NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4808-18






                   Submitted January 25, 2021 – Decided February 9, 2021

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 11-10-1772.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Zachary Markarian, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Mark Musella, Bergen County Prosecutor, attorney for
                   respondent (Craig A. Becker, Assistant Prosecutor, of
                   counsel and on the brief).

      Defendant appeals from her conviction for third-degree theft by unlawful

taking. Defendant argues it was a patent abuse of discretion to reject her

application for admission into the pre-trial intervention program (PTI) based on

her inability to pay restitution up front.    The record does not support this

characterization and instead reflects that defendant's inability to pay was one of

several relevant statutory factors supporting the denial. We therefore affirm.

      In October 2011, a Bergen County grand jury charged defendant with

third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Defendant failed to

appear for her arraignment in late 2011 and the judge issued a bench wa rrant.

Two years later, defendant was picked up on the bench warrant. In August 2013,

defendant appeared for a status conference, however the judge adjourned the

conference to allow the State to determine restitution. The State resolved the

issue and defendant was to appear on September 23, 2013, which she failed to

do, resulting in the issuance of a second bench warrant.

      In May 2018, police picked defendant up on the second bench warrant as

a result of a motor vehicle stop. The judge held a status conference on May 14,

2018 and set a June date for defendant's next appearance. Thereafter, defendant

applied for PTI.    On June 25, 2018, defendant failed to appear again and

represented to her attorney that she had a family medical issue, which she failed

to proffer documentation of, thereby resulting in the issuance of a third bench


      Although   the   PTI   director   recommended    accepting   defendant's

application, in August 2018, the prosecutor objected. On September 24, 2018,

the judge heard argument on defendant's appeal from the prosecutor's denial of

her application and upheld that determination.

      Defendant then pled guilty to the charge. The plea agreement reflected

the State would recommend a five-year probationary term, and restitution in the

amount of $15,000 to be paid in monthly increments of $50.             The judge

sentenced defendant to three-years' probation and imposed the fines.

      On appeal, defendant raises the following issue for this court's


            POINT I

            STATE'S   DENIAL    OF    [DEFENDANT'S]
            APPLICATION     FOR     [PTI],     WHICH
            UPFRONT,    WAS  NOT   AN      ABUSE  OF

      Deciding whether to permit a defendant to divert to PTI "is a

quintessentially prosecutorial function," State v. Wallace, 

146 N.J. 576

, 582

(1996), for which a prosecutor is given "broad discretion," State v. K.S., 

220 N.J. 190

, 199 (2015). It involves the consideration of the non-exhaustive list

of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to

"make an individualized assessment of the defendant considering his or her

amenability to correction and potential responsiveness to rehabilitation." State

v. Roseman, 

221 N.J. 611

, 621-22 (2015) (citations and internal quotation

marks omitted). "These factors include 'the details of the case, defendant's

motives, age, past criminal record, standing in the community, and employment


Id. at 621

(alteration in original) (quoting State v. Watkins,

193 N.J. 507

, 520 (2008)).

      That said, the scope of this court's review of a PTI rejection is severely

limited and designed to address "only the 'most egregious examples of injustice

and unfairness.'" State v. Negran, 

178 N.J. 73

, 82 (2003) (quoting State v.


73 N.J. 360

, 384 (1977)). "In order to overturn a prosecutor's

rejection, a defendant must 'clearly and convincingly establish that the

prosecutor's decision constitutes a patent and gross abuse of discretion,'"

meaning that the decision "has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial


Watkins, 193 N.J. at 520

(first quoting State v. Watkins, 390


4 N.J. Super. 302

, 305-06 (App. Div. 2007); and then quoting 

Wallace, 146 N.J. at 582-583


      An abuse of discretion has occurred where defendant can prove "that the

denial '(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. Lee, 

437 N.J. Super. 555


563 (App. Div. 2014) (quoting State v. Bender, 

80 N.J. 84

, 93 (1979)). "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 [PTI]."          

Roseman, 221 N.J. at 625


Bender, 80 N.J. at 93

). "The extreme deference which a prosecutor's decision

is entitled to in this context translates into a heavy burden which must be borne

by a defendant when seeking to overcome a prosecutorial veto of his [or her]

admission into PTI." State v. Kraft, 

265 N.J. Super. 106

, 112 (App. Div. 1993).

Defendant cannot meet this steep burden here. Defendant's conduct throughout

the litigation demonstrates that she was, and continues to be, a poor candidate

for PTI.      Applying these principles, the prosecutor's decision to deny

defendant's entry into PTI does not amount to a "patent and gross" abuse of


      A PTI diversion decision is not limited to consideration of the gravity of

the crimes committed but must also consider the applicant's "amenability to

correction" and "responsiveness to rehabilitation." RSI Bank v. Providence

Mut. Fire Ins. Co., 

234 N.J. 459

, 474 (2018). N.J.S.A. 2C:43-12(e) sets forth

factors encompassing these concepts that prosecutors must contemplate before

accepting or rejecting entry into PTI. While the prosecutor may not make

defendant's ability to pay restitution the sole reason for the denial, there will

be no abuse of discretion when the restitution finding is "only [one] of the many

valid considerations that support defendant's rejection." State v. Imbriani, 

291 N.J. Super. 171

, 181 (App. Div. 1996). This was the case here.

      The prosecutor found factors seven and fourteen, N.J.S.A. 2C:43-

12(e)(7) and (14), "the interests of society and the victims," because defendant,

who was unemployed and suffering from addiction, represented that the she

could only restore $1,800 of the $30,000 in stolen jewelry; a "woefully" small

percentage that would not be in the victim's or society's best interest to accept.

In addition, however, the prosecutor found factors two and eight, 1 and detailed

  The State acknowledged in its merits brief that defendant's failures to appear
were incorrectly categorized as supporting factor eight, N.J.S.A. 2C:43-
12(e)(8). The State maintains that defendant's failures to appear are s till a
relevant consideration under N.J.S.A. 2C:43-12(e)(3), "the motivation and age
of the defendant."
each in his statement of reasons. As to factor two, N.J.S.A. 43-12(e)(2), "the

facts of the case," the prosecutor gave weight to the fact that defendant took

advantage of the victim's kindness with an act of greed. As to factor eight,

N.J.S.A. 2C:43-12(e)(8), defendant's "continuing pattern of anti-social

behavior," the prosecutor emphasized that defendant's failure to appear at her

arraignment in 2011, the hearing in September 2013, and her failure to appear

at another hearing in June 2018, reflected a "complete disregard for the

criminal justice system" that rendered her an "[un]acceptable candidate for the

PTI program." These factors supporting the prosecutor's veto make clear that

defendant's inability to pay restitution was not the "sole" factor.

      Moreover, defendant's inability to pay restitution was not the

determinative factor supporting the denial. Rather, defendant's pattern of

misconduct and inability to appear was. The prosecutor emphasized in both

his statement of reasons and throughout the litigation that he was giving

substantial weight to defendant's failures to appear and comply, which showed

defendant's lack of motivation to avail herself of PTI. Defendant's failure to

appear more than four times, and her disappearance for a period of years before

being brought in on bench warrants, evidences that she is not "amen[able] to

correction" nor "responsive[] to rehabilitation." See RSI Bank., 234 N.J. at

474.   At the hearing on defendant's motion for admission into PTI over the

prosecutor's objection, the assistant prosecutor argued defendant's conduct

alone should bar her entry into the program, noting that "unless there [is] some

compelling reason why this defendant should get PTI, based on her continued

lack of appearance, the State does not view this candidate as someone who

would be amenable to PTI." The assistant prosecutor made no similar mention

of defendant's inability to pay the restitution in full. The judge therefore

concluded that the prosecutor's denial was "not a patent[] and[] gross abuse of

discretion where the defendant, who was [admitted] in[to] PTI, did not even

make an attempt to comply with the terms of PTI," and that defendant was "not

a candidate for PTI because of the several failures to appear in this court, and,

the absolute failure to even attempt to comply when she was admitted into

PTI." We see no abuse of discretion in the denial.



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