervention Program over the objection of the prosecutor.

                                  I.

    The record of the trial court proceedings reveals the

following.   Defendants William Roseman and Lori Lewin were

married from 1992 until 2000, during which time Roseman was

elected the Mayor of Carlstadt.    As his wife, Lewin was entitled

to, and received, medical, dental and prescription benefits

under Carlstadt’s plan of health, prescription and dental

insurance (Carlstadt’s plan).     After their divorce, each was

responsible for their own health insurance pursuant to the

divorce decree; Roseman and the son of the marriage would remain

on Carlstadt’s plan and Lewin was to be provided health

insurance coverage through her own employer.    Roseman notified a

Carlstadt payroll clerk, who also served as the Assistant to the

Insurance Officer, of the divorce.     At the direction of the

clerk, Roseman changed his W-4 tax form to reflect that he was

no longer married, but Lewin’s name was not removed from

Carlstadt’s plan.   During the investigation of this matter by

the prosecutor’s office, the clerk told investigators that she


                                  2
failed to remove Lewin from Carlstadt’s plan because the issue

had simply “slipped her mind.”   As a result of this

administrative error, following the divorce, Lewin remained on

Carlstadt’s plan, in addition to her own employer-provided

health insurance plan.

    Some of Lewin’s health care providers who supplied services

to Lewin during the marriage, had health insurance information

for both Lewin’s insurance plan and Carlstadt’s plan, and

continued to submit claims under Carlstadt’s plan following the

divorce.   Between 2000 and 2007, approximately one hundred

explanation of benefit (EOB) forms addressed to Roseman were

sent to the marital residence where Lewin continued to reside

following the divorce; thirteen of those EOB forms listed claims

against Carlstadt’s plan for services provided to Lewin.

    In late 2007, Carlstadt changed its dental insurance plan,

requiring Roseman to submit forms transferring himself and his

son to the new dental plan.   After reviewing the forms, the

Carlstadt Insurance Administrator inquired as to why Lewin was

not listed as an insured of the dental plan, and Roseman advised

that he and Lewin were divorced in 2000.   At this time, Roseman

discovered that Lewin was listed as an insured under Carlstadt’s

plan after the divorce.   Roseman promptly reported this error to

the town council, had Lewin removed from Carlstadt’s plan, and

initiated an internal audit of policy holders to detect other

                                 3
inaccuracies.   The audit revealed that three former wives of

city employees, including the former wives of a deputy police

chief and a police lieutenant, and five over-age children, were

also improperly listed as insureds under Carlstadt’s plan.

    In order to reimburse Carlstadt’s health insurance

provider, Lewin resubmitted to her employer’s health insurance

carrier all of her medical, prescription and dental claims that

had been paid by Carlstadt’s insurance providers after the

divorce.   As a result, Carlstadt’s insurance providers were

repaid by Lewin’s insurance plan for all re-submitted claims

that were not time-barred, and Lewin made direct restitution to

Carlstadt’s insurance providers for the time-barred claims.

    The investigation by the Bergen County Prosecutor’s Office

began in this matter when it was informed by a former

councilmember that Lewin had been receiving medical benefits

under Carlstadt’s plan following her divorce from Roseman.

After the investigation by the prosecutor’s office, Roseman and

Lewin were indicted in July 2009 on one count each of third-

degree conspiracy, N.J.S.A. 2C:5-2; third-degree theft by

deception, N.J.S.A. 2C:20-4; and second-degree official

misconduct, N.J.S.A. 2C:30-2a.   Even though eight other

individuals also were eligible to improperly receive benefits

under Carlstadt’s plan, Roseman and Lewin were the only

individuals prosecuted.

                                 4
    The prosecutor extended plea offers of probationary

sentences to both Roseman and Lewin in exchange for guilty pleas

to the third-degree theft by deception charge.    The plea offer

extended to Roseman also required that he admit guilt, resign

from office, and sign a consent order preventing him from

holding any political office in the future.

    Both Roseman and Lewin rejected the offer and applied for

admission into PTI.   Initially, Roseman was rejected for PTI,

but after he informed the prosecutor that he would agree to

resign and be subject to a lifetime disqualification from office

in exchange for the prosecutor’s consent to his PTI application,

approval of the agreement was sought and obtained by the

prosecutor from the Attorney General’s office.    The prosecutor

also expressed his willingness to dismiss the indictment against

Lewin if Roseman was admitted into PTI under those conditions.

Subsequently, defendants reconsidered and rejected the

conditioned PTI offer, and Roseman hired new counsel who filed a

motion to dismiss the indictment.

    Before the motion to dismiss was decided, the grand jury

delivered a superseding indictment adding one additional count

of each offense charged against each defendant.    Thereafter,

Roseman amended his motion to dismiss to reflect these new

charges.   On the motion to dismiss, the trial judge dismissed



                                 5
the official misconduct charges, but refused to dismiss the

remaining charges.

    The State was granted leave to file an interlocutory

appeal.   The Appellate Division reversed the trial judge and

reinstated the official misconduct counts of the indictment.

After the interlocutory appeal was decided, defendants initiated

efforts to resolve the matter, but those efforts failed because

Roseman refused to resign and agree never to pursue public

office in the future as conditions to any agreement.

    As a result, the prosecutor rejected in writing both

defendants’ PTI applications, citing the presumption against PTI

for second-degree offenses provided by the PTI Guidelines and

the following factors under N.J.S.A. 2C:43-12(e): the “nature of

the offense,” N.J.S.A. 2C:43-12(e)(1); the “facts of the case,”

N.J.S.A. 2C:43-12(e)(2); the “motivation and age” of the

defendants, N.J.S.A. 2C:43-12(e)(3); the “desire of the

complainant or victim to forego prosecution,” N.J.S.A. 2C:43-

12(e)(4); 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,” N.J.S.A. 2C:43-12(e)(5); the “likelihood that the

applicant’s crime is related to a condition or situation that

would be conducive to change” through PTI, N.J.S.A. 2C:43-

12(e)(6); the “needs and interests of the victim and society,”

                                 6
N.J.S.A. 2C:43-12(e)(7); a “continuing pattern of anti-social

behavior,” N.J.S.A. 2C:43-12(e)(8); the failure to prosecute

“would exacerbate social problems,” N.J.S.A. 2C:43-12(e)(11);

“[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)(14); and “[w]hether 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,” N.J.S.A. 2C:43-

12(e)(17).

    Following written rejection of defendants’ PTI applications

but before trial, the trial judge, over the objection of the

prosecutor, ordered that Roseman and Lewin be admitted into PTI

without conditions because the “State’s decision objecting to

defendants’ entry into PTI [was] not premised upon a

consideration of all relevant factors and [was] a clear error in

judgment that constitutes a patent and gross abuse of

discretion.”   The State filed a notice of appeal.

    In an unpublished opinion, the Appellate Division reversed

the order of the trial judge that directed defendants’

admissions into PTI over the prosecutor’s objection.     The panel

found that the prosecutor “was entitled to rely on the

presumptions against PTI for second-degree offenses and for

offenses committed by a public official,” and that Roseman had

                                 7
failed to establish by clear and convincing evidence that the

prosecutor patently and grossly abused his discretion in denying

Roseman’s PTI application.    As to Lewin, the panel found that

“the absence of an individual assessment of [her]

circumstances,” and the fact that “consideration of Lewin’s

eligibility for PTI was repeatedly linked to Roseman’s,”

required remand for an individualized assessment of Lewin’s PTI

application.

       This Court granted certification to determine whether the

prosecutor’s denial of defendants’ PTI applications constituted

a patent and gross abuse of discretion justifying the trial

court’s admission of defendants into PTI over the objection of

the prosecutor.   218 N.J. 274 (2014).

                                  II.

       Defendants maintain that they established by “clear and

convincing” evidence that the prosecutor abused his discretion

in denying their PTI applications.      Therefore, defendants submit

that the Appellate Division’s decision reversing the trial

court’s order gives prosecutors “unbridled discretion” to deny

PTI.   Defendants also argue that the Appellate Division’s

holding amounts to a per se rule that persons charged with

official misconduct cannot be admitted into PTI unless the

prosecutor consents, and that such a per se rule violates the

PTI Guidelines.

                                  8
       Furthermore, defendants claim that by relying on the

presumption against admission into PTI for second-degree

official misconduct, and by relying solely on Roseman’s actions

to deny Lewin’s application, both defendants were deprived of

individualized assessments of their amenability to

rehabilitation through PTI in violation of the PTI Guidelines.

Defendants argue that the State’s lack of an individualized

assessment of each application amounts to an abuse of

discretion.

       The State contends that the trial court improperly

substituted its judgment for that of the prosecutor and failed

to afford sufficient deference to the prosecutor’s denial of

defendants’ PTI applications by compelling their admission into

PTI.    The State maintains that the prosecutor’s denial was

entitled to deference because he properly considered all

relevant factors pursuant to N.J.S.A. 2C:43-12(e).    Thus, the

State claims that the prosecutor’s denial of defendants’ PTI

applications does not constitute an abuse of discretion.

Lastly, the State argues that defendants’ PTI applications were

untimely pursuant to Rule 3:28.

                                  III.

                                  A.

       We begin by discussing the historical background of PTI and

its purpose.   PTI is a “diversionary program through which

                                  9
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) [hereinafter Leonardis I]).     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 the Rule and the statute which ‘generally

mirror[]’ each other.”   Ibid. (quoting State v. Wallace, 146

N.J. 576, 582 (1996) (citations omitted)).

    Pursuant to the procedures and guidelines established by

Rule 3:28 and N.J.S.A. 2C:43-12, acceptance into PTI is

dependent upon an initial recommendation by the Criminal

Division Manager and consent of the prosecutor.    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).     These

factors include “the details of the case, defendant’s motives,

age, past criminal record, standing in the community, and

employment performance[.]”    Watkins, supra, 193 N.J. at 520; see

N.J.S.A. 2C:43-12(e).    Additionally, a PTI determination

requires that the prosecutor make an individualized assessment

                                  10
of the defendant considering his or her “‘amenability to

correction’ and potential ‘responsiveness to rehabilitation.’”

Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).

    While all defendants may apply for admission into PTI,

N.J.S.A. 2C:43-12(b), the PTI Guidelines provide several

statutory presumptions against PTI when defendants have

committed certain offenses, see Watkins, supra, 193 N.J. at 513.

Relevant to the present case, N.J.S.A. 2C:43-12(b) specifies a

statutory presumption against PTI for “a defendant who was a

public officer or employee whose offense involved or touched

upon his public office or employment.”   Similarly, Guideline

3(i) identifies a presumption against PTI for any first- or

second-degree crime, as well as any crime that is a breach of

the public trust.   Pressler & Verniero, Current N.J. Court

Rules, Guideline 3(i) on R. 3:28, at 1169 (2015) (stating

persons charged with first- or second-degree crimes “should

ordinarily not be considered for enrollment in a PTI program

except on joint application by the defendant and the

prosecutor”).

    Regardless of the statutory presumptions, “[e]ligibility

for PTI is broad enough to include all defendants who

demonstrate sufficient effort to effect necessary behavioral

change and show that future criminal behavior will not occur.”

Pressler & Verneiro, supra, Guideline 2 on R. 3:28, at 1167.

                                11
When a statutory presumption against PTI applies, as here, a

criminal defendant can show that PTI is nonetheless warranted

through “facts or materials demonstrating the defendant’s

amenability to the rehabilitation process.”     Ibid.   To overcome

the statutory presumption against PTI the defendant must “show[]

compelling reasons justifying . . . admission, and establish[]

that a decision against enrollment would be arbitrary and

unreasonable.”   Ibid.    Presumptions against PTI reflect an

assumption that certain defendants “have committed crimes that

are, by their very nature, serious or heinous and with respect

to which the benefits of diversion are presumptively

unavailable.”    Watkins, supra, 193 N.J. at 523.   Accordingly,

this Court has stated that overcoming these presumptions

requires showing “something extraordinary or unusual” about the

defendant’s background.    Nwobu, supra, 139 N.J. at 252-53.

                                  B.

       Our discussion in Nwobu, supra, 139 N.J. 236, of the

special circumstances required to overcome the presumption

against acceptance into PTI is instructive.    In that case, we

noted the fact “[t]hat Nwobu is charged with a second-degree

crime is the single most important factor involved.”     Id. at

252.    This Court then compared the issue of Nwobu’s admission

into PTI to the related context of criminal sentencing, and

stated that to overcome the “presumption of incarceration for

                                  12
first- and second-degree offenders,” there must be “‘truly

extraordinary and unanticipated circumstances’ when the

sentencing court finds that a ‘serious injustice’ exists.”

Ibid. (quoting State v. Roth, 95 N.J. 334, 358 (1984)).      Such a

showing requires more than just “that the accused is a first-

time offender and has admitted or accepted responsibility for

the crime.”    Id. at 252-53.

    The prosecutor in Nwobu rejected the defendant’s PTI

application based upon the following: the statutory presumption

against admission into PTI for second-degree offenders; that the

offense constituted “a continuing pattern of anti-social

behavior”; and that “PTI would fail to serve as a sufficient

sanction or deterrent.”     Id. at 241.   In Nwobu, where defendant

had been charged with second-degree theft by deception and was

seeking to overcome rejection of his PTI application by the

prosecutor, we found “nothing extraordinary or unusual” to

overcome the presumption against admission into PTI.      Id. at

241, 253.     We rejected Nwobu’s contentions that his status as a

first-time offender and his assertions that he played a

relatively minor role in the fraud rendered the prosecutor’s

denial of his application a patent and gross abuse of

discretion.    Id. at 252-53.




                                  13
    In a matter consolidated with Nwobu1, we affirmed the

prosecutor’s decision to deny PTI applications by three

defendants who had been charged with throwing firecrackers into

a crowd of people, second- and third-degree offenses.     Id. at

255-56.   As with Nwobu, we rejected the contentions that,

because defendants were first-time offenders and were otherwise

productive citizens, the prosecutor’s decision amounted to a

patent and gross abuse of discretion.    Ibid.   “Denying PTI to

those who intentionally throw destructive devices into a crowd

reflects legitimate considerations that are supported by the

Guidelines.”   Id. at 256.

    Nwobu did not establish a standard for “extraordinary and

unusual” circumstances.   To the contrary, we made clear that

this is a fact-sensitive analysis that requires consideration of

“idiosyncratic” circumstances demonstrating that denial of PTI

has resulted in a “serious injustice.”   Id. at 252; accord State

v. Jabbour, 118 N.J. 1, 7 (1990).

                                C.

    Even if “extraordinary and unusual” circumstances exist to

overcome the presumption against admission into PTI for certain

offenses, this Court has recognized that PTI is essentially an


1 The second case, State v. Callender, was consolidated with
Nwobu in order to adjudicate whether the prosecutors in both
cases “arbitrarily rejected defendants’ admission into Pretrial
Intervention programs[.]” Nwobu, supra, 138 N.J. at 240.
                                14
extension of the charging decision, therefore the decision to

grant or deny PTI is a “quintessentially prosecutorial

function.”   Wallace, supra, 146 N.J. at 582.   As a result, the

prosecutor’s decision to accept or reject a defendant’s PTI

application is entitled to a great deal of deference.     State v.

Leonardis, 73 N.J. 360, 381 (1977) [hereinafter Leonardis II].

Trial courts may overrule a prosecutor’s decision to accept or

reject a PTI application only when the circumstances “‘clearly

and convincingly establish that the prosecutor’s refusal to

sanction admission into the program was based on a patent and

gross abuse of . . . discretion.’”   Wallace, supra, 146 N.J. at

582 (quoting Leonardis II, supra, 73 N.J. at 382).   In State v.

Bender, 80 N.J. 84, 93 (1979), this 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
         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 judgement. . . . 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.




                                15
Where a defendant can make that showing, a trial court may admit

a defendant, by order, into PTI over the prosecutor’s objection.

State v. Dalglish, 86 N.J. 503, 513 (1981).

                               IV.

                               A.

     Initially, this Court will dispose of the State’s

timeliness argument.   It is undisputed that both defendants

applied to PTI within twenty-eight days of their indictment in

accordance with Rule 3:28.   Nevertheless, the State argues that

defendants’ PTI applications were untimely because the trial

judge reopened discussions of defendants’ PTI admission more

than two years after the indictment, and after defendants’

applications had been rejected by the prosecutor.

     It is “abundantly clear that, provided a defendant files a

timely application for PTI as required by R. 3:28(h), the denial

of his or her application may be reviewed prior to trial, and

may also be reviewed on direct appeal following conviction2

either after trial or the entry of a guilty plea.”   State v.

Halm, 319 N.J. Super. 569, 579 (App. Div.), certif. denied, 162




2 We note that in State v. Bell, 217 N.J. 336 (2014), where the
co-defendant Schwab timely applied and was admitted to PTI, we
rejected as untimely defendant Bell’s PTI application made more
than three years after indictment, and after defendant proceeded
to trial and was convicted of third degree attempted aggravated
assault.

                                16
N.J. 131 (1999).   The applications for PTI that led to this

dispute were properly filed by defendants within the twenty-

eight days provided by the Rule, and were properly treated by

the trial judge as reconsideration of previous applications,

rather than new, untimely applications.

                                 B.

       Turning to the considerations and presumptions relevant to

this case, defendants were charged with second-degree official

misconduct, which creates a presumption against acceptance into

PTI under both the Guidelines and N.J.S.A. 2C:43-12(b).      State

v. Caliguiri, 158 N.J. 28, 42 (1999).    However, the presumption

is rebuttable upon a “showing [of] compelling reasons justifying

the applicant’s admission and establishing that a decision

against enrollment would be arbitrary and unreasonable.”

Pressler & Verniero, supra, Guideline 3(i) to R. 3:28, at 1169.

The question before us is whether there were compelling reasons

to overcome the presumption against defendants’ admission into

PTI.

       The circumstances presented here are compelling and

idiosyncratic.   The criminal violations were essentially self-

reported, and occurred through an administrative error after

Roseman correctly advised the clerk of his marital status change

and noted the change on his W-4 form.    Upon discovery, Roseman

took immediate action to ameliorate the problem by removing

                                 17
Lewin from Carlstadt’s plan and initiating an internal audit of

all Carlstadt health insurance policy holders.    Lewin’s claims

that were paid under Carlstadt’s plan were never personally

submitted by Lewin or Roseman.     Rather, the claims were

submitted by Lewin’s health-care providers who had both

insurance plans on file.     Lewin’s correct health-care provider

made restitution on all timely claims, and Lewin personally made

restitution in the full amount of all time-barred claims.

    We find these factual circumstances sufficiently

“extraordinary and unusual” to overcome the presumption against

PTI for second-degree offenses.    However, our finding that

defendants have demonstrated extraordinary circumstances to

overcome the presumption against PTI for second-degree offenses

does not end our inquiry.     Defendants’ applications must still

be evaluated under the factors provided in N.J.S.A. 2C:43-12(e)

to determine whether the prosecutor’s denial was a patent and

gross abuse of discretion.

                                  C.

    A prosecutor’s decision to deny a defendant’s PTI

application is a “patent and gross abuse of discretion” if the

prosecutor’s decision “failed to consider all relevant factors,

was based on irrelevant or inappropriate factors, or constituted

a ‘clear error in judgment.’”     Nwobu, supra, 139 N.J. at 247

(quoting Bender, supra, 80 N.J. at 93).     “Additionally, an abuse

                                  18
of discretion is ‘patent and gross’ if it is shown ‘that the

prosecutorial error complained of will clearly subvert the goals

underlying [PTI].’”   Ibid.

    As noted previously, the State cites factors one through

eight, eleven, fourteen, and seventeen of the PTI statute,

N.J.S.A. 2C:43-12(e), in support of its denial of Roseman’s PTI

application.   However, there is no factual justification for the

application of those factors set forth by the prosecutor in the

record, which includes the prosecutor’s written denial of

Roseman’s PTI application.    Rather, the statement of reasons

provided by the prosecutor merely parrots the statutory

language, and presents bare assertions regarding Roseman’s

amenability to PTI.

    For example, the State fails to provide any factual support

for its conclusions in the letter denying Roseman’s PTI

application that: (1) denial of Roseman’s PTI application was

justified, in part, by his “motivation and age”; (2) “there may

exist personal problems or character traits which may be related

to the defendant’s crime, given the length of time this scheme

continued and for which services are unavailable or insufficient

within the criminal justice system, or it is probable that the

causes of defendant’s criminal behavior cannot be controlled by

proper treatment effectively through the supervisory treatment

program”; and (3) “the crimes appear to constitute part of a

                                 19
continuing pattern of defendant’s anti-social behavior, since

these were repeated thefts committed over many years.”

    The State relies heavily on the nature of defendants’

alleged wrongdoing and the facts of the case in arguing that

defendants committed theft by deception over a long period of

time and that Roseman, by virtue of the EOB forms, was aware

that Lewin remained on the policy.   However, the only evidence

on the subject that is of record establishes that: (1) Roseman

was not at fault for the initial reporting error; (2) upon

discovering the error he, without prompting, advised the

Carlstadt Town Council; and (3) Roseman took several steps to

address the problem, including immediately removing Lewin from

the plan and initiating an internal audit of all policy holders

under Carlstadt’s plan.   Thus, the record directly contradicts

the State’s assertion that the nature and facts of the case

militate in favor of prosecution.

    Indeed, contrary to the prosecutor’s findings, the unusual

facts presented here suggest that Roseman would have been

particularly amenable to PTI.   Furthermore, while the Borough of

Carlstadt would seem to have a legitimate interest in pursuing a

prosecution alleging theft of public funds, N.J.S.A. 2C:43-

12(e)(7), the prosecutor’s reliance upon this factor is refuted

by the State’s decision to prosecute only defendants even though

three ex-wives and five adult children of city employees also

                                20
were eligible to improperly receive benefits under Carlstadt’s

plan.   Moreover, given Roseman’s self-reporting, prompt

remediation, and stroke that occurred since his indictment in

2009 and caused partial vision and memory loss, it is difficult

to conceive of how the prosecutor decided that: “[t]here is a

likelihood that the defendant’s crime is related to a condition

or situation that would not be conducive to change through his

participation in supervisory treatment”; “[f]ailure to prosecute

would exacerbate the social problems that led to the defendant’s

criminal act [because] [w]ithout prosecution, those who engage

in criminal behavior, particularly against public entities, may

believe it is acceptable conduct or that the benefit of such

conduct outweighs the penalties,” or even what those social

problems were; how the “value of supervisory treatment would be

outweighed by the public need for prosecution,” or how “[t]he

harm done to society by abandoning criminal prosecution would

outweigh the benefits to society from channeling [defendant]

into a supervisory treatment program.”   Further, the State’s

assertion that supervisory treatment would be insufficient in

this case fails to account for the rehabilitative goals of PTI,

or that defendants are fully employed, productive members of

their community.

     The prosecutor’s bald declarations are insufficient to

support denial of Roseman’s PTI application.   Nwobu, supra, 139

                                21
N.J. at 251.   Accordingly, we cannot determine, based on the

record presented to us, that the factors considered by the

prosecutor support denial of Roseman’s application.    We

therefore conclude the prosecutor’s reliance on the above-

referenced factors was improper.

    The prosecutor relied upon irrelevant or inappropriate

factors, and there are “extraordinary and unusual” circumstances

evincing that denial of Roseman’s PTI application constituted a

clear error in judgement.   Therefore, we determine that such a

denial was plainly a patent and gross abuse of discretion that

“‘clearly subvert the goals underlying [PTI].’”    Nwobu, supra,

139 N.J. at 247 (quoting Bender, supra, 80 N.J. at 93).

    Ordinarily, the appropriate remedy for an inadequate

statement of reasons by the prosecutor would be remand for

further consideration of a defendant’s PTI application, and the

opportunity to provide an adequate factual basis for the

prosecutor’s findings.   However, where, as here, nearly six

years has elapsed since Roseman’s indictment during which time

he suffered a stroke, and circumstances show clearly and

convincingly that there has been a patent and gross abuse of

discretion by the prosecutor which constituted a clear error in

judgment that will “‘subvert the goals underlying [PTI],’”

ibid., remand is inappropriate.    We are therefore constrained to



                                  22
reverse the prosecutor’s decision and compel admission of

Roseman into PTI.

                               D.



    We now turn to Lewin’s PTI application.    In addition to

consideration of appropriate, relevant factors in evaluating an

applicant’s PTI application, we require that “a prosecutor must

consider an individual defendant’s features that bear on his or

her amenability to rehabilitation.”   Nwobu, supra, 139 N.J. at

255; see also State v. Sutton, 80 N.J. 110, 119 (1979).

Disposition of Lewin’s case, whether through plea or PTI, was

explicitly linked to Roseman’s disposition.   The letter from the

prosecutor listing the factors supporting a denial of Lewin’s

PTI application is brimming with references to Roseman’s actions

and contains a nearly identical factor analysis.   While the use

of identical factors for co-defendants’ PTI applications does

not rob those applicants of an individualized determination, the

prosecutor’s letter objecting to Lewin’s PTI application reveals

that the assessment of Lewin was entirely dependent on Roseman,

disproving any assertion that Lewin received an individualized

assessment.

                                V.

    For the reasons set forth above, the judgment of the

Appellate Division is reversed, and the trial court’s order

                               23
compelling defendants’ admission into the Bergen County Pretrial

Intervention Program is reinstated.



     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in
JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did not participate.




                               24
               SUPREME COURT OF NEW JERSEY

NO.   A-105/106                              SEPTEMBER TERM 2013

ON CERTIFICATION TO            Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

WILLIAM ROSEMAN and LORI
LEWIN,

      Defendants-Appellants.




DECIDED              June 18, 2015
               Chief Justice Rabner                        PRESIDING
OPINION BY                Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                 REVERSE AND
 CHECKLIST
                                  REINSTATE
 CHIEF JUSTICE RABNER                 X
 JUSTICE LaVECCHIA                    X
 JUSTICE PATTERSON                    X
 JUSTICE FERNANDEZ-VINA               X
 JUSTICE SOLOMON                      X
 JUDGE CUFF (t/a)                     X
 TOTALS                               6
