                                NOT FOR PUBLICATION WITHOUT THE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-5488-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JEFFREY J. JONES, a/k/a
JEFF JONES,

     Defendant-Appellant.
________________________

                    Submitted October 17, 2018 – Decided November 13, 2018

                    Before Judges Fuentes and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Indictment No. 15-03-0513.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Laura B. Lasota, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Joseph D. Coronato, Ocean County Prosecutor,
                    attorney for respondent (Samuel J. Marzarella, Chief
                    Appellate Attorney, of counsel and on the brief).

PER CURIAM
      Defendant Jeffrey J. Jones applied for admission to Pretrial Intervention

(PTI) after he was charged in an indictment with third-degree receiving stolen

property, a shotgun, N.J.S.A. 2C:20-7, third-degree unlawful possession of a

shotgun, N.J.S.A. 2C:39-5(c)(1), and third-degree possession of a controlled

dangerous substance, heroin, N.J.S.A. 2C:35-10(a)(1).       The Ocean County

Prosecutor's Office (OCPO) rejected the application. Defendant appealed the

rejection and the Law Division denied his appeal. Defendant pleaded guilty to

third-degree unlawful possession of a shotgun and received a one-year

probationary sentence.1 Defendant appeals from the order denying his appeal

from the OCPO's rejection of his PTI application. We affirm.

      The pertinent facts are set forth in the OCPO's October 27, 2015 letter

rejecting defendant's request for admission to PTI. A confidential informant

reported to the Manchester Township Police Department that an individual, later

identified as Gerard Pasqualini, sold heroin from a local motel room. The

confidential informant made two undercover heroin buys from Pasqualini in the

presence of other individuals in the motel room. The confidential informant

advised the police that Pasqualini had recently obtained access to a shotgun.


1
 When defendant pleaded guilty, he was also separately charged in a complaint
with third-degree unlawful possession of heroin with intent to distribute,
N.J.S.A. 2C:35-5(b)(1).
                                                                         A-5488-16T3
                                       2
      Following the issuance of a search warrant, the police entered the motel

room where they found Pasqualini, defendant and another individual, and seized

a quantity of heroin. The investigation further revealed defendant possessed

heroin on his person and lived in another room at the motel. The police obtained

consent to search that room from defendant's brother, Francis M. Jones

(Francis),2 who also occupied that room. The police found a shotgun under

defendant's bed. Francis told the investigating officers the shotgun belonged to

defendant. It was later determined the shotgun had been stolen from a police

officer's vehicle.

      According to Francis, defendant claimed he bought the shotgun for $450.

Francis also said he saw defendant put the shotgun under the bed. Pasqualini

told the investigating officers he received the shotgun from Adam Sanchez and

sold it to defendant for $450.

      Another motel resident, Francis J. Juliano, consented to a search of his

room. The police found a quantity of heroin and currency. Juliano explained

that he and defendant bought heroin together and shared the cost. When asked

about a shotgun, Juliano "guess[ed]" it was in defendant's motel room. Juliano


2
  Because defendant and Francis M. Jones share a surname, we refer to the latter
as "Francis" for clarity and ease of reference. We intend no disrespect in doing
so.
                                                                        A-5488-16T3
                                       3
told the police he had seen defendant "walk[] over to the bed" in defendant's

motel room "and pull[] a shotgun out."

      An Ocean County Grand Jury returned a twenty-five count indictment

separately charging Sanchez (counts one through nine), Pasqualini (counts ten

through seventeen), Francis (counts eighteen through twenty), defendant (counts

twenty-one through twenty-three), and Juliano (counts twenty-four through

twenty-five), with various controlled dangerous substance, burglary, theft and

weapons offenses. Defendant applied for admission to PTI.

      In its October 27, 2015 letter rejecting defendant's application,3 the OCPO

determined defendant was not an appropriate candidate for PTI based on the

nature of the offenses charged, N.J.S.A. 2C:43-12(e)(1), the facts of the case,

N.J.S.A. 2C:43-12(e)(2), the motivation and age of defendant, N.J.S.A. 2C:43-



3
  The record does not show that the Criminal Division Manager reviewed and
made a recommendation concerning defendant's PTI application as required by
Rule 3:28-3(d). The determination of a defendant's suitability for PTI requires
compliance with the applicable rules, guidelines and statutes, State v. Rizzitello,
447 N.J. Super. 301, 311 (App. Div. 2016), and judges considering appeals from
prosecutors' PTI application decisions must ensure such compliance. We do not
address the effect of the Criminal Division Manager's apparent failure to make
the required recommendation here only because defendant does not contend the
failure requires reversal of the court's decision, and we otherwise conclude the
court correctly found the prosecutor's rejection of defendant's PTI application is
supported by the record and does not constitute a patent and gross abuse of
discretion.
                                                                           A-5488-16T3
                                         4
12(e)(3), the needs and interests of the victim and society, N.J.S.A. 2C:43-

12(e)(7), the value of supervisory treatment would be outweighed by the public

need for prosecution, N.J.S.A. 2C:43-12(e)(14), defendant's participation would

adversely affect the prosecution of Francis, N.J.S.A. 2C:43-12(e)(16), and the

harm done to society by abandoning criminal prosecution would outweigh the

benefit to society, N.J.S.A. 2C:43-12(e)(17). The prosecutor afforded "positive

weight to the fact that defendant does not have any convictions" and was not

charged with "a crime of violence," but determined they were "outweighed by

the reasons against admission."

      The Law Division denied defendant's appeal from the OCPO's rejection

decision, finding defendant did not establish the decision constituted a patent

and gross abuse of discretion. This appeal followed.

      Defendant presents the following argument:

            POINT I

            THE    PROSECUTOR'S     REJECTION    OF
            DEFENDANT'S PTI APPLICATION CONSTITUTED
            A PATENT AND GROSS ABUSE OF DISCRETION
            BECAUSE THE PROSECUTOR FAILED TO
            CONSIDER ALL OF THE RELEVANT FACTORS
            AND    CONDUCT      AN   INDIVIDUALIZED
            EVALUATION OF DEFENDANT, RESULTING IN A
            CLEAR   ERROR    OF   JUDGMENT    WHICH
            SUBVERTED THE GOALS UNDERLYING THE PTI
            PROGRAM.

                                                                       A-5488-16T3
                                      5
      "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.'" State v. Roseman, 221 N.J. 611, 621 (2015)

(quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). In determining whether to

admit a defendant into PTI, a prosecutor must "make an individualized assessment

of the defendant considering [the defendant's] amenability to correction and

potential responsiveness to rehabilitation." Id. at 621-22 (citations and internal

quotation marks omitted). "A determination for suitability and participation in

the PTI program must be made 'under the Guidelines for PTI provided in Rule

3:28, along with consideration of [the seventeen non-exhaustive] factors listed

in N.J.S.A. 2C:43-12(e).'" Rizzitello, 447 N.J. Super. at 311 (quoting Roseman,

221 N.J. at 621).

      However, "PTI is essentially an extension of the charging decision, [and]

therefore the decision to grant or deny PTI is a 'quintessentially prosecutorial

function,'" Roseman, 221 N.J. at 624 (quoting State v. Wallace, 146 N.J. 576,

582 (1996)), over which a prosecutor exercises "broad discretion," State v. K.S.,

220 N.J. 190, 199 (2015). "Prosecutorial discretion in this context is critical for

two reasons. First, because it is the fundamental responsibility of the prosecutor

to decide whom to prosecute, and second, because it is a primary purpose of PTI


                                                                           A-5488-16T3
                                        6
to augment, not diminish, a prosecutor's options." Nwobu, 139 N.J. at 246

(quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)).

      A court's review of a prosecutor's decision denying a defendant admission

into PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Reversal of

a prosecutor's decision is limited to only "those cases where needed 'to check [ ]

the most egregious examples of injustice and unfairness.'" State v. Lee, 437 N.J.

Super. 555, 563 (App. Div. 2014) (internal quotation marks omitted) (quoting

Negran, 178 N.J. at 82).

      "Trial courts may overrule a prosecutor's decision to accept or reject a PTI

application 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."'" Roseman, 221 N.J. at 624-25 (citations

omitted); see also R. 3:28-6(b)(1).     To establish a patent and gross abuse of

discretion, a defendant must establish by clear and convincing evidence that the

prosecutor's rejection 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]. . . . In order for such an abuse
             of discretion to rise to the level of "patent and gross," it
             must further be shown that the prosecutorial error
             complained of will clearly subvert the goals underlying
             Pretrial Intervention.

                                                                             A-5488-16T3
                                          7
               [Rizzitello, 447 N.J. Super. at 313 (quoting Roseman,
               221 N.J. at 625).]

A defendant must establish that the prosecutor's decision "has gone so wide of

the mark sought to be accomplished by PTI that fundamental fairness and justice

require judicial intervention." State v. Watkins, 193 N.J. 507, 520 (2008) (citation

omitted).

         Measured against this standard and based on the record, we discern no abuse

of discretion in the prosecutor's rejection of defendant's PTI application, let alone a

patent and gross abuse of discretion. See Roseman, 221 N.J. at 625. We are

therefore convinced the court correctly rejected defendant's challenge to the

prosecutor's decision denying defendant admission into PTI.

         Defendant argues the OCPO's decision constituted a patent and gross abuse

of discretion because it was not based on an individualized assessment of defendant

and his personal factors demonstrating his amenability to rehabilitation. Defendant

argues that although the OCPO relied on seven of the statutory factors enumerated

in N.J.S.A. 2C:43-12(e), its decision constituted a patent and gross abuse of

discretion because it "based its decision predominately on the nature and facts of the

case."

         The OCPO is "expected, in the appropriate exercise of [its] discretion over

PTI that is subject to judicial review, to examine all pertinent facts and evidence

                                                                               A-5488-16T3
                                          8
presented bearing on the PTI criteria, including 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)." Lee, 437 N.J.

Super. at 568. The OCPO fulfilled that expectation here. We find no abuse of

discretion in the OCPO's reliance on the circumstances surrounding defendant's

commission of the crimes, or the nature of his offenses, to support its determination

that the value of supervisory treatment was outweighed by the need for prosecution,

the harm to society by abandoning criminal prosecution outweighed the benefit to

society of supervised treatment and the needs of the victim and society required

prosecution. The weighing process required to assess these factors is necessarily

dependent on the facts surrounding the commission of defendant's crimes, as well as

the nature of the charges against him. Those facts included defendant's possession

of a stolen police officer's shotgun in a motel where heroin was distributed and

defendant purchased and used heroin.           The OCPO properly considered that

defendant unlawfully possessed a stolen weapon under those circumstances to

support its rejection of his PTI application. See, e.g., State v. Motley, 369 N.J. Super.

314, 321-23 (App. Div. 2004) (finding law enforcement policy concerning need to

prosecute individuals possessing unlawful assault weapons under circumstances

permitting their use or misuse supports decision denying PTI admission).




                                                                                A-5488-16T3
                                           9
      In addition, the OCPO did not rely exclusively on the facts of the case or the

nature of the offenses in its finding and analysis of the factors supporting its decision.

For example, in its assessment of the motivation and age of the defendant, N.J.S.A.

2C:43-12(e)(3), the OCPO noted defendant's history of substance abuse and

multiple admissions to a treatment center "for short periods of treatment," but

found defendant lacked motivation because he failed to comply with "the latest

recommendation" that he "attend and complete" a Salvation Army program,

"and the State has no documentation of defendant doing so."

      Defendant argues the OCPO's reliance on his purported lack of motivation

is contradicted by evidence showing he participated in drug treatment

subsequent to his arrest and took other steps, including removing himself from

the living situation he contends resulted in his criminal conduct. As noted,

however, the OCPO acknowledged defendant participated in multiple short-term

treatment programs, but found he lacked motivation because he failed to follow

the most recent recommendation for treatment. Defendant did not dispute the

recommendation was made or that he failed to comply with it. OCPO's reliance

on defendant's lack of motivation as a factor is therefore fully supported by the

record.




                                                                                 A-5488-16T3
                                          10
      Defendant also argues the OCPO could not properly rely on the possible effect

of his admission to PTI on the prosecution of Francis as a factor under N.J.S.A.

2C:43-12(e)(16) supporting its rejection decision. He claims his admission to PTI

could not affect Francis's prosecution because Francis was admitted to PTI and "was

not prosecuted." The claim is undermined by the record.

      Defendant and Francis were each charged with third-degree theft by receiving

stolen property and third-degree unlawful possession of a weapon based on the

shotgun recovered from their motel room. Defendant's admission to PTI prior to the

resolution of Francis's charges would have permitted defendant to claim sole

possession of the shotgun without fear of any further prosecution, thereby adversely

affecting the State's ability to pursue its theory of culpability against Francis—that

he and defendant jointly possessed the shotgun.

      Francis's 2017 PTI admission occurred almost two years after the 2015

rejection of defendant's PTI application and his guilty plea and sentencing. Thus,

when the OCPO rejected defendant's PTI application, it was actively prosecuting

Francis and, as noted, defendant's admission into PTI would have adversely affected

that prosecution. The OCPO's reliance on the factor enumerated in N.J.S.A. 2C:43-

12(e)(16) is supported by the record.




                                                                              A-5488-16T3
                                        11
       We reject defendant's contention the OCPO failed to consider all of the

relevant factors. Where, as here, the prosecutor provides a written statement of

reasons for its decision, it is presumed the prosecutor considered all of the

relevant factors, absent proof by the defendant to the contrary. Wallace, 146

N.J. at 584. "That presumption makes it difficult to reverse a prosecutor's

decision," State v. Baynes, 148 N.J. 434, 444 (1997) (citations omitted), and

defendant makes no showing to overcome the presumption. To the extent

defendant's argument may be construed to challenge the OCPO's weighing of

the various factors, it is the responsibility of the prosecutor, and not the court,

to "weigh the various factors and to reach a determination." Wallace, 146 N.J. at

586.

       Defendant has not satisfied his heavy burden of showing the OCPO's decision

could not have been reasonably made upon a weighing of the relevant factors. See

Nwobu, 139 N.J. at 254. He does not demonstrate the OCPO failed to consider the

relevant factors, considered irrelevant or inappropriate factors or that its rejection

decision constituted a clear error in judgment, a patent and gross abuse of discretion

or is "so wide of the mark sought to be accomplished by PTI that fundamental




                                                                              A-5488-16T3
                                         12
fairness and justice require judicial intervention." Wallace, 146 N.J. at 582-83

(citation omitted).

      Affirmed.




                                                                        A-5488-16T3
                                      13
