                                       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                                 NOT FOR PUBLICATION WITHOUT THE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 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-0896-17T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

JOSEPH P. BLANC,

     Defendant-Respondent.
________________________________

                   Argued January 23, 2019 – Decided February 6, 2019

                   Before Judges Hoffman and Suter.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 16-08-
                   1399.

                   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).

                   Barbara E. Ungar argued the cause for respondent.

PER CURIAM
      The Middlesex County Prosecutor (prosecutor) appeals the order granting

defendant Joseph P. Blanc's admission into the Middlesex County Pretrial

Intervention (PTI) Program over the prosecutor's objection. We reverse the

order and remand defendant's PTI application to the prosecutor for further

consideration.

                                        I.

      In August 2014, the police found two latent fingerprints on a bedroom

window of an apartment that had been burglarized. These identified defendant

as a participant in the burglary.

      Defendant was indicted for third-degree conspiracy to commit burglary,

theft and receiving stolen property, N.J.S.A. 2C:5-2, 2C:18-2(a)(1), 2C:20-3(a),

2C:20-7(a); third-degree burglary, N.J.S.A. 2C:18-2(a)(1); and third-degree

theft, N.J.S.A. 2C:20-3(a). The burglary and theft counts related solely to the

August 2014 burglary.

      Defendant's cousin, Anthony D. Armstrong, charged in the same

indictment with conspiracy to commit burglary, theft and receiving stolen

property, additionally was indicted with thirteen counts of third-degree burglary,

N.J.S.A. 2C:18-2(a)(1); twelve counts of third-degree theft, N.J.S.A. 2C:20-




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                                        2
3(a); two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7;

and a count of third-degree attempted burglary, N.J.S.A. 2C:5-1, 2C:18-2(a)(1).

Armstrong pleaded guilty to various counts including conspiracy. At his plea

hearing, Armstrong answered questions about the conspiracy count.

             [Prosecutor]: Just one follow up question. And . . . you
             had agreed with these individuals to break into these
             residences between the dates of August 14th of 2014
             and February 2nd of 2016; correct?

             [Armstrong]: Yes.

             [Prosecutor]: And those were in various . . . counties,
             including Middlesex and Union County?

             [Armstrong]: Yes.

             [Prosecutor]: And one of those co-conspirators was
             Joseph Blanc?

             [Armstrong]: Yes.

       A few months later, defendant applied for PTI, but the Criminal Division

Manager recommended against it.             The prosecutor thereafter rejected

defendant's application based on a review of the criteria in N.J.S.A. 2C:43-12(e).

With respect to factors one and two,1 nature of the offense and facts of the case,

the prosecutor's rejection letter alleged that the charges against defendant were



1
    N.J.S.A. 2C:43-12(e)(1) and (2).
                                                                          A-0896-17T2
                                        3
based on a multi-jurisdictional burglary and theft investigation involving

residential burglaries at garden-style apartments located in three counties and

seven towns, all involving the same modus operandi. The prosecutor alleged

this was a "complex and protracted burglary spree" with multiple co-

conspirators, many victims and significant financial losses. The prosecutor's

letter explained that Armstrong was identified as a suspect in the burglaries and

defendant was linked to Armstrong though Armstrong's social media accounts.

Two of defendant's fingerprints were found at one of the burglarized apartments.

That burglary involved $4680.57 in stolen items.

      The prosecutor took into consideration that defendant was twenty-nine,

not gainfully employed, had no mental or physical issues, smoked marijuana

daily and had not shown sufficient effort to "effect any behavior change."

N.J.S.A. 2C:43-12(e)(3).    The robbery victim did not take a position on

defendant's PTI request, but the prosecutor expressed "a strong societal need to

deter" this type of crime. N.J.S.A. 2C:43-12(e)(4). Defendant did not appear to

have personal problems or character traits for which services were unavailable.

N.J.S.A. 2C:43-12(e) (5) and (6).

      The prosecutor considered defendant's minimal involvement with law

enforcement. He had no criminal convictions, two municipal court convictions


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                                       4
for theft (2006) and shoplifting (2009) and two active warrants from municipal

court. He was arrested in New York for robbery in 2012 but the disposition of

that charge was unknown. N.J.S.A. 2C:43-12(e) (8) and (9).           Defendant's

charges did not involve an assault and were not violent in nature; defendant had

no history of violence toward others or involvement with organized crime.

N.J.S.A. 2C:43-12(e) (10), (12), and (13). However, the prosecutor argued that

residential burglary was a serious offense that merited prosecution rather than

diversion to PTI. Defendant was charged with engaging in a conspiracy that

"spanned a couple of years and included multiple jurisdictions and residences,"

N.J.S.A. 2C:43-12(e) (14) and (17).         PTI admission would "minimize the

seriousness of his conduct" and was contrary to "the strong need to protect the

public from this type of activity and deter this conduct."

      Defendant appealed to the Law Division, alleging the prosecutor's

rejection of his PTI application was a patent and gross abuse of discretion.

Defendant was charged with only one burglary and one count of conspiracy. He

argued he only had municipal court convictions. Defendant asserted he should

not be excluded from PTI because of these or the pending robbery charge from

New York. Armstrong took responsibility for the other robberies when he pled

guilty; he did not specifically relate defendant to any of them. Defendant argued


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                                        5
he would benefit from a short term supervisory program such as PTI, particularly

given his age and the program could be extended if appropriate. Otherwise, if

convicted, his career choices would be restricted, hindering employment.

Defendant argued he was denied PTI based on the charges against Armstrong

and not based on his individual charges.

      The Law Division judge granted defendant's PTI application over the

prosecutor's objection, finding rejection of defendant's PTI application was

"unsustainable." The prosecutor had a "skewed view of the evidence" that

"distort[ed] the true nature of the case against [defendant]" and tended to make

him appear more "villainous and nefarious" to negatively assess his PTI

application. The prosecutor had not given "due and proper consideration and

weight" to the factors, thereby denying defendant an individualized assessment.

      The judge found by clear and convincing evidence that the prosecutor

"gross[ly] and patently abused its discretion" and made a clear error in judgment.

The prosecutor erred by "characterizing defendant as a serial burglar."

Defendant was only indicted for one burglary; Armstrong "[was] solely

responsible" for the others. Armstrong's plea colloquy supported this, referring

to defendant simply as a "co-conspirator."      The court found there was no

individualized assessment of defendant because of the prosecutor's "skewed"


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                                        6
characterization of defendant's role. This prevented a proper evaluation of his

rehabilitative opportunity, repentance and motivation.      A conviction could

"seriously impact his future." The prosecutor failed to consider that defendant's

daily use of marijuana could explain his "present circumstances, and how the

statute itself recognizes the correlation between the two." There was little risk

of recidivism and no significant harm to be protected from. The prosecutor's

assessment of the factors was "misplaced, unwarranted, and unsupported by the

evidence in the case." The court conditioned defendant's PTI on completing a

drug and alcohol evaluation, paying penalties and assessments, full restitution

to the victim and maintaining employment. PTI was for three years. The court

stayed its order pending appeal.

      On appeal, the prosecutor contends that the PTI court erred by finding the

prosecutor's denial of defendant's PTI application was based on a patent and

gross abuse of discretion and by ordering defendant's admission into the PTI

program. It argues the trial court improperly substituted its judgment for the

prosecutor.

                                       II.

      Prosecutors have "wide latitude in deciding whom to divert into the PTI

program and whom to prosecute through a traditional trial." State v. Negran,


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                                       7
178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 249 (1995)). The

scope of review of a PTI rejection is "severely limited." Ibid. (citing Nwobu,

139 N.J. at 249). We apply the same deferential standard as the PTI court and

review its decision de novo. State v. Nicholson, 451 N.J. Super. 534, 553 (App.

Div. 2017) (citing State v. Waters, 439 N.J. Super. 215, 225 (App. Div. 2015)).

         "In order to overturn a prosecutor's rejection, a defendant must 'clearly

and convincingly establish that the prosecutor's decision constitutes a patent and

gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting

State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007)). An abuse of

discretion is manifested where it can be shown that the PTI denial "(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[.]" State v. Bender, 80 N.J. 84, 93 (1979). An abuse of

discretion rises to the level of "patent and gross" when "the prosecutorial error

complained of will clearly subvert the goals underlying [PTI]." Bender, 80 N.J.

at 93.

         This standard applies because the decision to permit a defendant to divert

to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J.

576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)). Prosecutors


                                                                           A-0896-17T2
                                          8
are given "broad discretion" in determining whether to divert a defendant into

PTI. State v. K.S., 220 N.J. 190, 199 (2015) (citing Wallace, 146 N.J. at 582).

Prosecutors consider a non-exhaustive list of seventeen statutory factors, see

N.J.S.A. 2C:43-12(e), in order to "make an individualized assessment of the

defendant considering his or her 'amenability to correction' and potential

'responsiveness to rehabilitation.'" State v. Roseman, 221 N.J. 611, 621-22

(citing Watkins, 193 N.J. at 520).

      "Eligibility 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." Id. at 622. "[It] 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.'" Id. at 621 (quoting Nwobu, 139 N.J. at 240). Its goal is to allow, in

appropriate situations, defendants to avoid the potential stigma of a guilty

conviction and the State to avoid "the full criminal justice mechanism of a trial."

State v. Bell, 217 N.J. 336, 348 (2014).

      In reviewing the prosecutor's rejection of a PTI application, there are

instances where a remand is appropriate. "When a reviewing court determines

that the 'prosecutor's decision was arbitrary, irrational, or otherwise an abuse of


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                                        9
discretion, but not a patent and gross abuse' of discretion, the reviewing court

may remand to the prosecutor for further consideration." K.S., 220 N.J. at 200

(quoting Dalglish, 86 N.J. at 509). The Court said that "[r]emand is the proper

remedy when, for example, the prosecutor considers inappropriate fact ors, or

fails to consider relevant factors." Ibid. This is done to allow the prosecutor to

"apply the standards set forth by the court" but "'without supplanting the

prosecutor's primacy in determining whether [PTI] is appropriate in individual

cases.'" Ibid. (quoting Dalglish, 86 N.J. at 514).

      We agree with the PTI court that the prosecutor's rejection of defendant's

PTI application constituted a misapplication of discretion.       Defendant was

indicted for conspiracy to commit burglary. That conspiracy was alleged to span

a nearly two-year timeframe with other alleged burglaries, but Armstrong did

not relate any specifics about defendant's involvement with those crimes when

he pled guilty. The prosecutor's letter stated that defendant participated in a

"complex and protracted burglary spree" with "several victims." It referenced

the crime "spree" in analyzing factors one, two, fourteen, and seventeen. It is

clear the letter was referencing all the burglaries for which Armstrong was

indicted. The prosecutor misapplied her discretion because there was nothing

linking defendant to those other burglaries.


                                                                          A-0896-17T2
                                       10
      An additional error involved factor nine.       In considering that factor,

regarding the defendant's record of criminal and penal violations, the prosecutor

considered defendant's municipal court convictions. Under Negran, 178 N.J. at

83, "petty offenses" cannot be considered in assessing a defendant's past

criminal and penal violations.

      We part company with the PTI court's order that this misapplication of

discretion by the prosecutor constituted a "patent and gross" abuse; the

prosecutor's error did not clearly undermine the goals of PTI. These goals are

multi-fold involving "opportunities to avoid ordinary prosecution by receiving

early rehabilitative services;" "an alternative to prosecution" for those that might

be harmed where an alternative can "deter criminal conduct;" "a mechanism for

permitting the least burdensome form of prosecution" for "victimless offenses;"

"assistance to criminal calendars . . . to focus" on "serious criminality and severe

correctional problems;" and "deterrence of future criminal or disorderly

behavior." N.J.S.A. 2C:43-12(a) (1) to (5).

      Defendant's application was analyzed consistent with these goals to

determine if he was appropriate for diversion and whether this would deter any

further criminal behavior.       For much of the analysis, the prosecutor

appropriately analyzed the relevant factors. However, threading through the


                                                                            A-0896-17T2
                                        11
analysis was consideration of burglaries charged against Armstrong that were

not linked to defendant, and "resulted in a decision that although not clearly

subversive to the underlying goals of PTI, might not otherwise have been

reached." Wallace, 146 N.J. at 583. We conclude there was a misapplication of

discretion by the prosecutor but that it was not clearly patent and gross. The

PTI court should have remanded the case to the prosecutor for an appropriate

consideration of the PTI factors. The prosecutor must consider defendant's PTI

application consistent with this opinion.

      Reversed and remanded. We do not retain jurisdiction.




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