                           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                        NOT FOR PUBLICATION WITHOUT THE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-2812-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

RIANNA L. DRINKS,

        Defendant-Appellant.

__________________________________

              Submitted May 31, 2017 – Decided August 18, 2017

              Before Judges Leone and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              15-05-0679.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Theresa Y. Kyles, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Roseanne Sessa,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Rianna L. Drinks pled guilty to fourth-degree child

abuse or neglect.         She appeals her February 12, 2016 judgment of
conviction, arguing the trial court erred when it upheld the

prosecutor's     rejection        of   her     application         for    pre-trial

intervention (PTI).        We affirm.

                                        I.

     The prosecutor's rejection letter and the February 3, 2015

police report alleged the following facts.

     On February 3, 2015, defendant left her two young children,

ages two and six, alone in her Jersey City apartment.                     At 10:00

a.m., a neighbor saw the two-year-old naked in the hallway of the

apartment building.        At approximately 3:00 p.m., police officers

responded to a call about unattended children in the apartment,

and heard children crying.         When the officers knocked on the door,

a child told them through the door that their mother was asleep

and the child would not open the door.               The officers obtained a

key from building management and entered the apartment to ascertain

the children's welfare.        The officers found two children hiding

in the back bedroom, naked and unattended.              The older child told

police   she   did   not   know    where     her   mother    was    and   had   been

instructed not to open the door for anyone.                 The neighbor stated

that the children were frequently left home alone.

     Police attempted to call defendant's phone but could not

reach her.     Defendant returned to the apartment around 4:00 p.m.

and provided different versions of where she was and changed her

                                        2                                   A-2812-15T1
story several times.     Defendant later told the PTI interviewer

that she went to a check-cashing place and a store to buy food.

     Defendant was charged with two counts of second-degree child

endangerment, N.J.S.A. 2C:24-4(a), and two counts of fourth-degree

child abandonment, N.J.S.A. 9:6-1, -3.       Defendant applied for

admission to PTI, but the prosecutor denied the application.

Defendant filed a motion challenging the prosecutor's denial.     The

trial court rejected defendant's challenge in an October 19, 2015

oral decision.

     Thereafter, defendant entered a guilty plea to fourth-degree

child abandonment.    She admitted she left the older child alone

in the apartment "for a period of time," putting her in danger.

The court sentenced defendant to two years of probation.

     Defendant appeals the denial of her PTI motion.         See R.

3:28(g).   She argues:

           THE PROSECUTOR'S DECISION TO REJECT MS.
           DRINK'S APPLICATION FOR PTI CONSTITUTED A
           PATENT AND GROSS ABUSE OF DISCRETION THAT
           SUBVERTS THE GOALS OF PTI, REQUIRING HER
           ADMISSION   INTO  PTI.      AT  MINIMUM,   IT
           CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING
           A REMAND FOR RECONSIDERATION.

                 A.   In This Matter, the Prosecutor
                      Considered Inappropriate Factors,
                      Failed    to    Consider    Relevant
                      Factors, and Based His Conclusion on
                      a Clear Error of Judgment, Resulting
                      in   an   Abuse   of   Prosecutorial
                      Discretion.

                                  3                          A-2812-15T1
                        1.     Nature of the Offense and Facts
                               of the Case.

                        2.     Motivation       and   Age    of    the
                               Defendant.

                        3.     Public Needs Factors.

                 B.     Rejection   of    the   Application
                        Subverted the Goals of PTI.

                                       II.

     The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule

3:28, and the Guidelines for Operation of Pretrial Intervention

in New Jersey, reprinted after Rule 3:28 in Pressler & Verniero,

Current   N.J.   Court       Rules     (2017)     (hereinafter     Guidelines).

"N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be

considered by the criminal division manager and prosecutor in

determining admission into [PTI]."              State v. K.S., 220 N.J. 190,

197 (2015).   Courts must "presume that a prosecutor considered all

relevant factors, absent a demonstration by the defendant to the

contrary."    State v. Wallace, 146 N.J. 576, 584 (1996).

     "Deciding    whether      to     permit     diversion    to    PTI   'is     a

quintessentially prosecutorial function.'"              State v. Waters, 439

N.J. Super. 215, 225 (App. Div. 2015) (quoting Wallace, supra, 146

N.J. at 582).         "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

                                        4                                 A-2812-15T1
second, because it is a primary purpose of PTI to augment, not

diminish, a prosecutor's options."           Ibid. (quoting State v. Nwobu,

139 N.J. 236, 246 (1995)).         "Accordingly, 'prosecutors are granted

broad discretion to determine if a defendant should be diverted'

to PTI instead of being prosecuted."            Ibid. (quoting K.S., supra,

220 N.J. at 199).

     "Thus, the scope of review is severely limited."                   Ibid.

(quoting State v. Negran, 178 N.J. 73, 82 (2003)).                "Reviewing

courts must accord the prosecutor '"extreme deference."'"               Ibid.

(quoting Nwobu, supra, 139 N.J. at 246).                  "[I]nterference by

reviewing courts is reserved for 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) (quoting Negran, supra, 178 N.J. at 82), certif. denied, 222

N.J. 18 (2015).

     We apply the same standard as the trial court, and review its

decision de novo.         Waters, supra, 439 N.J. Super. at 226.     We must

hew to that standard of review.

                                      III.

     The prosecutor denied defendant's application for admission

into PTI for a number of reasons.            The prosecutor noted defendant

was charged with second-degree offenses, which carry a presumption

against admission into PTI.           In addition, the prosecutor found

                                        5                             A-2812-15T1
denial was supported by "[t]he nature of the offense," "[t]he

facts of the case," defendant's "motivation," "[t]he needs and

interests of the victim and society," and the determination that

"the    public   need    for   prosecution"    outweighed   "the    value    of

supervisory treatment" and "the harm done . . . by abandoning

criminal prosecution . . . outweigh[ed]" any societal benefits

from allowing PTI.       N.J.S.A. 2C:43-12(e)(1), (2), (3), (7), (14),

(17).    The prosecutor highlighted that defendant left such young

children on their own, that she gave contradictory versions of why

she did so, and that a neighbor told police defendant frequently

left the children home alone.           Finally, the prosecutor doubted

"rehabilitative efforts will be short term."

       The prosecutor properly cited the presumption against PTI.

Guideline 3(i) states "[a] defendant charged with a . . . second

degree offense . . . should ordinarily not be considered for

enrollment in a         PTI program."       "This provision represents a

'decision to prevent serious offenders from avoiding prosecution

in ordinary circumstances,' and creates 'a presumption against

diversion.'"     Waters, supra, 439 N.J. Super. at 226 (quoting State

v. Caliguiri, 158 N.J. 28, 42 (1999)).          "If a defendant 'fails to

rebut the presumption against diversion,' then '[r]ejection based

solely on the nature of the offense is appropriate.'"              Id. at 227



                                        6                             A-2812-15T1
(alteration in original) (quoting Caliguiri, supra, 158 N.J. at

43).

       Defendant asserts that relying on the presumption against PTI

for second-degree offenses under Guideline 3(i) was inappropriate

because second-degree offenders can be admitted to PTI.         However,

the prosecutor did not indicate to the contrary.             Rather, the

prosecutor      acknowledged   the       presumption   was    applicable

"ordinarily," and provided several other reasons why defendant

should not receive PTI.

       Defendant cites the August 10, 2015 addition of N.J.S.A.

2C:43-12(g)(3), but that was enacted after the prosecutor's July

20, 2015 PTI decision.     In any event, the 2015 amendment simply

provides that "[a]dmission into supervisory treatment shall be

available to the following defendants only upon entering a plea

of guilty: (a) a defendant charged with a first or second degree

crime."    L. 2015, c. 98, § 4.      Nothing in the 2015 amendment or

its legislative history indicates that adding the requirement of

a guilty plea was intended to void the long-standing presumption

against admission to PTI for defendants charged with a first- or

second-degree crime, which has been a part of the Supreme Court's

Guidelines since 1982.     See Pressler, Current N.J. Court Rules,

Guideline 3(i) to R. 3:28 (1984).           Therefore, the presumption

applied here.

                                     7                           A-2812-15T1
     "A defendant may rebut the presumption by 'showing compelling

reasons justifying the applicant's admission and establishing that

a   decision      against      enrollment    would     be    arbitrary       and

unreasonable.'"      Waters, supra, 439 N.J. Super. at 227 (quoting

Guideline 3(i)).        Defendant contends she overcame the presumption

because    this   was    her   first   arrest,   she   was   charged   with    a

nonviolent offense, she did not intend to harm her children, and

her mother, who was her primary childcare resource, had recently

passed away.1     However, "'[a] defendant must demonstrate something

extraordinary or unusual,' not merely 'that the accused is a first-

time offender and has admitted or accepted responsibility for the

crime.'"    Ibid. (quoting Nwobu, supra, 139 N.J. at 252).

     The    circumstances       presented   by   defendant     were    not    so

compelling as to rebut the presumption against PTI.                     "[T]he

interests of society may justify the denial of an application for

admission into PTI even though a defendant has led an exemplary

life except for the conduct which forms the basis of the pending

criminal charges."         State v. Seyler, 323 N.J. Super. 360, 370

(App. Div. 1999), aff'd o.b., 163 N.J. 69 (2000).



1
  Defendant contends the prosecutor did not consider those facts.
However, the prosecutor was aware of those facts, and her letter
said she considered "all of the relevant reports" and "[a]ll of
the facts in this defendant's case." "Thus, defendant's contention
. . . is not sustainable." See Wallace, supra, 146 N.J. at 588.

                                        8                              A-2812-15T1
      "Even if 'extraordinary and unusual' circumstances exist to

overcome the presumption against admission into PTI for certain

offenses," a court may only "overrule a prosecutor's decision to

accept or reject a PTI application . . . 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."'"    State v. Roseman, 221 N.J.

611, 624-25 (2015) (quoting Wallace, supra, 146 N.J. at 582).

          "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. . . . 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."

          [Wallace, supra, 146 N.J. at 583 (quoting
          State v. Bender, 80 N.J. 84, 93 (1979)).]

      Defendant argues that in evaluating the facts of the case,

the   prosecutor   inappropriately    considered   the   neighbor's

statements to the police that the children were alone since 10:00

a.m. and had been frequently left alone in the past.      Defendant

claims that neighbor bore animosity toward defendant and had motive

to lie, but plaintiff's claim is unsupported by evidence.    In any

event, "[a] prosecutor is certainly free to disbelieve statements

                                9                           A-2812-15T1
presented    by    defense   witnesses    and    to   instead    credit    the

anticipated contrary testimony of the State's witnesses."                 Lee,

supra, 437 N.J. Super. at 568.

     The    prosecutor    also   considered     defendant's     "motivation,"

N.J.S.A. 2C:43-12(e)(3), which can encompass both her "motivation

behind the commission of the crime" and her "motivation to succeed

in the [PTI] program."       State v. Leonardis, 71 N.J. 85, 101 n.9,

112 (1976); e.g., State v. Rizzitello, 447 N.J. Super. 301, 309

(App. Div. 2016); State v. Imbriani, 291 N.J. Super. 171, 179

(App. Div. 1996).        The prosecutor found defendant's motivation

"suspect."        Defendant told the PTI interviewer she left the

children alone only to get cash and buy them food.              However, the

prosecutor noted she gave conflicting stories to the police at the

time she returned home.       Defendant argues that was inappropriate

because her motivation cannot be assessed by a single conversation

with police while being arrested.        However, the prosecutor was not

required to credit the motivation defendant later gave the PTI

interviewer, which appeared inconsistent with the 10 a.m. to 4

p.m. period the children allegedly were alone.                The prosecutor

also noted defendant herself did not express remorse or acknowledge

the inappropriateness of her actions.             Her lack of candor and

failure to accept full responsibility for her actions supported



                                    10                                A-2812-15T1
the prosecutor's finding that she lacked motivation to benefit

from supervisory treatment.

       Defendant argues the prosecutor ignored a letter submitted

by Visiting Homemaker Service regarding defendant's performance

in its parenting courses, which attested to her good character as

a mother.     However, the prosecutor could give little weight to

that letter given the evidence that, despite having completed

parenting classes, defendant nonetheless left her small children

alone for six hours.       See State v. Brooks, 175 N.J. 215, 230 (2002)

(finding "numerous letters attesting to [the defendant's] good

character" could not "detract from the nature of his acts or from

the fact that . . . defendant appreciated the wrongful nature of

his conduct and simply disregarded it"). The prosecutor's decision

not to rely on defendant's explanations of her whereabouts, as

well   as   the   letter   regarding   her   character,   was    within   the

prosecutor's discretion.       See Lee, supra, 437 N.J. Super. at 568.

       Defendant argues it was inappropriate for the prosecutor to

consider the needs of the victims and of society for prosecution

of defendant's irresponsible abandonment of such young children.

Defendant    argues   cases    of   irresponsible   parenting,    including

neglect, are commonly handled in civil courts by the Division of

Child Protection and Permanency (DCP&P).        However, N.J.S.A. 2C:24-

4(a) and N.J.S.A. 9:6-3 explicitly allow the prosecutor to seek

                                     11                              A-2812-15T1
criminal prosecution for such neglect, and "[t]he selection of the

charge rests in the sound discretion of the prosecutor."           See

State v. D.V., 348 N.J. Super. 107, 115-16 (App. Div. 2002), aff’d

o.b., 176 N.J. 338 (2003).

     Defendant argues the prosecutor made a clear error of judgment

by prosecuting her when other cases with similar or identical

conduct   might   not   be   prosecuted.   However,   "'prosecutorial

decisions in PTI matters are primarily individualistic in nature,'

and thus ordinarily 'a defendant will not prevail merely because

he can demonstrate that, unlike himself, others who have been

charged with similar offenses have been diverted into PTI.'"

Waters, supra, 439 N.J. Super. at 235 (quoting State v. Sutton,

80 N.J. 110, 119 (1979)).      Defendant similarly cannot prevail by

showing others have been sued civilly by DCP&P, given our extreme

deference to prosecutorial discretion.     In any event, the apparent

duration and frequency of defendant's abandonment of the children,

and her subsequent dissembling about it, distinguish her case from

the DCP&P case she cites, where a mother left her sleeping child

unattended for approximately ten minutes in a locked motor vehicle

in a store parking lot while she was in the store.      Cf. Dep't of

Children & Families, Div. of Child Prot. & Permanency v. E.D.-O.,

223 N.J. 166, 169 (2015).       We are particularly hesitant to find



                                   12                         A-2812-15T1
that a prosecutor's determination was a clear error of judgment.

State v. Maddocks, 80 N.J. 98, 105 (1979).

     Defendant cites the prosecutor's comment in her denial letter

that "defendant has a prior history with DCP&P, yet has been unable

to comport her conduct to acceptable societal standards.            In light

of this DCP&P, it cannot be said that rehabilitative efforts will

be short term."      Defendant argues her prior involvement with the

DCP&P was an inappropriate factor because that matter arose from

domestic violence perpetrated by the father of one of her children,

and defendant was one of the victims.            Defendant is correct that

being a victim of domestic violence would not be a basis for

denying PTI, but that was not the basis cited by the prosecutor.

Rather, as the prosecutor's letter suggested and as she explained

at her motion hearing, the prosecutor was referring to the services

defendant received due to DCP&P's involvement, as a result of

which the twenty-five-year-old defendant "knew what she was doing

was not appropriate."          Defendant concedes that her parenting

classes   were   from    "a   DCP&P-associated     support   agency."         The

prosecutor   could      consider   defendant's    failure    to   heed     those

societal standards in finding that rehabilitation would be slow

and PTI inadequate.

     Defendant has failed to show the prosecutor's decision "was

not premised upon a consideration of all relevant factors, (b) was

                                     13                                  A-2812-15T1
based upon a consideration of irrelevant or inappropriate factors,

or (c) amounted to a clear error in judgment."               Wallace, supra,

146 N.J. at 583 (quoting Bender, supra, 80 N.J. at 93).               Thus, we

cannot say the prosecutor's decision was arbitrary, irrational,

or otherwise an abuse of discretion.

       In any event, defendant cannot meet the standard for a patent

and gross abuse of discretion because the prosecutor's decision

did not "'clearly subvert the goals underlying [PTI].'"                    Ibid.

(citation omitted).       Granting defendant PTI would not necessarily

serve all the goals of PTI set forth in N.J.S.A. 2C:43-12(a)(1)-

(5).    This was not a "'victimless' offense[]," and the victims

were small children unable to care for themselves. N.J.S.A. 2C:43-

12(a)(3).    Nor was the prosecutor required to find that PTI would

be sufficient to deter defendant from future criminal neglect.

See    N.J.S.A.    2C:43-12(a)(1),     (2),   (5).    We     cannot   say   the

prosecutor's decision clearly subverted the goals of PTI.

                                       IV.

       Defendant also submits the prosecutor's decision, at minimum,

constituted       an   abuse   of   discretion   requiring    a   remand    for

reconsideration.        A reviewing court may "vacate a PTI rejection

and remand to the prosecutor for reconsideration" if it "finds

that 'the prosecutor's decision was arbitrary, irrational, or

otherwise an abuse of discretion, but not a patent and gross

                                       14                              A-2812-15T1
abuse'" and "a remand will serve a useful purpose."                Wallace,

supra, 146 N.J. at 583 (quoting State v. Dalglish, 86 N.J. 503,

509-11 (1981)).    As set forth above, however, defendant has failed

to make such a showing.

     Ultimately,    "[t]he   question    is   not   whether   we   agree   or

disagree   with    the   prosecutor's     decision,    but    whether      the

prosecutor's decision could not have been reasonably made upon

weighing the relevant factors."         Nwobu, supra, 139 N.J. at 254.

As in Nwobu, "[w]e cannot say that such a decision could not have

been reasonably made in this setting."         Ibid.

     Defendant's remaining arguments lack sufficient merit to

warrant discussion.      R. 2:11-3(e)(2).

     Affirmed.




                                  15                                A-2812-15T1
