Prosecutor’s Preclusion of Defendant’s Entry into PTI Is an Abuse of Discretion

In determining whether to consent to admission, the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e),2 and also certain additional factors, policies, and

The seventeen factors are:
(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 codefendants; 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.

The objectives of the PTI program as described in Guideline 3 of Rule 3:28. Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules (2014) (“Guideline(s)”). These lists are not exhaustive, and additional relevant factors may also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002). Judicial review of the prosecutor’s decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant “enhanced” or “extra” deference to that decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). “Judicial review serves to check only the ‘most egregious examples of injustice and unfairness.'” Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).
Consequently, a reviewing court may order a defendant into PTI over the prosecutor’s objection only if the defendant can “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. Wallace, 146 N.J. 576, 582 (1996) (alteration in original) (quoting Leonardis, supra, 73 N.J. at 382); accord Baynes, supra, 148 N.J. at 444.
Here, the State contends the Law Division did not grant enhanced deference to the prosecutor’s decision and substituted its own judgment for that of the prosecutor. The State argues the Law Division’s opinion overrules the prosecutor based on an abuse of discretion standard rather than a gross and patent abuse of discretion standard. The Law Division’s opinion, however, recognized the correct standard of judicial review. The fact that the opinion did not repeat the phrase “patent and gross abuse of discretion” may have been a matter of avoiding explicit harsh criticism of the prosecutor rather than a failure to adhere to the appropriate standard of review.

In sum, we conclude this is the rare case where defendant demonstrated by clear and convincing evidence that the prosecutor’s rejection of her PTI admission was a patent and gross abuse of the prosecutor’s discretion.

In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court explained in greater detail the meaning of patent and gross abuse of discretion in the PTI context:

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.

In this case, the prosecutor’s two letters explaining defendant’s rejection discussed the nature of the offense and emphasized that the children were victimized by defendant’s conduct. The assistant prosecutor concluded that the interests of the public required defendant’s prosecution so that, with a criminal conviction on her record, defendant would presumably not qualify to become a nurse. Nowhere in the two letters did the prosecutor explain his consideration of the other factors that are relevant to admission or rejection of an applicant.

Although Guideline 3(i) states that a “defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor,” the prosecutor’s rejection letters did not cite that Guideline as an additional reason to reject defendant. The presumption against admission because defendant was indicted on a second-degree crime may be overcome, if defendant can show compelling reasons. Nwobu, supra, 139 N.J. at 252-53. Here, the Law Division judge found that defendant had shown compelling reasons for her admission.

On appeal, the State again does not rely on Guideline 3(i) but argues that the prosecutor considered all the relevant facts and that the Law Division so found in its written opinion. But the prosecutor’s statement that all facts had been considered was merely an assertion without elaboration. Nothing in the prosecutor’s two letters made reference to statutory factors peculiar to defendant’s individual circumstances or those that otherwise favored her application.

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