                                NOT FOR PUBLICATION WITHOUT THE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-4474-16T3

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

MICHAEL A. WYTANIS, JR.,

     Defendant-Appellant.
____________________________________

                    Argued October 11, 2018 – Decided October 31, 2018

                    Before Judges Nugent and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 16-04-0730.

                    Alan L. Zegas argued the cause for appellant (Law
                    Offices of Alan L. Zegas, attorneys; Alan L. Zegas and
                    Joshua M. Nahum, on the briefs).

                    Cheryl L. Hammel, Assistant Prosecutor, argued the
                    cause for respondent (Bradley D. Billhimer, Ocean
                    County Prosecutor, attorney; Samuel J. Marzarella,
                    Chief Appellate Attorney, of counsel; Cheryl L.
                    Hammel, on the brief).

PER CURIAM
      Defendant Michael A. Wytanis, Jr. appeals from a May 9, 2017 judgment

finding him ineligible for admission to pre-trial intervention (PTI). We affirm.

      The following facts are taken from the record.       In 2005, defendant's

driver's license was suspended for a period of ten years due to multiple DUI

convictions. In 2012, in an effort to circumvent the suspension, defendant

affixed his picture to his deceased brother's identification in order to obtain a

New Jersey driver's license.       Facial recognition software revealed the

discrepancy.    As a result, a complaint-summons charged defendant with

knowingly exhibiting, displaying, or uttering personal identifying information

of another to obtain a New Jersey digital driver's license, N.J.S.A. 2C:21 -

17.2(a); knowingly uttering a writing of another without authorization, which he

knew to be forged and which is or purports to be a part of an issue of money,

securities, postage or revenue stamps, or other instruments, certificates or

licenses issued with the purpose to defraud or injure, N.J.S.A. 2C:21-1(a)(3);

and tampering with public records or information with the purpose to defraud or

injure the New Jersey Motor Vehicle Commission, N.J.S.A. 2C:28-7(a)(1).

Relevant to this appeal, the first charge is a second-degree offense.




                                                                         A-4474-16T3
                                        2
      Defendant completed an application for admission to the PTI program.

The Ocean County PTI director denied the application. The rejection letter

noted defendant had

             reported [four] previous DUI's: [September] 1987,
             [April] 1997, [July] 1999 and [July] 2005. [Defendant]
             reportedly "tried valium [five] or [six] times" from
             1978-1979, used cocaine on [five] or [six] occasions
             between 1983-1985, smoked marijuana socially from
             [his] teens until [February] 1990 and tried mescaline
             "once in 1982 while in the Navy."

Additionally, the letter stated defendant indicated he sought treatment for his

marijuana use in 1985 and alcohol in 1999. The letter gave positive weight to

defendant's willingness to comply with the terms of PTI, but denied his

application "after full consideration of all relevant factors[.]"

      The PTI rejection also noted defendant had received a conditional

discharge in a municipal court matter in 1988, related to a marijuana possession

charge. The conditional discharge stemmed from defendant's arrest following a

traffic stop, during which marijuana was discovered in the glove compartment

of his vehicle. The municipal court records from this traffic stop revealed

defendant was charged with several offenses, including marijuana possession,

but had received a conditional discharge.




                                                                        A-4474-16T3
                                         3
      Defendant contended the conditional discharge erroneously appeared on

his record. He claimed he had no recollection of the disposition or appearing in

municipal court to answer the charge, and claimed he did not receive any

supervisory treatment as a result of the disposition. Defendant contended the

charge was dismissed without condition. Defendant sought post-conviction

relief in municipal court, which in turn vacated the conditional discharge. The

municipal court concluded "the court records documenting [the conditional

discharge] may have been entered in error."

      Defendant informed the PTI director the conditional discharge had been

vacated by the municipal court.      The PTI director indicated the vacated

discharge had no legal significance with respect to PTI eligibility, concluded

defendant had been previously diverted pursuant to Rule 3:23-3(g), and was

ineligible for PTI.

      Defendant did not appeal the PTI determination. Instead, he pled guilty

to third-degree wrongful impersonation, N.J.S.A. 2C:21-17(a)(1). He did not

seek to withdraw his plea. Instead, at his sentencing, defendant requested the

judge reconsider his eligibility and admit him to PTI. Notwithstanding the

procedurally unique nature of defendant's motion, the sentencing judge

addressed it and found him ineligible for PTI because his guilty plea had not


                                                                        A-4474-16T3
                                       4
been vacated and he had previously received a conditional discharge. Defendant

was sentenced to one year of non-custodial probation, assessed a fine, and

required to complete ten hours of community service. This appeal followed.

      Defendant raises the following arguments on appeal:

            POINT ONE

            THE COURT ERRED IN DISREGARDING THE
            FINDINGS OF THE MUNICIPAL COURT THAT A
            CONDITIONAL DISCHARGE HAD LIKELY NOT
            OCCURRED.

            POINT TWO

            THE COURT ERRED IN FINDING THAT A
            CONDITIONAL DISCHARGE WITHOUT ANY
            SUPERVISORY TREATMENT IS AN ABSOLUTE
            BAR TO ENTRY INTO PTI.

            POINT THREE

            THE COURT ERRED IN FINDING THAT A
            VACATED     ERRONEOUS     CONDITIONAL
            DISCHARGE IS AN ABSOLUTE BAR TO ENTRY
            INTO PTI.

            POINT FOUR

            THE COURT ERRED BY FINDING THAT ENTRY
            OF A GUILTY PLEA IS A BAR TO AN APPEAL OF
            A PTI DENIAL.




                                                                      A-4474-16T3
                                      5
                                         I.

      The decision to admit a defendant to PTI is a "quintessentially

prosecutorial function." State v. Roseman, 221 N.J. 611, 624 (2015) (quoting

State v. Wallace, 146 N.J. 576, 582 (1996)). Therefore, the prosecutor's decision

to grant or deny a defendant's PTI application is entitled to great deference. Ibid.

(citing State v. Leonardis, 73 N.J. 360, 381 (1977)). A trial judge may overrule

a prosecutor's PTI determination "only when the circumstances 'clearly and

convincingly establish that the prosecutor's refusal to sanction admission into

the program was based on a patent and gross abuse of . . . discretion.'" Id. at

624-25 (alteration in original) (quoting Wallace, 146 N.J. at 582).

      To establish a "patent and gross abuse of discretion," a defendant must

show the prosecutor's decision "(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" and "that the

prosecutorial error complained of will clearly subvert the goals underlying

[PTI]." Id. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). The

prosecutorial decision must be "so wide of the mark sought to be accomplished

by PTI that fundamental fairness and justice require judicial intervention."




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                                         6
Wallace, 146 N.J. at 582-83 (quoting State v. Ridgway, 208 N.J. Super. 118,

130 (Law Div. 1985)).

      "Thus, the scope of review is severely limited." State v. Waters, 439 N.J.

Super. 215, 225 (App. Div. 2015) (quoting State v. Negran, 178 N.J. 73, 82

(2003)). "Reviewing courts must accord the prosecutor 'extreme deference.'"

Id. at 225-26 (quoting State v. Nwobu, 139 N.J. 236, 246 (1995)). "We must

apply the same standard as the trial court. Therefore, we review the [trial court's

ruling] of the prosecutor's decision de novo." Id. at 226.

                                        II.

      Defendant claims the sentencing judge erred because she disregarded the

municipal court findings, which vacated the conditional discharge. He argues

the municipal court's decision should be afforded greater deference because it

found defendant credible and "acknowledged the infirmity in the municipal

courts [sic] own records, and ultimately vacated the conditional discharge

because the 'court records documenting [the conditional discharge] may have

been entered in error.'"

      "PTI 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.'" Roseman, 221 N.J. at 621 (quoting Nwobu,


                                                                           A-4474-16T3
                                        7
139 N.J. at 240).       "[A]cceptance into PTI is dependent upon an initial

recommendation by the [c]riminal [d]ivision [m]anager and consent of the

prosecutor.    The assessment of a defendant's suitability for PTI must be

conducted under the [g]uidelines for PTI provided in Rule 3:28, along with

consideration of factors listed in N.J.S.A. 2C:43-12(e)." Ibid. Absent evidence

to the contrary, a reviewing court should assume the prosecutor's office has

considered all relevant factors in reaching its PTI determination. Nwobu, 139

N.J. at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981).

      Additionally, N.J.S.A. 2C:43-12(g)(1) limits PTI eligibility for those

having previously received a conditional discharge pursuant to N.J.S.A.

2C:36A-1. Importantly, the statute contemplates an individual may only receive

supervisory treatment once. Ibid. "A defendant charged with a first or second

degree offense . . . should ordinarily not be considered for enrollment in a PTI

program except on joint application by the defendant and the prosecutor."

Pressler & Verniero, Current N.J. Court Rules, § 3:28-1, 1308-¶0.47 (2018) (e-

book). Notwithstanding this presumption, the guidelines establish the procedure

for review of the PTI application:

              [I]n such cases, the applicant shall have the opportunity
              to present to the criminal division manager, and through
              the criminal division manager to the prosecutor, any
              facts or materials demonstrating the applicant's

                                                                          A-4474-16T3
                                         8
             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.

             [Ibid.]

      Defendant does not challenge the denial of PTI on the basis of the N.J.S.A.

2C:43-12(e) factors. Instead, he argues the sentencing judge erred holding he

was ineligible for PTI because he never received supervisory treatment. We

disagree.

      Contrary to defendant's argument, the sentencing judge was not required

to defer to the municipal court determination. Rather, the judge found the

vacation of the conditional discharge had no legal significance to defendant's

PTI eligibility "because the original grant of a conditional discharge in 1988

bars him from PTI regardless of whether the conditional discharge has been

wiped away by a 2016 [m]unicipal [c]ourt [o]rder twenty-seven years later."

      The judge relied on our holding in State v. O'Brien, 418 N.J. Super. 428

(App. Div. 2011). There we reversed an order granting a defendant's admission

to PTI where the defendant had vacated the record of an earlier conditional

discharge.   Id. at 430-31.    We held "where an individual is placed into

supervisory treatment under the conditional discharge statute, N.J.S.A. 2C:36A-



                                                                         A-4474-16T3
                                       9
1, that person is prohibited from later entering into PTI, whether the conditional

discharge is later vacated or not." Id. at 438. We concluded

              denying defendant admission into PTI, even though her
              prior conditional discharge . . . had been vacated, is
              consistent with the legislative intent to bar re-diversion
              under New Jersey's diversionary programs. Defendant
              has once benefited from a conditional discharge. She
              was placed into supervisory treatment in 1990. For
              twenty years, defendant's criminal record did not
              disclose that she had been arrested for the disorderly
              persons offense of possession of marijuana. N.J.S.A.
              2C:36A-1(b). Defendant now seeks the benefit of PTI
              as a result of her indictment for a drug offense, the very
              type of offense for which she received the prior
              conditional discharge. The goals underlying pretrial
              intervention—to deter future criminal conduct and to
              provide a one-time diversion from prosecution—are not
              subverted by the prosecutor's decision. Moreover,
              while it may be that, as a matter of law, defendant's
              conditional discharge for possession of marijuana
              "never happened," it does not follow that it never
              happened as a matter of fact.

              [Id. at 441.]

        Here, relying on the holding in O'Brien, 418 N.J. Super. at 438, the judge

found

              where an individual is placed into supervisory
              treatment under the conditional discharge statute that
              person is prohibited from later entering into PTI,
              whether the conditional discharge is later vacated or
              not. Simply stated, it is the fact that the individual
              previously received supervisory treatment that prevents


                                                                           A-4474-16T3
                                         10
            him or her from re-enrollment into another diversionary
            program [under PTI].

The judge concluded defendant had received a conditional discharge in 1988,

and the fact it was later vacated "does not in any way negate the statutory

prohibition on having two diversionary dispositions." We have no reason to

second guess the judge's findings regarding the conditional discharge.

Regardless of defendant's claim he was never placed into supervisory treatment,

he nonetheless benefited from the conditional discharge for nearly three

decades.

      Moreover, the PTI director's letter set forth defendant's history of

substance abuse, including four DUIs as part of the decision to deny him

admission to the program.      Although the letter indicated the conditional

discharge as a reason for rejection, it was only one factor in the determination.

Also, defendant does not dispute he presented no evidence to rebut the

presumption of ineligibility for PTI on account of being charged with a second-

degree crime. Therefore, the sentencing judge did not abuse her discretion by

denying defendant admission to PTI.

                                      III.

      Lastly, defendant argues the judge erred when she cited his failure to

vacate the guilty plea as a reason to deny admission to PTI. Defendant cites

                                                                         A-4474-16T3
                                      11
State v. Moraes-Pena, 386 N.J. Super. 569, 578-80 (App. Div. 2006), to support

the claim "a defendant does not waive his rights to appeal a PTI denial by

entering a guilty plea."

      Defendant's reliance on Moraes-Pena is misplaced. Although we held a

guilty plea is not a bar to an appeal of a PTI rejection, we noted the guidelines

required "the issue concerning enrollment into PTI shall be resolved before or

at the pretrial conference, and in any event, before a plea or verdict." Id. at 578

(citing Pressler & Verniero, Current N.J. Court Rules, Guideline 6, following R.

3:28 at 971 (2006)). Indeed, since our decision in Moraes-Pena, Rule 3:28-2

now expressly provides "[a]pplications for pretrial intervention shall be made at

the earliest possible opportunity, including before indictment, but in any event

no later than the Initial Case Disposition Conference, unless good cause is

shown or consent by the prosecutor is obtained." Additionally, Rule 3:28-6(d)

provides the denial of an application for admission in PTI remains appealable

from a judgment of conviction "notwithstanding that such judgment is entered

following a plea of guilty."

      Defendant failed to appeal his conviction. Moraes-Pena requires no less.

The trial judge did not err by concluding accordingly.

      Affirmed.


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                                       12
