STATE OF NEW JERSEY VS. KAITLYN M. BRENNAN(14-02-0188, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0739-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAITLYN M. BRENNAN,

Defendant-Appellant.
___________________________________

Submitted December 21, 2016 – Decided March 16, 2017

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
14-02-0188.

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

Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM

Defendant Kaitlyn Brennan appeals the denial of her admission

into the Pretrial Intervention Program (PTI). We affirm.
 We discern the following facts and procedural history from

the record on appeal. On August 10, 2013, while living in her

parents' home, defendant and a co-defendant stole tools amounting

to approximately $762 from defendant's parents for drug money.

Subsequently, on October 28, 2013, defendant and a co-defendant

burglarized defendant's neighbor's home, stealing a television and

multiple pieces of jewelry valued at approximately $33,000.

On March 6, 2014, defendant was charged in an indictment with

third-degree theft, N.J.S.A. 2C:20-3(a) (counts one and five);

third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and

2C:20-3a (count two); third-degree burglary, N.J.S.A. 2C:18-2(a)

(count three); and third-degree conspiracy degree to commit

burglary, N.J.S.A. 2C:5-2 and 2C:18-2(a) (count four). Defendant

was also charged with one count of criminal mischief, a disorderly

persons offense, N.J.S.A. 2C:17-3A(1), and third-degree theft by

unlawful taking, by warrant complaint, N.J.S.A. 2C:20-3A.

Defendant applied for admission into PTI. The Criminal

Division recommended that defendant's application be rejected,

premised upon the fact that these offenses were not "victimless"

and that defendant is twenty-eight years old, has not worked in

two years, and will not be able to pay restitution and fees. By

letter dated April 30, 2014, the prosecutor explained that upon

consideration of the relevant factors enumerated in N.J.S.A.

2 A-0739-15T4
2C:43-12(e), in line with Rule 3:28, factors (1)-(2), (7)-(8) and

(14)-(17) militated against defendant's admission into PTI. Thus,

defendant's application was denied.

Thereafter, defendant appealed to the Law Division. A hearing

was held on September 11, 2014, before Judge Mary Gibbons Whipple,

who denied the appeal in a nine-page written opinion.

On July 1, 2015, defendant pled guilty to third-degree

conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2(a)

(count four). The remaining counts were dismissed. In accordance

with the plea agreement, on July 21, 2015, defendant was sentenced

to a three-year term of probation, fines and applicable costs, no

contact with her neighbors, and community service. This appeal

followed.

Defendant raises the following point on appeal:

POINT I

THE PROSECUTOR'S REFUSAL TO ALLOW DEFENDANT
TO ENROLL IN PTI CONSTITUTED A PATENT AND
GROSS ABUSE OF DISCRETION BECAUSE SHE FAILED
TO CONSIDER THE FACTORS THAT SUPPORTED
ADMISSION AND BECAUSE SHE, AND THE REVIEWING
COURT, PLACED EXCESSIVE AND UNJUSTIFIED WEIGHT
ON THE FACT THAT ONE OF THE CHARGES INVOLVED
A RESIDENTIAL BURGLARY.

On appeal, defendant argues the relevant PTI admission

factors were not considered. We disagree. Having reviewed the

record and the arguments made on appeal in light of the applicable

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law, we affirm substantially for the reasons set forth in Judge

Whipple's comprehensive and well-reasoned written opinion

upholding the prosecutor's decision. We add only the following

brief comments.

Judicial review of the State's decision for PTI is severely

limited. State v. Nwobu, 139 N.J. 236, 246 (1995) (citing State

v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)); 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 (citing Kraft, supra,

265 N.J. Super. at 111). 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.'" State

v. Negran, 178 N.J. 73, 82 (2003) (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,

4 A-0739-15T4
582 (1996) (alteration in original) (quoting Leonardis, supra, 73

N.J. at 382); accord Baynes, supra, 148 N.J. at 444.

In State v. Bender, the Supreme Court explained in detail the

definition 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.

[80 N.J. 84, 93 (1979) (citations omitted).]

Furthermore, "[a]bsent evidence to the contrary, it is presumed

that the prosecutor considered all relevant factors before

rendering a decision." State v. Dalglish, 86 N.J. 503, 509 (1981);

see Wallace, supra, 146 N.J. at 584 ("We presume that a prosecutor

considered all relevant factors, absent a demonstration by the

defendant to the contrary."); see also Bender, supra, 80 N.J. at

94 ("[U]ntil a defendant demonstrates the contrary, our judges

must presume that all relevant factors were considered and weighed

prior to a prosecutorial veto.").

Here, in pertinent part, the judge held:

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 In sum, with the exception of the
defendant's criminal history, the State has
demonstrated an appropriate consideration of
the statutory criteria governing her PTI
application. This [c]ourt finds that the
State's consideration of N.J.S.A. 2C:43-
12(e)(8) does not render its denial of the
defendant's application an abuse of discretion
or a clear error in judgment. Instead, the
[c]ourt finds that the State advances other
factors that adequately support the decision
to reject her application. In particular, the
victim's interests, the prosecution of the co-
defendant for conspiracy, and the State's
interest in prosecuting and deterring offenses
of this nature are alone sufficient to uphold
the State's decision. The defendant does not
advance any compelling reasons for this
[c]ourt to override the prosecutor's exercise
of discretion in this case. In addition, the
[c]ourt finds that a remand to the prosecutor
as a result of its deficient consideration of
the defendant's lack of criminal history or
continuing pattern of antisocial behavior will
serve no useful purpose in light of the other
factors that amply support the rejection.

Guided by these considerations, we are satisfied that the

judge's findings regarding the prosecutor's articulated reasons

for rejecting defendant's admission into PTI are supported by the

record. The prosecutor's rejection of defendant's PTI application

was not a patent and gross abuse of discretion as the decision

"was[] premised upon a consideration of all relevant factors" and

did not "amount[] to a clear error in judgment" that subverts "the

goals underlying Pretrial Intervention." Bender, supra, 80 N.J.

at 93. While sympathetic to defendant's rehabilitation and

6 A-0739-15T4
sobriety efforts, we have consistently allowed prosecutors wide

latitude in deciding whom to admit into PTI. See Negran, supra,

178 N.J. at 82.

Upon review of the record in light of our highly deferential

standard of review, we conclude the prosecutor's decision was

premised upon relevant and appropriate factors. As such, it was

not an "arbitrary, patent and gross abuse of discretion."

Affirmed.

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