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State of New Jersey v. Tracy D. Cain


August 23, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-00856.

Per curiam.


Submitted August 17, 2011

Before Judges J. N. Harris and Fasciale.

Defendant Tracy D. Cain appeals from the March 19, 2010 order of the Law Division denying her motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Monmouth County Prosecutor (Prosecutor). We affirm.

The facts relevant to the issue on appeal are as follows. Cain was indicted for one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). Following her arrest and indictment, Cain entered into a provisional plea arrangement with the State, by which she pled guilty to third-degree conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). The plea was conditioned upon Cain's application for admission into the PTI program.

The Probation Department recommended that Cain be admitted into the PTI program, based upon two reasons: (1) although Cain "has numerous pending matters at the Municipal Court level," this was Cain's first "Superior Court matter," and (2) although Cain "was 'high' on the day of her arrest," she "will respond affirmatively to PTI supervision."

The Prosecutor disagreed with this recommendation and issued a two-page memorandum explaining the reasons for opposing Cain's application. The stated reasons for the Prosecutor's rejection were that (1) "defendant lacks the motivation to succeed in PTI" due to her prior contacts with the court, which "have failed to deter her," and (2) the crime constitutes "part of a continuing pattern of anti-social behavior." In addition to citing applicable sections of the New Jersey Code of Criminal Justice, the Prosecutor further stated, "[t]he State has considered the positive factors in the defendant's application. The State though finds that the negative factors significantly outweigh the positive making her an inappropriate candidate for PTI."

Cain appealed the decision rejecting her PTI application to the Law Division, where the judge declined to admit her to the PTI program over the Prosecutor's objection, reasoning:

The defendant's position with regard to the [P]rosecutor's reliance upon N.J.S.A. 2C:43-12(e)(3) is incorrect. The defendant's record provides a logical and rational factual basis for the

[P]rosecutor's conclusion.

The [P]rosecutor's reliance upon

defendant's history of interactions with the court provides a rational basis for the conclusion that defendant's crime constitutes a pattern of antisocial behavior, indeed, during the ten-month period following defendant's arrest on November 28, 2008, she was arrested and convicted on two occasions on separate charges in municipal court. Such a record supports the [P]rosecutor's conclusion. There's nothing about the conclusion which is irrational or arbitrary. As such, the Prosecutor probably considered the factors set forth in N.J.S.A. 2C:43-12(e)(8).

The defendant has not presented clear and convincing evidence the Prosecutor's Office -- that the [P]rosecutor's decision, after weighing the various factors, constitutes an abuse of discretion or patent and gross abuse of discretion. Instead, the defendant's argument simply suggests that the [P]rosecutor should have weighed and this court should weigh the factors differently. Defendant has not demonstrated the [P]rosecutor failed to consider all of the relevant factors or made a clear error of judgment under the standards set forth in State v. Bender, [80 N.J. 84 (1979)].

There's no basis in the record for [the court] to conclude otherwise and for each of those reasons, the defendant's motion is denied.

Thereafter, Cain was sentenced to eighteen months of probation. This appeal ensued.

On appeal, Cain raises the following issue for our consideration:


We have considered this argument in light of the record, together with applicable legal precedents, and find it unpersuasive.

N.J.S.A. 2C:43-12 and Rule 3:28, with its accompanying Guidelines (particularly Guideline 8), set out the "purposes, goals, and considerations relevant to PTI." State v. Negran, 178 N.J. 73, 80 (2003) (internal quotations omitted). Admission into a PTI program requires a positive recommendation from the PTI director and the consent of the local prosecutor. Ibid.; State v. Nwobu, 139 N.J. 236, 246 (1995).

Admission determinations "are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). Because the prosecutorial function is reserved to the executive branch, once a prosecutor has determined not to consent to a defendant's application to a diversionary program, that decision is afforded "enhanced deference." State v. DeMarco, 107 N.J. 562, 566 (1987). Judicial review of a prosecutor's decision is severely limited "'to check only the most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Therefore, "[a]bsent evidence to the contrary, it is [to be] presumed that the prosecutor considered all relevant factors before rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981).

Notwithstanding the foregoing, a prosecutor's discretion in respect to a PTI application is not without limits. State v. Brooks, 175 N.J. 215, 225 (2002). A defendant attempting to overcome a prosecutorial rejection must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion before a court [can] suspend criminal proceedings under [Rule] 3:28 without prosecutorial consent." Nwobu, supra, 139 N.J. at 246 (internal quotations omitted). That standard, which governs our review here, requires the following showing:

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. [Bender, supra, 80 N.J. at 93 (internal citations omitted).]

Here, the judge followed these principles. The evidence clearly supports the Prosecutor's conclusion that defendant lacked motivation to succeed in the PTI program and was an inappropriate candidate due to her exhibition of a continuing pattern of anti-social behavior. Accordingly, we discern no error in the judge's conclusions and detect no "patent and gross abuse of discretion" in the decision of the Prosecutor to reject defendant from the PTI program.



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