                        NOT FOR PUBLICATION WITHOUT THE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-4462-15T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAVONNE HORTON,

     Defendant-Appellant.
_________________________________________

              Argued July 6, 2017 – Decided July 18, 2017

              Before Judges Yannotti and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              15-07-1006.

              Michael   Denny,   Assistant   Deputy   Public
              Defender, argued the cause for appellant
              (Joseph E. Krakora, Public Defender, attorney;
              Mr. Denny, of counsel and on the brief).

              Frances Tapia Mateo, Assistant Prosecutor,
              argued the cause for respondent (Esther
              Suarez, Hudson County Prosecutor, attorney;
              Ms. Mateo, on the brief).

PER CURIAM

        Defendant pled guilty to aggravated assault, contrary to

N.J.S.A. 2C:12-1(b)(7), causing significant bodily injury, and the
trial court sentenced defendant to three years of probation.

Defendant appeals from the judgment of conviction dated May 17,

2016, and argues that the trial court erred by affirming the

prosecutor's denial of his application for admission to pre-trial

intervention (PTI).      We affirm.

       A Hudson County grand jury charged defendant with first-

degree    robbery,    N.J.S.A.    2C:15-1   (count   one);   second-degree

aggravated assault, causing serious bodily injury, N.J.S.A. 2C:12-

1(b)(1)   (count     two);   third-degree   burglary,   N.J.S.A.   2C:18-2

(count three); and fourth-degree kidnapping, N.J.S.A. 2C:13-1(b)

(count four). On December 3, 2015, defendant pled guilty to count

two,   which   was    amended    to   third-degree   aggravated    assault,

attempting to cause significant bodily injury, N.J.S.A. 2C:12-

1(b)(7). The State agreed to recommend a term of non-custodial

probation and dismissal of the other charges.

       At the plea hearing, defendant admitted that on December 22,

2014, he punched J.I. with the intent to cause him significant

bodily injury. Defense counsel asked the court to allow defendant

to apply for admission to PTI as part of his presentence interview.

The judge agreed that defendant could submit a PTI application.

The judge stated, however, there was "no guarantee" he would be

accepted into the program.



                                       2                            A-4462-15T3
     Thereafter,       defendant    submitted   an     application     to    the

prosecutor for admission to PTI. By letter dated January 11, 2016,

the Assistant Manager of the Criminal Division, Hudson County,

advised she was recommending denial of defendant's application.

On January 26, 2016, Assistant Prosecutor Thomas J. Carroll wrote

to the Assistant Manager of the Criminal Division and stated that

her recommendation was accepted. Carroll sent a copy of his letter

to the court and to defendant's attorney.

     In his letter, Carroll noted that defendant had been charged

with multiple first- and second-degree offenses of a violent and

assaultive    nature,     making    him   presumptively        ineligible    for

admission    to    PTI.   Carroll   stated   that    there   was   nothing    in

defendant's       background   or   character   that     was     "unusual"    or

"extraordinary," which would overcome the presumption against his

admission to PTI.

     Defendant appealed the prosecutor's determination to the

trial court, arguing that the prosecutor erred by considering

certain factors when deciding whether he should be admitted to

PTI. On March 21, 2016, the judge heard oral arguments on the

appeal. The judge remanded the matter to the prosecutor's office

to clarify whether in denying defendant's application, the State

had considered defendant's inability to pay court-imposed fines,

his dismissed contacts with the criminal justice system, and his

                                      3                                A-4462-15T3
admitted use of marijuana. The judge asked the prosecutor to

determine if these factors were not considered, whether the State

still took the position that defendant should not be admitted to

PTI.

       On March 30, 2015, Carroll wrote to the judge and stated that

in rejecting defendants' application for admission to PTI, the

State had not given any weight to defendant's ability or inability

to pay court-imposed fines, his prior municipal court history, or

his admitted use of marijuana. Carroll also stated that admitting

defendant to PTI, after he entered a valid guilty plea, would be

inconsistent with the PTI guidelines and relevant case law.

       The judge considered the matter again on April 29, 2016.

After hearing oral arguments, the judge placed her decision on the

record. The judge noted that under a recent amendment to the PTI

statute, a defendant could plead guilty to a second-degree offense

and still be admitted to PTI.

       The judge asked the assistant prosecutor if defendant had

been charged with a third-degree offense, whether the State would

still deny him admission to PTI. The assistant prosecutor replied

that based on the nature of the offense, which was violent and

assaultive, the State would deny defendant's application. The

judge then ruled that the prosecutor's determination was not a

patent and gross abuse of discretion.

                                  4                          A-4462-15T3
     The judge sentenced defendant on count two to three years of

probation and dismissed the other counts of the indictment. The

judge imposed fees and penalties and ordered defendant not to have

any contact with the victim or the victim's family. The judge

stated that if defendant complied with all of the conditions of

probation, he could apply to terminate probation after one and

one-half years. The judge entered a judgment of conviction dated

May 17, 2016. This appeal followed.

     On appeal, defendant raises the following single point:

            POINT I

            BECAUSE THE PROSECUTOR AND PTI DIRECTOR
            CONSIDERED   INAPPROPRIATE  FACTORS,   THEIR
            REFUSALS TO ALLOW DEFENDANT TO ENROLL IN PTI
            EACH CONSTITUTE A PATENT AND GROSS ABUSE OF
            DISCRETION[.]

     "PTI   is   essentially   an   extension   of   the   [prosecutor's]

charging decision, therefore the decision to grant or deny 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)). Accordingly, the prosecutor's decision to grant or

deny a defendant's application for PTI "is entitled to a great

deal of deference." Ibid. (citing State v. Leonardis, 73 N.J. 360,

381 (1977)).

     A trial court may only reverse a prosecutor's PTI decision

"when the circumstances 'clearly and convincingly establish that

                                    5                             A-4462-15T3
the prosecutor's refusal to sanction admission to the program was

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

624-25 (quoting Wallace, supra, 146 N.J. at 582). The denial of a

defendant's      PTI   application   is    a    patent   and   gross   abuse    of

discretion if the prosecutor failed to consider all relevant

factors,   the    prosecutor   based      the   decision   on   irrelevant      or

inappropriate factors, or the decision constitutes "a clear error

of judgment." Id. at 627 (quoting State v. Nwobu, 139 N.J. 236,

247 (1995)).

     Defendant argues that the prosecutor's decision to deny his

application for admission to PTI was a patent and gross abuse of

discretion because it was based upon unproven facts and inferences

of guilt, which are not supported by the record. Defendant asserts

that the prosecutor based his decision on the victim's version of

the incident, as recounted in the pre-sentence report, rather than

on the facts he admitted to at the plea hearing.

     Admission to PTI is governed by N.J.S.A. 2C:43-12(e), which

sets forth seventeen factors the prosecutor should consider in

determining whether a defendant should be diverted to PTI. The

statutory factors include "the nature of the offense," "the facts

of the case," and whether the crime charged "is of an assaultive

or violent nature[.]" N.J.S.A. 2C:43-12(e)(1), (2), and (10).



                                       6                                 A-4462-15T3
      Admission to PTI is also governed by Rule 3:28 and the

guidelines adopted by the Supreme Court. Guideline 3 requires the

prosecutor to consider the statutory criteria in N.J.S.A. 2C:43-

12(e) and other relevant circumstances, including the nature of

the   offense.     Pressler   &   Verniero,      Current   N.J.   Court    Rules,

Guideline 3(i) on R. 3:28, at 1235 (2017). There is a presumption

against    admitting       "defendants     who     have    committed      certain

categories of offenses" into PTI. State v. K.S., 220 N.J. 190, 198

(2015) (citing State v. Baynes, 148 N.J. 434, 442 (1997)).

      A person who has deliberately committed a crime of violence

or threatened violence against another person "should generally"

not be admitted to PTI. Ibid. (citing Pressler & Verniero, Current

N.J. Court Rules, Guideline 3(i) on R. 3:28, at 1169 (2015)). A

defendant can overcome the presumption against admission if the

defendant shows "compelling reasons" for admission to PTI. Ibid.

(citing Pressler & Verniero, supra, Guideline 3(i) on R. 3:28, at

1169 (2015)).

      In   count    one,   defendant     was     charged   with   first-degree

robbery, contrary to N.J.S.A. 2C:15-1. The indictment alleged that

during the commission of a theft, defendant inflicted serious

bodily injury on the victim, J.I. In count two, defendant was

charged    with    second-degree     aggravated      assault,     contrary       to

N.J.S.A. 2C:12-1(b)(1). The indictment alleged that defendant

                                       7                                  A-4462-15T3
purposely     attempted    to   cause     serious       bodily    injury   to   J.I.

Defendant     also   was   charged   in       count    three    with   third-degree

burglary, contrary to N.J.S.A. 2C:18-2; and in count four with

fourth-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b).

      As we noted previously, in December 2015, defendant pled

guilty to count two, which was amended to charge third-degree

aggravated assault, attempting to cause significant bodily injury,

contrary to N.J.S.A. 2C:12-1(b)(7). The State agreed to dismiss

the other charges.

      It is well established that when a prosecutor and PTI program

director consider a PTI application, they "may not infer guilt

from the sole fact that a defendant was charged, where the charges

were dismissed." K.S., supra, 220 N.J. at 199 (citing State v.

Brooks, 175 N.J. 215, 229 (2002)). In this case, however, the

prosecutor properly considered the original charges in counts one,

three, and four, because when the prosecutor denied defendant's

PTI application, those charges had not yet been dismissed.

      Indeed, the charges were not formally dismissed until after

the   court    sentenced    defendant         and     entered    the   judgment    of

conviction. As noted, in count one, defendant was charged with

committing a crime of violence against another person. In deciding

whether defendant should be admitted to PTI, the prosecutor did



                                          8                                 A-4462-15T3
not err by considering the facts and circumstances of that offense,

which were developed during the investigation.

     Even if the prosecutor was limited to considering only the

amended charge to count two, defendant's admission at the plea

hearing    that    he   punched   J.I.   with   the   intent   to    cause    him

significant bodily injury was sufficient to establish that he

committed a crime of violence against another person. Based on

that admission, a presumption arose against his admission to PTI.

     Defendant did not provide compelling reasons to overcome the

presumption. We therefore conclude that the trial court did not

err by finding that the prosecutor's decision to deny defendant's

application was not a patent and gross abuse of discretion.

     We    have    considered     defendant's    remaining     arguments      and

conclude    that    they   are    without    sufficient   merit     to   warrant

discussion in this opinion. R. 2:11-3(e)(2).

     Affirmed.




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