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                                                SUPERIOR COURT OF NEW JERSEY
                                                APPELLATE DIVISION
                                                DOCKET NO. A-1281-16T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

M.M.-P.

     Defendant-Appellant.
__________________________

               Submitted April 25, 2018 — Decided June 25, 2018

               Before Judges Koblitz and Manahan.

               On appeal from Superior Court of New Jersey,
               Law Division, Salem County, Indictment No. 12-
               10-0648.

               Joseph E. Krakora, Public Defender, attorney
               for appellant (John Douard, Assistant Deputy
               Public Defender, of counsel and on the brief).

               John T. Lenahan, Salem County Prosecutor,
               attorney for respondent (David M. Galemba,
               Assistant Prosecutor, of counsel and on the
               brief).

PER CURIAM
       Defendant M.M.-P.1 appeals from her April 25, 2013 conviction

for fourth-degree child neglect, N.J.S.A. 9:6-3,2 after a remand

from our Supreme Court for reconsideration of the denial of her

pre-trial    intervention   (PTI)   application.   She   successfully

completed her sentence of one year of probation prior to the

remand.    We now reverse, based on the holding in Dep't of Children

& Family Servs. v. E.D.-O., 223 N.J. 166 (2015).

       On June 12, 2012, defendant went inside a local grocery store,

leaving her almost three-month-old infant son asleep in her car.

According to defendant, it was raining and the child was not

feeling well.    Penns Grove police officers found the car locked

with the windows rolled up.    Approximately five minutes after the

police arrived, defendant exited the store with two grocery bags.

The infant did not suffer any injury.        Defendant had no prior

criminal history.

       Defendant was indicted for second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a). The criminal case manager

rejected defendant's PTI application based on the seriousness of

the second-degree charge and defendant's appeal was rejected by

the trial judge. She then pled guilty to the fourth-degree charge,




1
     We use initials pursuant to Rule 1:38-3(c)(5).
2
     The judgment of conviction mistakenly refers to N.J.S.A. 9:6-
1.
                                    2                        A-1281-16T4
admitting she had put her son in danger by leaving him unattended

in her car, and reserved her right to appeal the denial of her PTI

application.        She   received   a   one-year    probationary    term.        We

affirmed.      State v. M.M.-P., No. A-5967-12 (App. Div. Oct. 16,

2014).        The   Supreme      Court   granted    defendant's   petition      for

certification and remanded to the trial court in light of the

Supreme Court's decision in E.D.-O, decided after our opinion.

State    v.   M.M.-P.,     223    N.J.   272   (2015).     The    State   opposed

defendant's retroactive admission into PTI and the trial court

again affirmed the denial.

     On appeal, defendant argues:

              POINT I:   BECAUSE THE FACTS IN E.D.O. WERE
              NEARLY IDENTICAL TO THE FACTS IN THE PRESENT
              CASE, THIS COURT MUST APPLY THE STANDARD FOR
              FINDING   IMMINENT  DANGER   USED   THERE  TO
              DETERMINE WHETHER MS. [M.-P.] POSED AN
              IMMINENT DANGER TO THE CHILD AT THE TIME OF
              THE INDICTMENT IN QUESTION.     MOREOVER, MS.
              [M.-P.] WAS DENIED A FULL RECONSIDERATION
              HEARING FOR THE PURPOSE OF ASSESSING HER PTI
              ELIGIBILITY AS SHE STOOD BEFORE THE COURT.

              A.   THE PROSECUTOR'S ATTEMPT TO DISTINGUISH
              THE PRESENT CASE FROM E.D.O. MISSTATED THE
              FACTS IN E.D.O. AND FAILED TO APPLY THE PROPER
              STANDARD FOR FINDING IMMINENT DANGER.

              B. CONTRARY TO THE REMAND ORDER, THE
              PROSECUTOR'S REJECTION OF MS. [M.-P.'s]
              CURRENT APPLICATION FOR PTI FAILED TO CONSIDER
              ANY OF THE RELEVANT FACTORS UNDER N.J.S.A.
              2C:43-12(e), CONSIDERED IRRELEVANT FACTORS,
              AND CONSTITUTED A CLEAR ERROR OF JUDGMENT.



                                          3                               A-1281-16T4
     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. Baynes, 148 N.J. 434, 441 (1997) (quoting

State v. Nwobu, 139 N.J. 236, 240 (1995)).         Admission into PTI is

"based on a recommendation by the criminal division manager, as

Director of the PTI Program, with the consent of the prosecutor."

Ibid. (citing R. 3:28(c)(1)).

     Guideline 3(i) creates a "presumption against acceptance"

into PTI for defendants whose crimes fall into the enumerated

categories.        Id. at 442.    The categories include a defendant

charged with a second-degree crime.         Guidelines for Operation of

Pretrial Intervention in New Jersey, Pressler & Verniero, Current

N.J. Court Rules, Guideline 3(i)(3), following R. 3:28 at 1294

(2018).    Our Supreme Court has stated that "a prosecutor may, in

appropriate circumstances, reject an applicant solely because of

the nature of the offense."        State v. Caliguiri, 158 N.J. 28, 36

(1999) (citation omitted).         But our Supreme Court has warned:

"conditioning a defendant's admission to PTI solely on the nature

of his or her offense 'may be both arbitrary and illogical' and

that '[g]reater emphasis should be placed on the offender than on

the offense.'"          State v. Brooks, 175 N.J. 215, 224-25 (2002)

(alteration in original) (quoting State v. Leonardis, 71 N.J. 85,


                                       4                           A-1281-16T4
102 (1976)).         "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.'"                     State v. Roseman,

221 N.J. 611, 622 (2015) (quoting State v. Watkins, 193 N.J. 507,

523 (2008), when reversing the denial of PTI for a defendant

charged with second-degree official misconduct).

       Judicial       review     of    a   prosecutor's    decision    to   deny    an

application for admittance into PTI is limited to whether the

defendant has "clearly and convincingly establish[ed] that the

prosecutor's decision constitutes a patent and gross abuse of

discretion."         Watkins, 193 N.J. at 520 (quoting State v. Watkins,

390 N.J. Super. 302, 305-06 (App. Div. 2007)).                       "A patent and

gross abuse of discretion is defined as a decision that 'has gone

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

fundamental fairness and justice require judicial intervention.'"

Ibid. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

       In E.D.-O., a Title 9 child abuse or neglect case, a mother

left    her        sleeping      nineteen-month-old       child    unattended      for

approximately ten minutes in a locked motor vehicle with the motor

running and the windows slightly open in a shopping mall parking

lot.    223 N.J. at 169.              The Court noted the factors that should

be considered in determining whether a parent's decision to leave


                                             5                               A-1281-16T4
a child unattended in a car constitutes neglect.    Id. at 193-94.

The factors include "the distance between the store and the parked

car, the mother's ability to keep the car in sight, how long the

car was out of view, how long the child remained unattended, and

any extenuating circumstances."      Id. at 194.   Other relevant

circumstances to be considered were "the weather on the day the

child is left unattended and the ability of someone to enter the

vehicle."   Ibid.   A fact-finding determination of neglect is not

a criminal determination and must be proven only by a preponderance

of the evidence.    N.J.S.A. 9:6-8.46(b).

     Here, defendant was charged with a second-degree crime for

behavior very similar to that the Supreme Court found not clearly

neglectful in E.D.-O.    The fourth-degree crime of child neglect,

N.J.S.A. 9:6-3, fits the State's version of the facts as well as

the second-degree crime of child endangerment.3      Certainly, if

those facts were no more severe than in E.D.-O., the criminality

of the behavior is highly questionable.     We therefore determine

that the State's refusal to admit defendant into PTI due to the

severity of the crime charged was a gross abuse of discretion.

     Reversed.




3
   We note that the Supreme Court has heard oral argument on the
issue of whether actual harm to the child must be shown for a
conviction of the second-degree child endangerment crime. State
v. Fuqua, 230 N.J. 560 (2017).
                                 6                         A-1281-16T4
