                                NOT FOR PUBLICATION WITHOUT THE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-3132-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.M.M.,1

     Defendant-Appellant.
__________________________

                    Submitted March 6, 2019 – Decided April 2, 2019

                    Before Judges Koblitz and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment No. 17-06-
                    0300.

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

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Paul H. Heinzel, Assistant
                    Prosecutor, of counsel and on the brief).

1
     We use initials to protect defendant's privacy.
PER CURIAM

      Defendant R.M.M. appeals from a February 1, 2018 judgment of

conviction. Specifically, she appeals from the denial of her application for

admission into the pretrial intervention program (PTI). For the reasons that

follow, we vacate the denial and remand for reconsideration of defendant's PTI

application.

      Defendant was charged with third-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(3)(A), and applied for PTI. The Criminal Division Manager (CDM), who

also serves as the PTI director, denied her application. Initially, the State did

not oppose defendant's application, but subsequently changed its position and

supported denial of PTI.

      Defendant appealed the denial of PTI to the Law Division. On September

12, 2017, the judge denied defendant's PTI application. Thereafter, defendant

pleaded guilty to resisting arrest and was sentenced to one year probation.

      The facts giving rise to the resisting arrest charge are straightforward. The

Hillsborough Police Department responded to a call from a local hotel, reporting

a man kicked in the hotel's office door and tried to assault the manager. The

caller reported a man and a woman ran down the street and were hiding in the




                                                                           A-3132-17T4
                                        2
nearby woods. The officers searched the woods for the two individuals and

found a man and defendant.

      Defendant was charged with violently resisting the officers who tried to

arrest her. No other charges were lodged against her.

      At the time she applied for PTI, defendant was eighteen years old and

lived at home with her parents and younger brothers. Defendant graduated from

high school and was saving money to apply to college. She planned to attend a

local community college to study environmental science and then transfer to a

four-year university. Defendant sought admission to the PTI program because

she was afraid a criminal conviction would ruin her chance of being admitted to

college.

      When defendant applied for PTI, she was working full-time at Starbucks.

Defendant held various part-time jobs since she was sixteen years old. Her prior

experience with the criminal justice system involved three juvenile

adjudications. She had been placed on probation for those juvenile matters. The

offense in this case was defendant's only adult arrest and conviction.

      In her application for PTI, defendant said she was not the person who

attempted to break into the hotel and assault the manager. Defendant explained

she needed counseling to avoid associating with individuals who had criminal


                                                                         A-3132-17T4
                                       3
tendencies. According to defendant, she was young and impressionable when

the offense occurred and exercised poor judgment regarding the company she

kept.    Regarding the failure to follow the officers' instruction, defendant

explained she was scared because the officers pointed guns and a Taser at her.

In addition, defendant said she refused to follow the officers' instructions

because the ground was swampy and covered with dense brush and poison ivy.

        The CDM cited the "violent nature of the offense" and defendant's prior

juvenile record as reasons for denying PTI. The CDM found that defendant's

"prior record indicates a behavioral pattern not conducive to short -term

rehabilitation and indicates PTI will not serve as a sufficient sanction to deter

future criminal behavior. Furthermore, the public interest would best be served

by her offense being prosecuted, not diverted."         The prosecutor recited

defendant's non-compliance with the conditions of her juvenile probation as a

reason for denial of PTI.

        The Law Division judge upheld the denial of defendant's PTI application,

finding the CDM "did not fail to consider relevant factors of defendant's

background," the CDM's reasons for rejection of defendant's application were

"legally sufficient," and the denial was not an abuse of discretion. In addition,

the judge concluded the State "conducted a thorough review of all the relevant


                                                                         A-3132-17T4
                                        4
factors . . . . , including [d]efendant's traits and characteristics . . . ." The judge

determined defendant failed to demonstrate the prosecutor's adoption of the

CDM's recommended rejection of PTI was a patent and gross abuse of

discretion.

        Defendant raises the following argument on appeal:

              THE TRIAL COURT ERRED IN FINDING THE
              STATE'S   DENIAL     OF    DEFENDANT'S
              APPLICATION FOR PRE-TRIAL INTERVENTION
              WAS NOT AN ABUSE OF DISCRETION.

        Our review of an appeal from denial of PTI is limited. State v. Negran,

178 N.J. 73, 82 (2003). If a prosecutor's decision demonstrates consideration of

all appropriate factors, it will not be disturbed absent a showing that it was a

patent and gross abuse of discretion. State v. K.S., 220 N.J. 190, 200 (2015).

However, if the prosecutor – or the program director, on whose decision the

prosecutor relies – fails to consider all relevant factors, a remand is appropriate.

Ibid.

        A defendant is entitled to present facts demonstrating his or her

"amenability to the rehabilitative process, showing compelling reasons

justifying the applicant's admission and establishing that a decision against

enrollment would be arbitrary and unreasonable." State v. Coursey, 445 N.J.

Super. 506, 510 (App. Div. 2016) (quoting Guidelines for Operation of Pretrial

                                                                               A-3132-17T4
                                          5
Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules,

Guideline 3(i), following R. 3:28 at 1190 (2016)). A PTI program director and

a prosecutor are required to "actually consider the merits of the defendant's

application." K.S., 220 N.J. at 198 (quoting State v. Green, 413 N.J. Super. 556,

561 (App. Div. 2010)).

      Where a defendant has demonstrated an abuse of discretion, but not the

higher standard of showing a patent and gross abuse of discretion, a remand is

proper.

            When a reviewing court determines that the
            'prosecutor's decision was arbitrary, irrational, or
            otherwise an abuse of discretion, but not a patent and
            gross abuse' of discretion, the reviewing court may
            remand to the prosecutor for further consideration.
            Remand is the proper remedy when, for example, the
            prosecutor considers an inappropriate factor, or fails to
            consider relevant factors.

            [Id. at 200 (citation omitted) (quoting State v. Dalglish,
            86 N.J. 503, 509-10 (1981)).]

      In this case, we conclude a remand is appropriate because the CDM and

the prosecutor failed to give consideration to defendant's individual

characteristics, including the following: her small stature relative to the officers

who made the arrest; her youth at the time of the offense; consideration that her

offense was unrelated to the property damage and attempted assault of the hotel


                                                                            A-3132-17T4
                                         6
manager; her amenability to rehabilitation; her need for counseling to address

her judgment in selecting acquaintances; her lack of any prior adult offenses;

her strong family bond; her graduation from high school; her desire to attend a

four-year college; and her attaining a full-time job after graduating high school

so she could enroll in college. Neither the CDM nor the prosecutor analyzed the

list of factors set forth in N.J.S.A. 2C:43-12(e), which are required to be

considered in making a PTI recommendation.             See K.S., 200 N.J. at 198.

Defendant's PTI application was rejected almost exclusively on her three prior

juvenile adjudications without consideration of other relevant factors.

      Accordingly, we remand this case to the CDM and the prosecutor to

reevaluate   defendant's   application,       considering   defendant's   individual

characteristics and circumstances. In so holding, we do not imply any view as

to whether defendant should be admitted to PTI.

      Vacated and remanded. We do not retain jurisdiction.




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