                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-3173-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

YUJIE GAO,

     Defendant-Appellant.
_________________________

              Submitted May 24, 2017 – Decided July 18, 2017

              Before Judges Fuentes and Simonelli.

              On appeal from the Superior Court of New
              Jersey, Law Division, Middlesex County,
              Accusation No. 14-10-0483.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Lauren S. Michaels, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Yujie Gao appeals from the October 29, 2015 Law

Division order, which denied his appeal of the rejection of his
application for admission into the pre-trial intervention (PTI)

program.    We affirm.

       Defendant was charged with fourth-degree criminal sexual

contact, N.J.S.A. 2C:14-3(b). The charges stemmed from an incident

on a public bus where defendant sat next to a female passenger,

who was asleep, and groped her breast and buttocks.     The victim

awoke when she felt a hand on her right breast and a hand on her

buttock.   She jumped up and screamed, and asked for the bus to be

stopped.    Another passenger moved defendant to the back of the

bus.    The bus driver stopped the bus and the New Jersey State

Police were called.

       A State Trooper arrived at the scene and saw that the victim

appeared visibly disturbed and was crying and gasping for breath

between sobs. The Trooper entered the bus and saw that defendant's

pants button was unclasped and his zipper was lowered.           Two

passengers told the Trooper that after hearing the victim scream,

they saw defendant masturbating and attempting to cover his penis

with his jacket. Defendant told the Trooper that his elbow touched

the victim's elbow and she seemed like a nice girl, so he decided

to give her a massage, but stopped when she began screaming.

Defendant admitted that he touched his penis during the incident

and touched the victim under her pants and shirt.



                                  2                         A-3173-15T2
     Defendant legally emigrated from China in 1997.         He has no

criminal history or substance abuse issues, and dedicated himself

to raising his son while his wife continued living and working in

China to support the family.     He has two Masters Degrees, one in

Engineering   Mechanics,   and   another   in   Computer   Science   and

Engineering, and had a job offer to work as a Clinical Programmer,

but the start date was delayed due to the pending charge.

     Defendant applied for admission into the PTI program.           The

Criminal Division manager (CCM) did not recommended defendant's

admission, finding as follows:

               The nature of the offense is of such
          severity that admission into PTI would
          deprecate the seriousness of the offense
          (Guideline 3(i)). PTI is a short-term program
          intended for victimless crimes (Guideline 1)
          . . . .

               The defendant committed the offense while
          on a public bus. He took advantage of a young
          woman    sleeping   whose   life    could   be
          significantly affected by the defendant's
          actions.    The offense is a violation of an
          individual's body.    It is felt defendant's
          admission    into  the   program   would   not
          significantly protect the needs of the
          victim[] and society (Guideline 3(7)).

          It appears the defendant is in need of mental
          health counseling.     The defendant advised
          [State Troopers] he was "messaging" the victim
          because they touched elbows and the victim
          "seemed like a nice girl."    the defendant's
          actions cannot be excused. According to PTI
          Guideline 3(i) there must be a balance struck
          between   a    defendant's   amenability    to

                                  3                             A-3173-15T2
          correction, responsiveness to rehabilitation
          and the nature of the offense. At the time
          of the defendant's PTI application, he did not
          take responsibility for his actions and
          indicated he did not commit the offense. CCM
          believes the defendant requires more intense
          supervision than is provided by the [PTI]
          program.

The CDM recognized favorable factors, including that defendant was

charged with a fourth-degree offense, had a minimal court history,

and a conviction could prohibit him from obtaining employment.

However, the CDM rejected defendant's application "based on the

seriousness of the offense, the need to protect society, and the

public need for prosecution[.]"

     The prosecutor agreed with the CCM's reasons and incorporated

them in her reasons for rejecting defendant's admission into the

PTI program.   The prosecutor also considered all relevant factors

set forth in N.J.S.A. 2C:43-12, stating as follows:

          The State has evaluated this case from all
          aspects noted in the PTI guidelines and
          statutes. Among the factors which bear upon
          the Prosecutor's decision is the fact that
          this is a crime that involves a victim of a
          sexual assault.    As noted in PTI Guideline
          1(c) and N.J.S.A. 2C:43-12(a)(3), the purpose
          of [PTI] is to "provide a mechanism for
          permitting the least burdensome form of
          prosecution possible for defendant's charged
          with 'victimless' offenses."       Defendant's
          actions clearly do not constitute a victimless
          offense. The victim in this case has been in
          contact with the State on numerous occasions.
          It is her sincere desire for this case to be
          handled through the traditional means of

                                  4                        A-3173-15T2
            prosecution. The needs and interests of the
            victim and society in prosecuting this case
            weigh in favor of rejecting this defendant
            from the PTI program.       N.J.S.A. 2C:43-
            12(e)(7).

                 The nature of the offense and the facts
            of the case, as set forth above, weigh against
            admission into the PTI program. In this case,
            the   value   of  supervisory   treatment   is
            outweighed by the public need for prosecution.
            N.J.S.A. 2C:43-12(e)(1), (2) and (14).

     Defendant appealed the prosecutor's decision.                    While the

appeal was pending, the CDM issued an addendum, stating that

documents    she       received    from    defendant's   attorney    after    the

rejection of defendant's PTI application did not change the initial

recommendation.         In an oral opinion, Judge Diane Pincus denied

defendant's appeal, finding there was no abuse of discretion or

misapplication of the law, and no compelling reason warranting

admission into PTI.

     Defendant then pled guilty to fourth-degree criminal sexual

contact in exchange for the State's agreement to recommend a one-

year term of non-custodial probation.             The trial court sentenced

defendant   to     a    one-year    term   of   probation,   and    imposed   the

appropriate assessments, fines, and penalties.

     On appeal, defendant raises the following contention:

            POINT I

                   THE     PROSECUTOR'S   REJECTION   OF
                   DEFENDANT'S ADMISSION INTO [PTI] IS A

                                           5                             A-3173-15T2
                 PATENT AND GROSS ABUSE OF DISCRETION THAT
                 CLEARLY SUBVERTED THE GOALS UNDERLYING
                 PTI, WHICH MUST BE CORRECTED BY THIS
                 COURT.

We have considered this contention in light of the record and

applicable legal principles and conclude it is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We affirm substantially for the reasons expressed by Judge Pincus

in her comprehensive and cogent oral opinion.       However, we make

the following comments.

     We have held that

                 PTI is a diversionary program designed
            to augment the options of prosecutors in
            disposing of criminal matters . . . [and]
            provide applicants with opportunities to avoid
            ordinary prosecution by receiving early
            rehabilitative services or supervision, when
            such services or supervision can reasonably
            be expected to deter future criminal behavior
            by an applicant.

            [State v. Motley, 369 N.J. Super. 314, 320
            (App. Div. 2004) (quoting State v. Brooks, 175
            N.J. 215, 223 (2002)).]

To   gain   admission,    a   defendant   must   obtain   a   positive

recommendation from the PTI director and the         consent of the

prosecutor.    Ibid.

     In making a PTI determination, the prosecutor must evaluate

the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28

Guidelines.    State v. Negran, 178 N.J. 73, 80-81 (2003).     As part


                                   6                           A-3173-15T2
of that determination, the prosecutor must assess a defendant's

"amenability      to    correction,"       potential     "responsiveness       to

rehabilitation," and the nature of the offense charged.               State v.

Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b);

State v. Bender, 80 N.J. 84, 89 (1979)).

       A "[d]efendant generally has a heavy burden when seeking to

overcome a prosecutorial denial of his [or her] admission into

PTI."     Ibid.    (citation   omitted).        In     order   to   overturn    a

prosecutor's rejection, a defendant must "clearly and convincingly

establish that the prosecutor's decision constitutes a patent and

gross abuse of discretion."          State v. Hoffman, 399 N.J. Super.

207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J.

Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008)).                 "A

patent and gross abuse of discretion is defined as a decision that

'has gone so wide of the mark sought to be accomplished by PTI

that    fundamental       fairness     and    justice     require     judicial

intervention.'"        Watkins, supra, 193 N.J. at 520 (quoting State

v. Wallace, 146 N.J. 576, 582-83 (1996)).              "Ordinarily, an abuse

of discretion will be manifest if defendant can show that a

prosecutorial veto (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."       State v. Bender, 80 N.J. 84, 93 (1979).

                                       7                                A-3173-15T2
     Prosecutors are granted "wide latitude in deciding whom to

divert into the PTI program and whom to prosecute through a

traditional trial."   Negran, supra, 178 N.J. at 82.   We afford the

prosecutor's decision great deference.    Wallace, supra, 146 N.J.

at 589.   For that reason, "[t]he scope of judicial review of a

decision to reject a PTI application is 'severely limited.'"

Hoffman, supra, 399 N.J. Super. at 213 (quoting Negran, supra, 178

N.J. at 82).     A trial court can only overturn a prosecutor's

decision to deny PTI upon finding a patent and gross abuse of

discretion.    Kraft, supra, 265 N.J. Super. at 112-13.

     Here, there is no evidence, let alone clear and convincing

evidence of a patent and gross abuse of discretion.

     Affirmed.




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