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State of New Jersey v. E. S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 AMOUNTS TO A CLEAR ERROR IN JUDGMENT.

D. THE PROSECUTOR'S DENIAL OF DEFENDANT'S PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

Our review of a prosecutor's denial of a defendant into a PTI program is limited. Whether to accept a defendant into PTI "lies, in the first instance with the prosecutor, and once [the prosecutor] has determined that he will not consent . . . his decision is to be afforded great deference." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). Judicial review is thus, "severely limited." State v. Negran, 178 N.J. 73, 82 (2003).

"The extreme deference which a prosecutor's decision is entitled . . . translates into a heavy burden which must be borne by a defendant . . . ." Kraft, supra, 265 N.J. Super. at 112. In order to admit a defendant into PTI over the objection of the prosecutor, defendant must establish "'clearly and convincingly . . . that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse . . . of discretion.'" State v. Seylar, 323 N.J. Super. 360, 367 (App. Div. 1999) (citation omitted), aff'd, 163 N.J. 69 (2000). Thus, defendant must establish that the prosecutor's decision "'(a) was not premised upon a consideration of all relevant factors, (b) was based upon consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.'" State v. Hoffman, 399 N.J. Super. 207, 213-14 (App. Div. 2008) (quoting State v. Bender, 80 N.J. 84, 93 (1979)); see also Negran, supra, 178 N.J. at 83.

The crux of defendant's argument is that all of the relevant statutory factors of N.J.S.A. 2C:43-12 were not properly considered because the prosecutor failed to explicitly analyze each one. Defendant concludes that the factors weighed in her favor, and, therefore, that the prosecutor committed an abuse of discretion.

A prosecutor is not required to discuss every factor listed in N.J.S.A. 2C:43-12, but need only "refer to the factors present in a defendant's background as well as those relating to the offense which led to the conclusion that admission to PTI should be denied." State v. Burger, 222 N.J. Super. 336, 342 (App. Div. 1988); see also State v. Sutton, 80 N.J. 110, 117 (1979). The prosecutor considered and properly weighed all the relevant factors and concluded that defendant's negative factors outweighed the positive factors. Defendant violated a temporary restraining order, carefully and repeatedly chose her victims, ignored numerous arrests, and continued to engage in illegal conduct. Under the circumstances of this case, defendant failed to establish clearly and convincingly that the prosecutor's refusal to admit defendant into the PTI program was based on a patent and gross abuse of discretion.

Affirmed.

20110824

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