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State v. Cruz


December 8, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-01555.

Per curiam.


Submitted November 16, 2009

Before Judges Reisner and Chambers.

Defendant appeals from the denial of his motion to be admitted into the Pretrial Intervention Program (PTI), governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey. A prosecutor's decision not to admit a defendant into PTI will only be overturned where the court finds a "patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). We do not find that such an abuse of discretion has occurred in this case and affirm.


Defendant was indicted for five counts of shoplifting, N.J.S.A. 2C:20-11(b) (third-degree), and, in a superseding indictment, he was also charged with using a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9(a) (second-degree). The State contended that defendant had taken merchandise totaling $7,765.54 from Home Depot during the period from July 27, 2006 to August 6, 2006, and that a juvenile cashier at Home Depot assisted him in the shoplifting.

Defendant applied for PTI. He was thirty-seven years old at the time and the owner of two restaurants and four homes, three of which were being remodeled for resale. He had no prior juvenile or criminal record.

The director of PTI did not recommend defendant's admission into PTI, citing the repetitive pattern of wrongful conduct that was motivated by personal gain, noting that when defendant was arrested, he had $16,540 on his person. The prosecutor refused to consent to defendant's admission into PTI, finding that the factors relied upon by the director in denying admission outweighed any other factors. Pursuant to Rule 3:28(h), defendant moved for an order overturning the prosecutor's decision and admitting defendant into PTI. The motion was denied by the trial court.

Pursuant to a plea agreement, defendant then pled guilty to fourth-degree theft of mislaid property,*fn1 and the remaining counts were dismissed. He received a suspended sentence of three years with the condition that he maintain employment and pay restitution in the sum of $5,594 and the requisite fines and penalties.

Defendant has brought this appeal, contending that the trial court erred in declining to find that the prosecutor patently and grossly abused his discretion in objecting to defendant's admission into PTI. See R. 3:28(g) (providing that "[d]enial of acceptance [into PTI] may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty").


PTI is a diversionary program permitting those charged with criminal conduct "to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). It is designed "to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system. Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality." State v. Watkins, supra, 193 N.J. at 513.

The statute, N.J.S.A. 2C:43-12(e), sets forth the following seventeen criteria that prosecutors and program directors must consider when determining whether an applicant may participate in PTI.

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of co-defendants; and

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program. [N.J.S.A. 2C:43-12(e).]

Other factors may be considered as well. Ibid.

An analysis of the circumstances in this case indicates that some of the statutory factors would favor PTI for defendant and others would not. The trial court noted a number of factors favoring PTI for defendant, including the following circumstances: defendant has no prior record (factor nine); the offense did not involve violence nor does defendant have any history of violence or dangerous conduct toward others (factors nine, ten, and twelve); organized crime is not involved (factor thirteen); and defendant's participation in PTI will not adversely affect the prosecution of a co-defendant (factor sixteen).

On the other hand, the prosecutor argued that consideration of factors one, two, six, seven, eight, fourteen, and seventeen justified denial of PTI. Specifically, the prosecutor noted that the offense involved conspiring with a juvenile, the cashier at Home Depot; that merchandise had been taken on multiple occasions; that its value was substantial, $7,765.54; and that defendant had $16,540 on his person when he was arrested, demonstrating that the offense was not committed because of need. The prosecutor further considered the interests of society and the public need for prosecution, noting that shoplifting is an offense that affects the cost of products for other members of society and is an offense worthy of prosecution.

The law imposes upon the prosecutor the responsibility of weighing the factors favoring PTI against the ones that do not and reaching a conclusion about defendant's admission into PTI. Diversion into a PTI program is a "quintessentially prosecutorial function," and the prosecutor has broad discretion to decide whether a defendant should be admitted into PTI. State v. Wallace, 146 N.J. 576, 582 (1996).

The court will overturn a prosecutor's decision denying PTI where it finds a "patent and gross abuse of discretion." State v. Watkins, supra, 193 N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). The defendant bears the burden of showing by clear and convincing evidence that this standard has been met. Ibid. For a prosecutor's decision denying PTI to represent a "patent and gross abuse of discretion," the decision must have "'gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (quoting State v. Wallace, supra, 146 N.J. at 582-83). That standard is met where the 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." State v. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

After a careful review of the record and in light of the court's standard of review, we cannot say that the prosecutor's denial of PTI in this case was a patent and gross abuse of discretion.


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