MICHAEL SUKENIK VS. MARINA DIZIK(DC-14769-15, BERGEN COUNTY AND STATEWIDE)DCPP VS. K.M. AND R.A.IN THE MATTER OF THE GUARDIANSHIP OF J.M.(FG-09-101-16, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

NOT FOR PUBLICATION WITHOUT THE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-4059-15T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

HANIYYAH ALI,

Defendant-Respondent.
___________________________________

Argued January 10, 2017 – Decided February 21, 2017

Before Judges Ostrer and Leone.

On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 15-08-2031.

John J. Lafferty, IV, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Diane M. Ruberton,
Acting Atlantic County Prosecutor, attorney;
Mr. Lafferty, of counsel and on the briefs).

Tamar Lerer, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Ms. Lerer,
of counsel and on the brief).

PER CURIAM

The State appeals from the trial court's May 19, 2016, order

compelling defendant's enrollment in the Pretrial Intervention
Program (PTI) over the prosecutor's objection. In an August 2015

Atlantic County indictment, defendant, Haniyyah Ali, was

originally charged with second-degree aggravated assault involving

serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree

possession of a weapon, a knife, for an unlawful purpose, N.J.S.A.

2C:39-4(d); and fourth-degree unlawful possession of a weapon, a

knife, N.J.S.A. 2C:39-5(d).1

The State argues it did not engage in a gross and patent

abuse of discretion in denying PTI admission; therefore, the State

asks us to reverse the trial court's order and reinstate the denial

of PTI. Defendant asks us to affirm the order. We shall do

neither. Having considered the parties' arguments in light of the

record and applicable law, we reverse the trial court's order, but

we remand for reconsideration because the prosecutor may have

applied a blanket rule to deny PTI whenever a violent crime victim

1
The trial judge stated that the aggravated assault charge was
amended in February 2016 to a third-degree charge. However, the
record is not entirely clear on that point, as it does not include
a conforming order, and the prosecutor stated in her April 2016
rejection letter that the prosecutor "may" amend the indicted
charge to a third-degree charge "for the purposes of a plea." On
the other hand, the criminal division manager's March 2016
rejection did not refer to the crime charged as one in the first
or second-degree range. Also, in oral argument on the motion to
compel admission to PTI, defense counsel asserted, without
contradiction, that the indictment was amended on the record before
a different judge. However, we have not been provided with the
transcript.

2 A-4059-15T1
objects to admission. As a result, the prosecutor may have

disregarded relevant factors. See State v. Baynes, 148 N.J. 434,

445 (1997). Under such circumstances, even if a patent and gross

abuse of discretion has not been established, a remand is

appropriate. See State v. K.S., 220 N.J. 190, 200 (2015).

I.

When defendant applied for PTI, she had no prior criminal

convictions, or adjudications of delinquency. This case was her

first contact with the criminal justice system. She had overcome

challenges of a disadvantaged youth and, before the incident, was

gainfully employed as a New Jersey Transit bus driver. Defendant

was also a twenty-five-year-old single mother of two children.

On June 9, 2015, after working a ten-hour shift, defendant

headed to an Atlantic City playground to pick up her children.

Her identical twin sister had been watching them for the day. As

she approached the playground, a fight broke out involving her

sister and several other women, including the victim, K.H. K.H.

knew defendant and her sister because defendant's sister had a

child with K.H.'s brother. In the course of the altercation, K.H.

was stabbed near the armpit, suffered a partially collapsed lung,

and was hospitalized for three days. According to a police report,

the stab wound was caused by a four-inch-long knife.

3 A-4059-15T1
 The State contends defendant stabbed K.H. K.H. alleged that

after the fight initially stopped, defendant briefly returned to

her vehicle, then approached K.H. again, and struck her in the

chest. Only later did K.H. realize she was stabbed.

Defendant disputes the State's version of events. She

contends K.H. and her cohorts were the aggressors. She also

contests the allegation that she wielded a knife. The person who

drove with defendant to the playground certified that she never

returned to the vehicle during the altercation. According to a

police report, K.H. initially identified her assailant as the

mother of her brother's child — in other words, defendant's sister.

The criminal division manager rejected defendant's PTI

application. She cited the violent nature of the offense charged,

and Guideline 3(i). See Guidelines for Operation of Pretrial

Intervention in New Jersey (Guidelines), Pressler & Verniero,

Current N.J. Court Rules, Guideline 3(i) at 1235 (2017). She also

noted the victim's opposition to defendant's admission into PTI.

She acknowledged that defendant met "several factors for

admission, including having no prior criminal history and a

consistent history of employment[.]" However, "[t]he facts of

this case and the wishes of the victim outweigh any benefits that

would be realized through diversion."

4 A-4059-15T1
 The prosecutor concurred in the rejection. As did the

criminal division manager, the prosecutor focused on the nature

of the offense and the victim's opposition, which outweighed

defendant's amenability to rehabilitation. After citing factors

one (the nature of the offense), two (the facts of the case) and

ten (whether the crime was of an assaultive or violent nature),

see N.J.S.A. 2C:43-12(e)(1), (2), (10), she concluded that the

violent and assaultive nature of the offense triggered a

presumption of rejection:

[T]he matter was properly the subject of a
presumptive rejection in the offense was
deliberately committed with violence or the
threat of violence against another person.
The defendant was indicted for an Aggravated
Assault, second degree, Possession of a Weapon
for Unlawful Purpose, third degree and
Unlawful Possession of a Weapon, fourth
degree.

The prosecutor reviewed the facts of the incident from the State's

perspective, and then concluded:

The presumption against enrollment for crimes
of violence is appropriate in this case
because the defendant used a deadly weapon to
inflict the victim's injuries. Crimes of
violence, especially [those] in which injury
is inflicted by the use of a deadly weapon,
require the greater level of deterrence
available through formal criminal
prosecution.

The prosecutor acknowledged that defendant disputed the State's

version of events, but that did not affect her decision.

5 A-4059-15T1
 The defense denies the possession or use of a
deadly weapon by the defendant. The defense
further claims that the defendant was acting
in self-defense and in defense of others by
protecting her sisters. If the defendant
truly believes that she did not stab the
victim or was justified in the use of force,
then she should seek an acquittal at trial.
PTI is an inappropriate forum for widely
divergent factual situations.

The prosecutor also relied on the victim's opposition, citing

factor 4, N.J.S.A. 2C:43-12(e)(4).

[T]he victim is opposed to the diversion of
the defendant. It is understandable that the
victim would be opposed given the injury that
she sustained and her hospitalization. The
State is unwilling to discount the victim's
opposition by agreeing to diversion in this
case.

Finally, citing factors 14 (whether the public need for

prosecution would outweigh the value of supervisory treatment),

and 17 (whether the harm to society from not prosecuting outweigh

the benefits of diversion), see N.J.S.A. 2C:43-12(e)(14), (17),

the prosecutor acknowledged, but found unavailing, defendant's

amenability to supervision and the benefits that would be achieved

through her admission:

[T]he nature of the offense, the facts of the
case and the strong need to deter this
defendant and others similarly situated
outweigh any benefits that would be realized
through diversion. The State has reviewed the
materials submitted by the defense on behalf
of the defendant. The State recognizes that
the defendant has had gainful employment in

6 A-4059-15T1
 the past, is the sole provider for her two
children, is remorseful and has no criminal
history. These factors may be relevant for
sentencing but are not considered compelling
as to overcome the presumption of enrollment
for crimes of violence. The State is also
aware that the decision not to divert would
negatively impact the defendant's chance to
reapply for her job. The State has considered
that impact, however, the need for specific
and general deterrence warrant formal criminal
prosecution.

Defendant appealed to the Law Division. Referring to the

State's brief, which is not before us, defense counsel argued the

prosecutor gave undue weight to the victim's preferences. The

assistant prosecutor — who was not the one who signed the rejection

letter — defended the State's reliance on the victim's views. She

argued:

[O]n page six [of the State's brief] I write,
the program is intended for victimless
offenses only. And that's accurate. It is
intended for victimless offenses only. There
are times where aggravated assaults do get
into PTI. However . . . those are . . .
typically times when the victim does consent
to the entry.

The assistant prosecutor amplified her view that a victim's

opposition was controlling:

[W]hen the entire case focuses on a serious
assault, of course the victim has control. I
mean, if the victim doesn't want to come to
court, doesn't want to have anything to do
with it, that's considered. If the victim is
in the hospital for a long period of time, is
very aggrieved by the situation, is out of

7 A-4059-15T1
 work, is scared, is hurt, of course, we take
that into consideration. So, I think that
it's not really accurate to say that the
victim shouldn't control the prosecution. In
fact, they do and they're very involved.

The trial court granted defendant's appeal and ordered her

acceptance into PTI. In a written decision, the judge rejected

the State's contention that "the program is intended for victimless

offenses only." The judge found that both the criminal division

manager and the prosecutor gave insufficient weight to the facts

of the case. Closely analyzing the competing versions of events,

the court identified weaknesses in the State's proofs, noting the

possibility that the victim misidentified defendant as her

assailant, as opposed to her identical twin sister; the victim's

bias against defendant and her sister; and the lack of any other

eyewitness to the stabbing. The court also highlighted the fact

that defendant's involvement in the altercation was unexpected;

she became involved to defend her sister and children; and the

victim was not without fault, having participated in the fight.

The court concluded the rejection was "arbitrary, unreasonable,

and otherwise capricious" based on the failure to "consider all

of the salient facts, combined with the Defendant's lack of

propensity for violence."

The State's appeal followed. The State contends defendant

failed to present evidence of "extraordinary or unusual

8 A-4059-15T1
circumstances" that would compel overriding the presumption

against admission in cases of violent crime. The State also

disavowed the views expressed by the assistant prosecutor in oral

argument, and asserted that they did not affect the rejection set

forth in the earlier letter that a different assistant prosecutor

signed. The State contended that even if it failed to consider

all relevant factors, a remand for reconsideration, as opposed to

an order compelling admission, was appropriate.

Defendant contends the prosecutor's reliance on the victim's

opposition amounted to an unauthorized per se rule. She argues

the trial court correctly found that the prosecutor committed a

patent and gross abuse of discretion in denying her admission to

PTI.

II.

We afford prosecutors "broad discretion to determine if a

defendant should be diverted." K.S., supra, 220 N.J. at 199. Our

scope of review is "severely limited[,]" and addresses "only the

most egregious examples of injustice and unfairness." State v.

Negran, 178 N.J. 73, 82 (2003) (internal quotation marks and

citation omitted). "[T]o overturn a prosecutor's decision to

exclude a defendant from the program, the defendant must clearly

and convincingly show that the decision was a patent and gross

9 A-4059-15T1
abuse of . . . discretion." K.S., supra, 220 N.J. at 200 (internal

quotation marks and citation omitted).

However, "[i]ssues concerning the propriety of the

prosecutor's consideration of a particular [PTI] factor are akin

to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104

(1979). "Consequently, on such matters an appellate court is free

to substitute its independent judgment for that of the trial court

or the prosecutor should it deem either to have been in error."

Id. at 105; see also Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.").

A prosecutor must set forth his or her reasons for rejecting

a PTI candidate. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A

prosecutor "may not simply 'parrot' the language of relevant

statutes, rules, and guidelines." Id. at 249. Among other

purposes, a detailed and defendant-specific statement of reasons

enables a defendant to respond, promotes confidence in the

prosecutor's decision making, and facilitates judicial review.

Ibid.

The prosecutor may not weigh inappropriate factors, or ignore

appropriate factors. K.S., supra, 220 N.J. at 200. A PTI

10 A-4059-15T1
rejection "must reflect only a proper consideration of the

identified information . . . ." Id. at 198 (internal quotation

marks and citation omitted). Although the facts of the case and

the nature of the offense are appropriate considerations, "the PTI

process is not designed to assess the weight of the State's case.

'[T]he appropriate administration of the program militates against

basing enrollment upon the weight of the evidence of guilt.'"

Nwobu, supra, 139 N.J. at 252 (quoting State v. Smith, 92 N.J.

143, 147 (1983)).

A prosecutor is not required to address each of the seventeen

statutory criteria for participation. See N.J.S.A. 2C:43-

12(e)(1)-(17). A reviewing court shall "presume that a prosecutor

considered all relevant factors, absent a demonstration by the

defendant to the contrary." State v. Wallace, 146 N.J. 576, 584

(1996). However, a prosecutor may not establish an inappropriate

blanket or per se rule barring admission; doing so means the

prosecutor has failed to consider all relevant factors. See State

v. Caliguiri, 158 N.J. 28, 44 (1999); see also Baynes, supra, 148

N.J. at 445.

Any defendant may apply for PTI, but the Guidelines create a

rebuttable presumption against admission in cases involving

certain crimes, including those "deliberately committed with

violence or threat of violence against another person[.]" Pressler

11 A-4059-15T1
& Verniero, supra, Guideline 3(i) at 1235. In such cases, "the

defendant's application should generally be rejected." Ibid.; see

also Baynes, 148 N.J. at 442.

To neutralize such a presumption, an applicant must

demonstrate "extraordinary and unusual circumstances." State v.

Roseman, 221 N.J. 611, 663-24 (2015). These may pertain to aspects

of a defendant's background. Id. at 623 (citing Nwobu, supra, 139

N.J. at 252-53). But, the facts of the case may also satisfy a

showing of extraordinary and unusual circumstances. See id. at

626-27 (finding the factual circumstances of the offense and the

defendant's own actions to report it "were sufficiently

'extraordinary and unusual' to overcome the presumption against

PTI for second-degree offenses").

In determining whether extraordinary and unusual

circumstances exist, a court must engage in a "fact-sensitive

analysis that requires consideration of 'idiosyncratic'

circumstances demonstrating that denial of PTI has resulted in a

'serious injustice.'" Id. at 624 (quoting Nwobu, supra, 139 N.J.

at 252). Furthermore, when the defendant is charged with a third-

degree offense, the Court has declared that the weight of evidence

required to rebut the presumption against PTI is not as great as

if the defendant faced a second-degree charge. Caliguiri, supra,

158 N.J. at 44.

12 A-4059-15T1
 To meet the "gross and patent abuse of discretion" standard

to justify supplanting the prosecutor's decision, a defendant must

satisfy one of three factors and must also show the prosecutor's

decision undermines the purpose of PTI:

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.

[State v. Bender, 80 N.J. 84, 93 (1979)
(citation omitted).]

However, when a defendant has not met this high standard, but

nonetheless has demonstrated an abuse of discretion — for example,

the prosecutor considered inappropriate factors — a remand is

appropriate.

When a reviewing court determines that the
"prosecutor's decision was arbitrary,
irrational, or otherwise an abuse of
discretion, but not a patent and gross abuse
of discretion," the reviewing court may remand
to the prosecutor for further consideration.
Remand is the proper remedy when, for example,
the prosecutor considers inappropriate
factors, or fails to consider relevant
factors.

[K.S., supra, 220 N.J. at 200 (quoting State
v. Dalglish, 86 N.J. 503, 509 (1981)).]

13 A-4059-15T1
 As the Court explained, this middle-ground preserves the

opportunity for the exercise of the prosecutor's discretion, while

assuring that the PTI standards are properly employed. Ibid.

III.

Applying these principles, we conclude the trial court erred

in compelling defendant's admission into PTI. The trial court

appropriately reviewed the prosecutor's consideration of the facts

of the case. However, the court appeared to fault the prosecutor

for failing to consider the weaknesses in the State's case. The

court focused on defendant's allegations that she confronted a

fight unexpectedly, the victim was a participant, and defendant

may have been motivated by a desire to protect her sister and

children. As noted, the PTI process is not designed to assess the

strength of the State's case.

The trial court also did not clearly articulate whether

"extraordinary and unusual circumstances" existed to overcome the

presumption against admission into PTI of persons charged with

deliberately violent offenses. Instead, we are convinced the

trial judge substituted his judgment for the prosecutor's, which

is inconsistent with the required deferential standard of review.

See Wallace, supra, 146 N.J. at 589 (reversing where "court

essentially evaluated the case as if it stood in the shoes of the

prosecutor").

14 A-4059-15T1
 On the other hand, we are unconvinced the prosecutor fairly

considered all relevant factors. Our doubts are grounded in the

assistant prosecutor's remarks at oral argument — and, apparently,

in her written submission — that PTI is only appropriate for

victimless crimes, or cases in which the victim does not object.

We recognize that the views of the victim are relevant to the

prosecutor's decision. See N.J.S.A. 2C:43-12(e)(4); see also N.J.

Const., art. I, para. 22 (stating "A victim of a crime shall be

treated with fairness, compassion and respect by the criminal

justice system."). And, one goal of PTI is to divert defendants

in cases of "victimless" crimes. See Pressler & Verniero, supra,

Guideline 1(c) at 1233. Yet, a per se rule granting victims a

veto over her assailant's admission into PTI is unauthorized by

the statute or the Guidelines. The assistant prosecutor's

statements raise questions about whether the prosecutor

considered, and gave due weight to other relevant factors.

We cannot accept the State's argument that the assistant

prosecutor's statements were an unauthorized and mistaken

expression of prosecutor's office policy, and that they did not

affect the office's earlier written denial. Apparently, the

remarks were not impromptu, but repeated a point of view that was

expressed in the State's brief, which we presume received some

level of supervisory review. Although the earlier, written

15 A-4059-15T1
rejection letter did not express a per se rule, we lack confidence

to conclude that such a rule was not at work. Rather, a remand

is necessary for reconsideration of defendant's application, free

of any per se rule recognizing a victim veto.

In reconsidering defendant's application, the prosecutor

should also engage in a fact-sensitive analysis as to whether

defendant has overcome the presumption against admission in a case

of deliberate violence. In determining whether defendant presents

extraordinary and unusual circumstances, the prosecutor should,

consistent with Roseman, consider not only defendant's personal

background, but the facts of the case. If the aggravated assault

charge has already been amended to a third-degree charge, the

prosecutor should also be mindful that defendant bears a lesser

burden than she did when she faced a second-degree charge.

Reversed and remanded. We do not retain jurisdiction.

16 A-4059-15T1