NOT FOR PUBLICATION WITHOUT THE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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