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State of New Jersey v. E. S

August 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E. S.,
DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-06-1176.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 17, 2011

Before Judges J. N. Harris and Fasciale.

After pleading guilty, defendant E. S. appeals from her convictions for two counts of third-degree burglary, N.J.S.A. 2C:18-2, and two counts of fourth-degree criminal trespass, N.J.S.A. 2C:18-3a. Defendant contends that the prosecutor abused his discretion by denying her entry into the Pre-Trial Intervention (PTI) program. We disagree and affirm.

Over a period of approximately one month, defendant entered into the respective homes of friends and her estranged husband, stole checks, and illegally cashed them. One of the incidents involved a violation of a restraining order obtained by a family member. After each separate act, the police arrested and released her.

Defendant applied for admission into the PTI program and the PTI investigator "cautiously recommended that [defendant] be admitted into the program." The prosecutor, however, opposed defendant's application. The prosecutor explained that the facts of the case, N.J.S.A. 2C:43-12e(2), and the motivation of defendant, N.J.S.A. 2C:43-12e(3), prevented defendant's acceptance into PTI. The prosecutor stated that "the 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."

Defendant appealed from her PTI rejection to the Law Division. She argued that "inappropriate factors were considered and that positive factors were not taken into consideration in the State's rejection." The motion judge rejected the appeal and concluded that the prosecutor considered all the relevant factors, and did not consider "any improper or irrational standards." The judge then sentenced defendant to four concurrent one-year terms of probation.

On appeal, defendant raises the following points:

POINT I THE PROSECUTORIAL VETO IN THIS CASE CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE IT WAS NOT PREMISED UPON A CONSIDERATION OF ALL RELEVANT FACTORS, AMOUNTED TO A CLEAR ERROR IN JUDGMENT, AND CLEARLY SUBVERTED THE GOALS UNDERLYING PRE-TRIAL INTERVENTION.

A. INTRODUCTION: THE BASIS OF PTI.

B. THE CRITERIA FOR PTI ADMISSION.

C. IN ASSESSING THE DEFENDANT'S SUITABILITY FOR PTI, THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT FACTORS AND THE DENIAL ...


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