                                 NOT FOR PUBLICATION WITHOUT THE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-4298-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CYNTHIA NGUYEN,

          Defendant-Appellant.


                   Submitted March 25, 2019 – Decided April 12, 2019

                   Before Judges Gooden Brown and Rose.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No.
                   16-10-1737.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Molly O'Donnell Meng, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Monica L. do
                   Outeiro, Assistant Prosecutor, of counsel and on the
                   brief).

PER CURIAM
      Defendant Cynthia Nguyen appeals from the trial court's denial of her

post-plea motion for admission into the Pretrial Intervention (PTI) program over

the prosecutor's objection. We affirm.

      The relevant facts are accurately summarized in the trial court's cogent

oral decision, as follows:

            [O]n August [7], 2016 Belmar Police were dispatched
            to the Belmar Marina on 10th Avenue to respond to a
            vehicle parked in a travel lane. The vehicle was parked
            facing the wrong direction and [d]ispatch was informed
            that the driver . . . appeared to be asleep or unconscious.

                  When police arrived at the scene . . . defendant
            woke up and immediately fled eastbound in the
            westbound one-way lane on 10th Avenue. . . .
            [D]efendant went through a red light, [and] made a left
            onto Route 35 north. The police activated their
            overhead lights and siren and followed . . . defendant's
            vehicle onto Route 35 north for several blocks. . . .
            [D]efendant ignored several traffic signals and
            committed multiple motor vehicle violations.

                   When . . . defendant finally stopped her vehicle
            she was approached by the pursuing officer with his
            weapon drawn. . . . [D]efendant ignored the officer's
            request to put her hands up. She kept her hands on the
            steering wheel and stared forward. The officer opened
            the driver's door and removed . . . defendant to place
            her under arrest. . . . [D]efendant did not place her
            vehicle in park and it hit the officer's patrol car.

      Thereafter, defendant was charged in a Monmouth County indictment

with second-degree eluding, N.J.S.A. 2C:29-2(b). In September 2017, she pled

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                                         2
guilty to an amended charge of third-degree eluding. In exchange, the State

recommended a two-year probationary sentence and agreed to dismiss all

thirteen motor vehicle summonses issued at the time of defendant's arrest. The

State "ma[de] no promises" regarding defendant's intention to apply for PTI.

      Defendant was thirty-nine years old and unemployed at the time of her

application. During the course of her interview with the PTI investigator,

defendant acknowledged "she was under the influence of her prescription

medication at the time of her arrest" for the present offense. She said she was

diagnosed with depression in 2012, hospitalized for two weeks as a result, and

thereafter prescribed Adderall and Risperdal. In particular, she claimed she

suffered from Post-Traumatic Stress Disorder (PTSD), but "declined to discuss

any of the details of her PTSD."

      The program director denied defendant's application citing, among other

reasons, her "need [for] more intensive supervision than th[e] diversionary

program can provide."       Specifically, "she would benefit from intensive

supervision and counseling." The director noted defendant "appeared to be

having some type of psychological episode as described in the police report"

when she committed the present offense. The director also stated defendant

failed to appear in court for the present offense, and was apprehended only after


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                                       3
she was involved in an incident on a public bus, in which she threatened another

passenger with a screwdriver.

      In a two-page memorandum, the prosecutor adopted the director's

findings, and summarized his reasons for likewise denying defendant 's

admission into the program.      In doing so, the prosecutor cited six of the

seventeen applicable factors set forth in N.J.S.A. 2C:43-12(e).

      Initially, the prosecutor cited the "nature of the offense," N.J.S.A. 2C:43-

12(e)(1), and the "facts of the case," N.J.S.A. 2C:43-12(e)(2), noting the danger

defendant posed "to herself and anyone else who happened to be in her path"

when eluding police. Secondly, the prosecutor cited the "motivation and age of

the defendant," N.J.S.A. 2C:43-12(e)(3), specifying that defendant had failed to

appear in court while released on bail for the present offense, which did "not

inspire confidence that PTI w[ould] be sufficient supervision . . . ."

      Next, the prosecutor quoted 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." N.J.S.A.

2C:43-12(e)(5) (factor five). In citing factor five, the prosecutor reiterated the


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                                        4
director's concern that "[d]efendant has mental health issues that are currently

under[]addressed."

      The prosecutor also cited the "extent to which the applicant's crime

constitutes part of a continuing pattern of anti-social behavior." N.J.S.A. 2C:43-

12(e)(8) (factor eight). Although the prosecutor acknowledged the remoteness

of defendant's six prior theft offenses, which were committed in the late 1990s,

he noted "the volume of [the offenses] demonstrate[d] that the present offense

is not an aberration." The prosecutor also referenced two arrests by the U.S.

Park Police in 2012 and 2013 that remained "open" at the time of her application.

      Finally, the prosecutor cited N.J.S.A. 2C:43-12(e)(14), i.e. "[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 prosecutor found "the

value of supervisory treatment is manifest."

      In mitigation, the prosecutor considered "[d]efendant's tragic personal

history as reported by her" and "her college credits." On balance, however, the

prosecutor determined the factors weighed against her admission into the PTI

program.

      Defendant appealed to the Law Division, primarily contending the

prosecutor denied her application based on a consideration of irrelevant factors.


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                                        5
Pertinent to this appeal, defendant argued the prosecutor improperly considered

factors five and eight. Specifically, defendant claimed her prior theft offenses,

for which she completed unsupervised probation in 1999, were remote. She also

contended the Park Police charges had been dismissed.          Defendant further

argued the prosecutor's rejection "based upon her current mental health issues

was a patent and gross abuse of discretion and a clear error in judgment." She

claimed she had "completed substance abuse and psychological evaluations" and

"[was] complying with what ha[d] been asked of her."

      The trial court upheld the prosecutor's decision to reject defendant's PTI

application. In rendering its decision, the court recognized its very limited scope

of review. See State v. Roseman, 221 N.J. 611, 624-25 (2015). Correctly citing

the legal standards, the court noted it lacked the authority in PTI matters to

substitute its own discretion for that of the prosecutor, even if it disagreed with

the prosecutor's decision. See State v. Nwobu, 139 N.J. 236, 253 (1995). The

court recognized it could reverse a prosecutor's PTI denial only if a defendant

clearly and convincingly demonstrated that the denial represents "a patent and

gross abuse of discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (citations

omitted).




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                                        6
      Citing Nwobu, the court reiterated that to establish a patent and gross

abuse of discretion, a defendant must demonstrate "the prosecutor's decision was

not premised upon a consideration of all relevant factors, was based upon a

consideration of irrelevant or inappropriate factors, or amounted to a clear error

in judgment." 139 N.J at 247 (citation omitted); see also Roseman, 221 N.J. at

625. Importantly, the trial court understood that a patent and gross abuse of

discretion also required that the "[c]ourt must additionally find that the

prosecutorial error complained of will clearly subvert the goals underlying

[PTI]." See State v. Bender, 80 N.J. 84, 93 (1979).

      Applying these well-established standards, the trial court initially agreed

with defendant that the Park Police charges should not have been considered by

the prosecutor in finding factor eight because no formal disposition was

available for those offenses. Nonetheless, the court recognized that in finding

defendant exhibited a pattern of anti-social behavior, the prosecutor also cited

defendant's six theft offenses from the mid-1990s.

      Addressing defendant's challenge to the prosecutor's assessment of factor

five, the court noted the State did not dispute that defendant completed substance

abuse and mental health evaluations.         Rather, the court recognized the




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                                        7
prosecutor determined defendant's "refusal to discuss her PTSD with the PTI

investigator" suggested her mental health issues were under addressed.

      The court also considered defendant's explanation that she eluded police

"reactively and not deliberately." The court found, however, that "defendant

still fled the scene with reckless disregard for her safety and the safety of

others." Ultimately, the court determined the prosecutor's rejection was not a

patent and gross abuse of discretion, nor was it arbitrary, capricious or

unreasonable. Accordingly, the court denied defendant's appeal.

      Having been sentenced by the trial court to a probationary term of two

years, consistent with her plea agreement, defendant now solely appeals the trial

court's PTI ruling. She raises the following point for our consideration:

            POINT I

            THE PROSECUTOR'S DECISION TO REJECT
            [DEFENDANT]'S      PTI     APPLICATION
            CONSTITUTED A PATENT AND GROSS ABUSE OF
            DISCRETION.

            A.      The Prosecutor Inappropriately Considered
            Irrelevant Factors in Rejecting [Defendant]'s
            Application.

            B. The Prosecutor's Decision Amounted To A Clear
            Error In Judg[]ment And Subverted The Goals of PTI.




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                                       8
      In particular, defendant claims "[t]he prosecutor's handling of . . . PTI

factors [five and eight] constituted an abuse of discretion because he

inappropriately considered [defendant]'s misdemeanor convictions from the

1990s, two U.S. Park Police arrests, and her mental health problems as reasons

for rejection."   She seeks reversal of the court's order denying her PTI

application. In the alternative, defendant contends a remand is necessary for the

prosecutor to further consider her application. Based on our review of the record

and applicable law, we find her arguments unpersuasive.

      We apply the same standard of review as the trial court, and review the

court's decision de novo. State v. Waters, 439 N.J. Super. 215, 226 (App. Div.

2015). Guided by our "severely limited" review, State v. Negran, 178 N.J. 73,

82 (2003), we determine the prosecutor cogently articulated several reasons for

denying PTI, and his consideration of irrelevant factors does not warrant a

reversal or a remand.

      Regarding factor eight, we agree with the trial court that the prosecutor

improperly considered defendant's two "open" Park Police charges because

defendant's criminal history report indicates there is "no disposition available"

for both charges, and defendant maintains they were dismissed. See State v.

K.S., 220 N.J. 190, 199 (2015) (holding a PTI applicant's "prior dismissed


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                                       9
charges may not be considered for any purpose" where the facts related to the

arrest are in dispute, or have not been determined after a hearing).

      Arguably, if the Park Police charges were the only basis for the

prosecutor's finding of factor eight, we might consider remanding the matter for

the prosecutor to reconsider defendant's application after determining the

disposition of those charges. Here, however, the prosecutor also considered the

"volume" of defendant's prior theft offenses, even though he recognized they

were committed more than twenty years before commission of the present

offense.

      Defendant claims her prior theft offenses were so remote they "cannot

constitute a 'continuing pattern' of anti-social behavior."      To support her

argument, defendant cites our Supreme Court's decision in Negran. Defendant's

argument is misplaced.

      In Negran, the prosecutor rejected the defendant's PTI application for a

third-degree eluding offense, because his "driving infractions spanned a period

of seventeen years, and ten years had elapsed since [the] defendant's last motor

vehicle offense." 178 N.J. at 79. Further, the defendant's "prior [driving while

intoxicated conviction] had occurred more than thirteen years before" his PTI




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                                       10
application. Ibid. The Court thus determined the prosecutor improperly relied

on defendant's remote motor vehicle violations. Id. at 85.

      Unlike the present matter, however, the defendant in Negran had

"voluntar[ily] participat[ed] in recent intensive and ongoing alcohol dependency

rehabilitation, . . . [and] had never been convicted of . . . any disorderly persons

offense[s.]" Id. at 79. Also unlike the present matter, the issue in Negran was

the remoteness of motor vehicle violations. Id. at 85. The Court did not consider

the remoteness of multiple prior misdemeanor or disorderly persons offenses.

Accordingly, defendant has not demonstrated the prosecutor inappropriately

considered factor eight in rejecting her application here.

      Nor do we discern any error in the prosecutor's consideration of

defendant's mental health issues in finding factor five. See K.S., 220 N.J. at 202

("Because mental health issues impact [a PTI] assessment, the prosecutor is

required to consider a defendant's mental illness."). Despite defendant's efforts

to treat her PTSD medically, defendant candidly acknowledged the commission

of the present offense occurred while "she was under the influence of her

prescription medication[,]" yet she was reluctant to discuss her PTSD condition.

Under these circumstances, defendant's ongoing mental health issues present




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                                        11
challenges that are best addressed under the umbrella of probation's supervisory

services and not the limited services provided by the PTI program.

      We therefore conclude, as the trial court found, defendant failed to sustain

her "heavy burden" of demonstrating the prosecutor's rejection of her PTI

application was a patent and gross abuse of discretion. Even if the prosecutor

inappropriately considered factors five and eight, defendant did not demonstrate

the denial "clearly subvert[ed] the goals underlying [PTI]." Bender, 80 N.J. at

93. Defendant failed to make such a showing and failed to demonstrate that a

remand is required because the denial was "arbitrary, irrational, or otherwise an

abuse of discretion." Wallace, 146 N.J. at 583 (citation omitted). Moreover, a

remand would serve no useful purpose, ibid., where, as here the prosecutor's

consideration of all other factors is amply supported by the evidence in the

record.

      Affirmed.




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                                       12
