                                NOT FOR PUBLICATION WITHOUT THE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-0196-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

COREY O. REAVES,

     Defendant-Appellant.
_____________________________

                    Submitted November 29, 2018 – Decided March 4, 2019

                    Before Judges O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 16-04-1253.

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

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Tiffany M. Russo,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant, Corey O. Reaves, appeals from an April 28, 2017 judgment of

conviction after pleading guilty to one count of third-degree conspiracy to

commit assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(7), and

receiving one year of probation. On appeal, defendant challenges the December

13, 2016 order denying his appeal of the State's rejection of his Pretrial

Intervention program (PTI) application.         We reverse the order denying

defendant's PTI appeal and remand to the trial court and instruct the prosecutor

to consider defendant's PTI application anew.

      We discern the following facts from the record. On September 9, 2015,

two cab drivers were parked in a parking lot when four high-school-aged males

and three females approached their cabs. One male began writing on the window

of one of the cabs with black marker. When the cab driver stepped out of his

cab to stop the male, another male punched him in the face with brass knuckles.

The second cab driver exited his cab to assist but was met by a punch to the head

from another male. During the struggle, the second cab driver was able to grab

onto and remove an assailant's backpack.        The first cab driver suffered a

fractured eye socket and jaw, which required facial reconstruction surgery. The

second cab driver went to a police station and provided a physical description

of the assailants. The only description the first cab driver could provide was


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                                       2
that one assailant was wearing brass knuckles. No brass knuckles were ever

found.

      Police searched the backpack and found the name "N. Benjamin" written

on notebooks and files. Police identified N. Benjamin but he fled the country

before charges were filed. Security footage showed the group entering and

exiting the parking lot but does not show the assault. Based on the physical

description of the assailants and the video, police focused on defendant and

N.M., a juvenile, as suspects. Police showed the video to defendant's mother,

who identified her son in the group. Based on this evidence, the prosecutor

believed defendant was the assailant with the brass knuckles who struck the first

cab driver.

      Defendant turned himself in after learning he was a suspect. He was later

charged with one count of second-degree aggravated assault, N.J.S.A. 2C:5-

2(a)(1), one count of second-degree conspiracy to commit assault, N.J.S.A.

2C:12-1(b)(1), one count of fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d), and one count of third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d).




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                                       3
      Defendant applied to the PTI program. Pursuant to Rule 3:28, defendants

charged with violent crimes are presumptively ineligible for PTI. 1 For this

reason, and the fact defendant had two juvenile charges, one of which was

dismissed, the program manager denied defendant's application. The prosecutor

agreed and, pursuant to N.J.S.A. 2C:43-12(e), found factors one, two, four,

seven, nine, ten, fourteen, and seventeen to be relevant.        The prosecutor

described defendant as the primary assailant, saying "Defendant wrote graffiti,

on . . . the rear of the victim's taxi cab," and "defendant viciously attacked the

innocent and defenseless victim with a pair of brass knuckles." Defendant, the

prosecutor explained, presented a substantial danger to the public because he is

"exceedingly violent" and, considering his juvenile adjudication, this was the

second time he was charged with a violent offense within two years.

      Alternatively, the prosecutor considered mitigating factors three, eight,

thirteen, and sixteen to be relevant. The prosecutor mentioned defendant's age,



1
   Effective July 1, 2018, the former Rule 3:28, which contained several
guidelines for PTI assessments, was revised and replaced by Rules 3:28-1 to -
10. The new rules more closely track the statutory factors and case law.
However, because defendant's PTI assessment was made on September 29,
2016, the former version of the rules apply. RSI Bank v. Providence Mut. Fire
Ins. Co., 234 N.J. 459, 473 n.4 (2018) (applying "version of Rule 3:28 and the
accompanying Guidelines and Comments that governed when [the defendant]
was admitted to PTI").
                                                                          A-0196-17T2
                                        4
that he does not pay child support, the fact he did not graduate from high school

or obtain a GED, his admission he smoked marijuana daily, and his "sporadic

and limited" employment history as mitigating factors. Additionally, the fact

defendant completed probation for his juvenile offense but still committed the

assault shows he was not deterred by such punishment.

      Defendant appealed to the trial court and admitted he had been present

and assisted the group flee from the scene. The prosecutor reiterated many of

the same arguments of why the denial was justified. However, the prosecutor

abandoned the contention defendant was the assailant with the brass knuckles.

Rather, the prosecutor relied on the fact defendant admitted he was present for

the assaults as justification for denial of his PTI application. The trial court

declined to overturn the prosecutor's decision, citing the substantial deference

afforded to prosecutors' disposition of PTI applications.

      Defendant pled guilty to one count of conspiracy to commit assault. At

defendant's sentencing, the judge explained defendant pled guilty to "basically

an aiding and abetting" charge and not "an accomplice or accessory theory"

because "[t]here's no indication nor acknowledgment that Mr. Reaves actually

physically hit anybody." Defendant was sentenced to one year of probation and




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                                       5
his judgment of conviction was modified to reflect he spent 140 days in jail.

This appeal followed.

      On appeal defendant argues the following:

            Point I

            THE TRIAL COURT ERRED IN FINDING THAT
            THE STATE'S DENIAL OF DEFENDANT'S
            APPLICATION FOR PRE-TRIAL INTERVENTION
            WAS NOT A PATENT AND GROSS ABUSE OF
            DISCRETION.

            A.    Considered Factors

                  Factors One, Two, Nine, and Ten

                  Factors Seven, Fourteen, and Seventeen

            B.    Applicable, But Ignored Factors

                  Factors Five, Six, and Eleven

            C.    Improperly Considered Factors

      Having reviewed the record, we agree with defendant and reverse and

remand to the prosecutor for reconsideration of defendant's PTI application.

Both the statute governing admission into PTI and case law afford substantial

deference to the prosecutor's disposition of a PTI application. The prosecutor is

often in the best position to decide whether a defendant is an appropriate

candidate for PTI; however, this authority is not unassailable. We are obliged


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                                       6
to identify when a prosecutor presents arbitrary justifications or relies on

impermissible factors to deny a PTI application. This check is necessary to

ensure applicants to the PTI program receive an honest and individualized

assessment of their amenability to rehabilitation.

      We note defendant was eighteen when first arrested and on track to obtain

a high school diploma. However, because he could not make bail, he could not

complete his senior year. Defendant was nineteen when released from jail but

was unable to re-enroll in his former high school because he was too old. In his

letter to the prosecutor, he indicated a willingness to complete a GED.

      This was defendant's first adult offense. In 2012, when he was a juvenile,

an obstruction of the administration of justice charge against him was dropped.

In 2014, defendant was adjudicated delinquent after committing a robbery and

was sentenced to one year of probation.

      Defendant has one child and was never ordered to pay child support.

Defendant was raised by and lived with his mother. He moved frequently and

attended five schools after eighth grade. At age fifteen, defendant resumed a

relationship with his father upon his father's release from prison.

      Prior to his arrest, defendant worked at a grocery store and with his father

in a landscaping and lumber business. Defendant lost his job at the grocery store


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                                        7
due to tardiness. After his release from jail, he obtained employment providing

transportation assistance to disabled persons. Defendant admitted he smoked

marijuana.

      Admission into PTI requires recommendation by the program manager

and acceptance by the prosecutor. N.J.S.A. 2C:43-12(e). Both the program

manager and prosecutor "shall consider" the following factors in rendering an

admission decision:

                  (1) The nature of the offense;

                  (2) The facts of the case;

                  (3) The motivation and age of the defendant;

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

                  (5) 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, or
                  which may be provided more effectively through
                  supervisory treatment and the probability that the
                  causes of criminal behavior can be controlled by
                  proper treatment;

                  (6) The likelihood that the applicant's crime is
                  related to a condition or situation that would be
                  conducive to change through his participation in
                  supervisory treatment;



                                                                       A-0196-17T2
                                       8
(7) The needs and interests of the victim and
society;

(8) The extent to which the applicant's crime
constitutes part of a continuing pattern of anti-
social behavior;

(9) The applicant's record of criminal and penal
violations and the extent to which he may present
a substantial danger to others;

(10) Whether or not the crime is of an assaultive
or violent nature, whether in the criminal act
itself or in the possible injurious consequences of
such behavior;

(11) Consideration of whether or not prosecution
would exacerbate the social problem that led to
the applicant's criminal act;

(12) The history of the use of physical violence
towards others;

(13) Any involvement of the applicant with
organized crime;

(14) Whether or not the crime is of such a nature
that the value of supervisory treatment would be
outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement
with other people in the crime charged or in other
crime is such that the interest of the State would
be best served by processing his case through
traditional criminal justice system procedures;




                                                      A-0196-17T2
                     9
                  (16) Whether or not the applicant's participation
                  in pretrial intervention will adversely affect the
                  prosecution of codefendants; and

                  (17) Whether 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.

                  [Ibid.]

Guideline 3(i)(2) provides defendants accused of violent crimes are

presumptively ineligible for PTI.    R. 3:28.   Defendants can overcome this

presumption by showing "something extraordinary or unusual, something

'idiosyncratic,' in his or her background." State v. Nwobu, 139 N.J. 236, 252

(1995) (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).

      A PTI determination requires 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

(2015) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). A defendant denied

access to PTI can appeal the decision to the trial judge, but the prosecutor's

decision "is entitled to a great deal of deference." Id. at 624. Our scope of

review is "severely limited" and "designed to address 'only the most egregious

examples of injustice and unfairness.'" State v. Denman, 449 N.J. Super. 369,

376 (App. Div. 2017) (quoting State v. Negran, 178 N.J. 73, 82 (2003)).

                                                                       A-0196-17T2
                                      10
"Although we rarely overturn the rejection of a PTI application, the prosecutor's

discretion is not unlimited." Ibid.

      Our Supreme Court has said prior dismissed charges unsupported by

undisputed facts in the record should not factor into the PTI decision. State v.

K.S., 220 N.J. 190, 199 (2015). Here, both the program manager and prosecutor

specifically mentioned defendant's dismissed juvenile charge as indicative of his

lack of amenability to rehabilitation. The State argues the prosecutor did not

rely upon the dismissed charges to render a decision. However, the prosecutor's

recitation of defendant's criminal record states, "[t]he current offense constitutes

the defendant's third interaction with the criminal justice [sic]." Pursuant to

K.S., consideration of a prior dismissed charge "for any purpose" without

substantiation is improper. Ibid. ("[W]e hold that when no such undisputed facts

exist or findings are made, prior dismissed charges may not be considered for

any purpose.").

      Our review of the reasons underlying the prosecutor's initial decision and

subsequent justifications leave us convinced the prosecutor described

defendant's character in a way to fit the crimes charged, rather than consider

whether he was amenable to rehabilitation. Thus, for the reasons that follow,




                                                                            A-0196-17T2
                                        11
defendant was deprived of an individualistic assessment amounting in an abuse

of discretion.

      The prosecutor used factors one, two, seven, nine, and ten to describe

defendant as the principal assailant with the brass knuckles. But, upon appeal

to the trial court, the prosecutor described defendant as merely present and

complicit in the assaults.    Of course, "[a] prosecutor is certainly free to

disbelieve statements presented by defense witnesses and to instead credit the

anticipated contrary testimony of the State's witnesses." State v. Lee, 437 N.J.

Super. 555, 568 (App. Div. 2014). "Moreover, the prosecutor's decision to deny

PTI cannot be invalidated by subsequent events [such as a guilty plea] . . . ." Id.

at 569. However, a prosecutor is not entitled to base a PTI decision on disputed

facts. See, e.g., State v. Ridgway, 208 N.J. Super. 118, 127 (Super. Ct. Law

Div. 1985) (trial court overturned a prosecutor's denial of PTI in part because

the prosecutor treated a police investigation as conclusive and unilaterally

resolved factual disputes). Here, the State changed the theory of its case,

particularly because the State's first recitation of its alleged facts depicted

defendant as a violent criminal and served as the basis to deny PTI. This shows

the prosecutor considered defendant ineligible for PTI no matter his role in the

assault. Treating defendants as per se ineligible based on the crime charged,


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                                       12
without consideration of individual circumstances, is improper. See, e.g., State

v. Baynes, 148 N.J. 434, 445 (1997). Rather, every defendant is eligible for PTI

and is entitled to an individualized assessment of their application.

      The State argues it considered factors three, eight, thirteen, and sixteen as

mitigating ones, but it is difficult to discern how application of those factors

actually worked in favor of defendant's admission.          The State describes

defendant as a violent offender who never finished high school or obtained a

GED, does not have custody of his child, fails to pay child support, cannot hold

a steady job, and smokes marijuana every day. But, described in accordance

with the facts, defendant could not finish high school because he spent his senior

year in jail unable to make bail, enrolled in a GED program, shared custody with

his child's mother, was never ordered to pay child support, held various jobs as

a teenager, and could have benefited from drug counseling.

      Accordingly, the order rejecting defendant's PTI appeal is reversed, and

the matter is remanded for further proceedings. The prosecutor must consider

defendant's PTI application ab initio.

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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                                         13
