                                NOT FOR PUBLICATION WITHOUT THE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-4200-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

IESHA JOHNSON-ELLIS,

     Defendant-Appellant.
____________________________

                    Submitted April 1, 2019 – Decided April 10, 2019

                    Before Judges Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Municipal Appeal No.
                    37-17.

                    Mark J. Molz argued the cause for appellant.

                    Jennifer B. Paszkiewicz, Assistant Prosecutor, argued
                    the cause for respondent (Scott A. Coffina, Burlington
                    County Prosecutor, attorney; Nicole Handy, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Iesha Johnson-Ellis appeals from the Law Division's April 10,

2018 order denying her appeal from the municipal court's rejection of her

application for entry into the conditional dismissal program pursuant to the

requirements of N.J.S.A. 2C:43-13.1 to -13.9 (the Act). For the reasons that

follow, we are constrained to reverse the April 10 order and remand for further

proceedings.

        To place this matter in context, we begin by briefly summarizing the key

provisions of the Act. 1 Subject to certain exceptions set forth in N.J.S.A. 2C:43-

13.1(b)(1),2 a defendant who is charged with a petty disorderly persons offense



1
    The Act became effective on January 4, 2014.
2
    N.J.S.A. 2C:43-13.1(b)(1) states that

              [a] defendant shall not be eligible for participation in
              the conditional dismissal program if the offense for
              which the person is charged involved: (a) organized
              criminal or gang activity; (b) a continuing criminal
              business or enterprise; (c) a breach of the public trust
              by a public officer or employee; (d) domestic violence
              as defined by . . . [N.J.S.A. 2C:25-19]; (e) an offense
              against an elderly, disabled or minor person; (f) an
              offense involving driving or operating a motor vehicle
              while under the influence of alcohol, intoxicating
              liquor, narcotic, hallucinogenic or habit-producing
              drug; (g) a violation of animal cruelty laws; or (h) any
              disorderly persons offense or petty disorderly persons
              offense under chapter 35 or 36 of Title 2C.
                                                                           A-4200-17T1
                                            2
or disorderly persons offense, and who has not previously been convicted of

such offenses or crimes, and who has not previously participated in one of the

diversionary programs set forth in N.J.S.A. 2C:43-13.1(a), may apply to the

municipal court to enter into "the conditional dismissal program" (the program).

Ibid. The defendant must file the application "after a plea of guilty or a finding

of guilt, but prior to the entry of a judgment of conviction." Ibid. The defendant

must also provide "appropriate notice" to the municipal prosecutor that an

application will be made, ibid., so that the prosecutor can make a

recommendation to the municipal court judge as to whether the application

should be granted or denied. N.J.S.A. 2C:43-13.2.

      In addition to reviewing the municipal prosecutor's recommendation and

the defendant's criminal record, ibid., the municipal court must also consider the

following ten factors set forth in N.J.S.A. 2C:43-13.1(c):

            (1)   The nature and circumstances of the offense;

            (2)   The facts surrounding the commission of the
                  offense;

            (3)   The motivation, age, character and attitude of the
                  defendant;

            (4)   The desire of the complainant and victim to
                  forego prosecution;



                                                                          A-4200-17T1
                                        3
            (5)   The needs and interests of the victim and the
                  community;

            (6)   The extent to which the defendant's offense
                  constitutes part of a continuing pattern of anti-
                  social behavior;

            (7)   Whether the offense is of an assaultive or violent
                  nature, whether in the act itself or in the possible
                  injurious consequences of such behavior;

            (8)   Whether the applicant's participation will
                  adversely affect the prosecution of codefendants;

            (9)   Whether diversion of the defendant from
                  prosecution is consistent with the public interest;
                  and

            (10) Any other factors deemed relevant by the court.

      If the municipal court grants the application after considering these

criteria, the court will not enter a judgment of conviction and, instead, will

"place the defendant under a probation monitoring status for a period of one

year."3 N.J.S.A. 2C:43-13.2. At the end of the probationary period, which may

be extended for good cause, N.J.S.A. 2C:43-13.3, the court may dismiss the

proceedings against the defendant provided he or she "has not been convicted of



3
  A defendant applying for admission to the program must pay a $75 application
fee and, if he or she is subsequently admitted to the program, may be assessed
an additional fee, which "shall not exceed the amount of a fine that would have
been imposed for conviction of the offense charged." N.J.S.A. 2C:43-13.8.
                                                                         A-4200-17T1
                                        4
any subsequent petty disorderly persons offense, disorderly persons offense or

crime under any law of the United States, this State or any other state, and has

complied with any other terms and conditions opposed by the court[.]" N.J.S.A.

2C:43-13.5.

              The conditional dismissal . . . granted pursuant to [the
              Act] shall not be deemed a conviction for the purposes
              of disqualification or disabilities, if any, imposed by
              law upon conviction of a petty disorderly persons or
              disorderly persons offense but shall be reported to the
              State Bureau of Identification criminal history record
              information files for purposes of determining future
              eligibility or exclusion from court diversion programs.

              [N.J.S.A. 2C:43-13.6.]

       With this essential statutory background in mind, we turn to the facts of

this case. Defendant was charged with assaulting two victims in a parking lot

in violation of N.J.S.A. 2C:12-1(a)(1). Because this charge was neither a petty

disorderly persons offense nor a disorderly persons offense, defendant was not

eligible to apply for entry into the program. N.J.S.A. 2C:43-13.1(a). However,

the charge was subsequently downgraded to the petty disorderly persons offense

of harassment by offensive touching. N.J.S.A. 2C:33-4(b).4 Because defendant




4
    The record does not contain any explanation for the charge downgrade.
                                                                         A-4200-17T1
                                         5
was now charged with a petty disorderly persons offense, and had no prior

convictions, she was now eligible to apply to the program.

      On December 18, 2017, defendant appeared in the municipal court. Her

attorney advised the judge that defendant had agreed to plead guilty to the petty

disorderly persons offense of harassment, and that she would like to apply to the

program. In response, the judge stated that defendant was "not eligible for that

type of program" because the charge "involves an assaultive behavior." Without

any further explanation, the judge summarily denied defendant's application.

      This ruling was incorrect because although the court is required to

consider "[t]he nature and circumstances of the offense" and "[w]hether the

offense is of an assaultive or violent nature," the Act does not automatically bar

a defendant charged with an assault not covered by the exceptions set forth in

N.J.S.A. 2C:43-13.1(b), from applying for the program. 5        N.J.S.A. 2C:43-

13.1(c)(1) and (7). Therefore, the judge should have considered the application

and made a determination as to whether, in combination with all of the other



5
  We note that, effective August 10, 2015, the Legislature amended the criteria
for admission into the Pretrial Intervention Program (PTI) to make clear, as it
did in the Act, that any presumption against admission to PTI for applicants who
had committed an act "of an assaultive or violent nature" did not apply beyond
domestic violence offenders. See N.J.S.A. 2C:43-12(b)(2)(b) and (e)(10); L.
2015, c. 98, § 4.
                                                                          A-4200-17T1
                                        6
statutory factors, the fact that the offense may have been "of an assaultive or

violent nature" weighed against admission to the program.

      We make two additional observations about the judge's ruling on

defendant's application. First, although the municipal prosecutor's name is listed

on the title page of the December 18, 2017 transcript, this individual did not

enter an appearance in connection with defendant's plea, and made no comments

during the entire proceeding. Thus, the municipal prosecutor never provided the

court with a recommendation concerning defendant's application for entry to the

program as required by N.J.S.A. 2C:43-13.2.

      In addition, the judge did not mark any exhibits into evidence as required

by Rule 1:2-3. Thus, while the judge would later state that he had defendant's

criminal record available to him, we have no way of knowing what specific

record was being referenced.

      After the judge denied her application for admission to the program,

defendant provided a factual basis for her guilty plea by stating that she "did

commit an act of harassment by offensively touching the [two] victims in this

matter as alleged[.]" No further details of the offense were provided. The judge




                                                                          A-4200-17T1
                                        7
accepted the guilty plea, and ordered defendant to pay a $500 fine and other

court costs.6

      After imposing the sentence, the judge noted that one of the victims was

present in the courtroom, and stated "we heard earlier from [this victim]. Is

there anything you'd like to add at this time?" The victim replied, "My sister is

on her way. I can't speak for her. She is on call and I talked to the Prosecutor

and he had me call her and my mom in because my mom was a witness." The

victim made no further statements and did not express any position on

defendant's prior application for admission into the program under N.J.S.A.

2C:43-13.1(c)(4).

      At the conclusion of the hearing, defense counsel asked the judge whether

he had "reserve[d] [decision] on the issue of whether [defendant] can get a

conditional dismissal." The judge confirmed that he had "ruled that she can't[,]"

and stated, "If you want to appeal that decision, . . . you certainly know how to

do that, okay?"

      Defendant filed an appeal to the Superior Court for a trial de novo. In a

trial de novo, the Superior Court (trial) judge is obliged to "determine the case



6
  The judge also granted defendant's application for a civil reservation under
N.J.S.A. 7:6-2(a)(1).
                                                                         A-4200-17T1
                                       8
completely anew on the record made in the [m]unicipal [c]ourt," giving due,

although not necessarily controlling, regard to the opportunity of the [municipal

court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J.

146, 157 (1964). Unfortunately, this did not occur.

        Instead, the trial judge simply read the entire transcript of the municipal

court proceeding into the record, and found that the municipal court judge did

not abuse his discretion in denying the application. The trial judge did not make

any independent findings of fact and conclusions of law as required by Johnson.

Ibid.

        The trial judge also overlooked the fact that the municipal court judge had

summarily denied the application without considering any of the statutory

factors under the mistaken belief that a defendant charged with an offense

involving assaultive behavior was automatically barred from the program. Thus,

without any support in the record, the trial judge concluded that the municipal

court judge considered all of the factors set forth in N.J.S.A. 2C:43-13.1(c),

including the "criminal case history" that was not entered as an exhibit during

the plea hearing.

        Although the victim never stated whether she supported or opposed

defendant's application when the municipal court judge finally addressed her


                                                                           A-4200-17T1
                                         9
after sentencing defendant, the trial judge found that the victim "wasn't thrilled

about a conditional . . . dismissal[,]" apparently because she appeared at the

hearing as requested by the prosecutor.      The trial judge therefore rejected

defendant's appeal from the municipal court judge's denial of her application.

This appeal followed.

      On appeal, defendant raises the following contentions:

            POINT I

            THE [N.J.S.A. 2C:33-4(b)] AMENDMENT IS
            PERMISSIBLE UNDER THE CONDITIONAL
            DISMISSAL STATUTE.

            POINT II

            THE [N.J.S.A. 2C:33-4(b)] CHARGE IS NOT
            DISQUALIFIED    FOR     THE  CONDITIONAL
            DISMISSAL STATUTE.

            POINT III

            FACTORS IN EVALUATING WHETHER THE
            COURT SHOULD ADMIT AN ELIGIBLE
            CANDIDATE INTO THE PROGRAM.

      When the Law Division conducts a trial de novo on the record developed

in the municipal court, "[o]ur review is limited to determining whether there is

sufficient credible evidence present in the record to support the findings of the

Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J.


                                                                          A-4200-17T1
                                       10
Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62

(1964)). Having reviewed the record in light of our standard of review, we are

compelled to reverse and remand this matter for additional proceedings.

      As noted above, the trial judge mistakenly reviewed the municipal court

judge's decision to determine whether that judge had abused his discretion in

denying the application, rather than conducting his own independent, de novo

review of the matter as required by Johnson, and making his own findings of

fact and conclusions of law. While a trial judge need not author a lengthy written

opinion, or deliver an hour-long oral ruling to meet the requirements of Rule

1:7-4(a) in every case, the judge must always state what specific facts formed

the basis of the decision, and then weigh and evaluate those facts in light of the

governing law "to reach whatever conclusion may logically flow from" those

facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357 (App. Div. 2017). Because

the trial judge did not fulfill his obligation in this regard, a remand is required.

      Moreover, the trial judge's determination that the municipal court judge

considered all of the statutory factors has no support in the record. Indeed ,

because the municipal court judge incorrectly denied defendant's application

solely because her offense involved "assaultive behavior," that judge did not

review any of the required factors. Contrary to the trial judge's conclusion, the


                                                                             A-4200-17T1
                                        11
victim never took a position on defendant's application.          The municipal

prosecutor's failure to make a recommendation on the application, or even speak

on the record concerning it, is another reason supporting a remand.

      In sum, defendant's application did not receive the consideration it was

due under the Act.     Therefore, we reverse the trial judge's order denying

defendant's appeal, and remand to the Law Division for an independent, de novo

review of the application as required by Johnson.

      In remanding this matter, we make clear that nothing within this opinion

forecasts any views on the merits of defendant's application for entry into the

program. We say no more than that because the trial court failed to conduct an

appropriate de novo review, provide independent findings of fact and

conclusions of law, or render a decision that was supported by sufficient credible

evidence in the record, the issues presented are not ripe for decision.

      Reversed and remanded. We do not retain jurisdiction.




                                                                          A-4200-17T1
                                       12
