NOT FOR PUBLICATION WITHOUT THE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-3254-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HEATHER QUINTANA,
Defendant-Appellant.
___________________________
Submitted June 28, 2016 – Decided June 8, 2017
Before Judges Espinosa and Kennedy.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 13-02-0089.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, on the brief).
Michael H. Robertson, Acting Somerset County
Prosecutor, attorney for respondent (James L.
McConnell, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In this appeal, defendant argues that the rejection of her
application for pretrial intervention (PTI) was a patent and gross
abuse of discretion, requiring reversal and a remand for
reconsideration and her admission into PTI. We affirm.
Defendant was first arrested on May 28, 2011, and later
charged with fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a),
fourth-degree unlawful possession of a prescription drug, N.J.S.A.
2C:35-10.5(e)(2), criminal mischief, N.J.S.A. 2C:17-3(a)(1), and
other crimes. She applied to PTI and was admitted by the court,
over objection from the State.
However, on November 30, 2012, prior to admission into PTI
for the first arrest, defendant was again arrested. Defendant had
been observed changing price tags on the merchandise at a
department store from higher prices to lower prices. She had then
purchased the items at a lower price, only to return them for the
full value of the higher price. Defendant had also attempted to
leave the store with unpaid items in her possession. Subsequent
to her arrest, the police seized from defendant several pills that
were controlled dangerous substances.
On February 13, 2013, defendant was indicted for third-degree
shoplifting, N.J.S.A. 2C:20-11(b)(3), and third-degree possession
of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). On
May 9, 2013, defendant again applied for admission into PTI.
On January 9, 2014, defendant went to trial for the events
of May 28, 2011. A jury returned a verdict of not guilty for the
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indictable charge of criminal mischief. However, in the bench
trial portion on January 13, 2014, defendant was found guilty of
the disorderly persons offenses of theft and resisting arrest.
The court sentenced defendant to one year of probation and fines.
On March 28, 2014, the criminal division manager rejected
defendant for admission into PTI for the charges relating to
November 30, 2012, reasoning that defendant's charge was part of
a continuing pattern of antisocial behavior and that she had a
previous record of violations, and that under Rule 3:28, her entry
required the State's approval. Defendant appealed, and the State
joined the criminal division manager's rejection, claiming that
defendant was still on probation and that she was "not an
appropriate candidate."
On July 31, 2014, in a written opinion, Judge Paul W.
Armstrong agreed with the State and denied defendant's appeal,
finding that the State's reasons were "legally sufficient," and
that defendant failed to "clearly and convincingly establish[]
'that the [State's] decision was either a gross and patent abuse
of discretion or arbitrary and unreasonable.'" Judge Armstrong
issued an order memorializing this decision on August 28, 2014.
On November 7, 2014, defendant pled guilty to the shoplifting
charge and to an amended disorderly persons charge for failure to
turn over a controlled dangerous substance. On February 13, 2015,
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defendant was sentenced to one year probation and fines. This
appeal followed.
On appeal, defendant argues that both the State and the trial
court erroneously applied Rule 3:28 Guideline 3(e), which states,
"[w]hile [PTI] is not limited to 'first offenders,' defendants who
have been previously convicted of a criminal offense should
ordinarily be excluded." Pressler & Verniero, Current N.J. Court
Rules, Guideline 3(e) on R. 3:28 (2017). Defendant argues that
she had been acquitted of any and all indictable crimes, and that
she had only been adjudicated on disorderly persons offenses. In
addition, defendant argues that the State failed to consider all
relevant factors of N.J.S.A. 2C:43-12(e). We do not agree.
Our review of a PTI rejection is "severely limited" and we
only review for 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)). Prosecutors have
broad discretion in decisions to admit or reject a defendant.
State v. K.S., 220 N.J. 190, 199 (2015); Leonardis, supra, 73 N.J.
at 381. We may not substitute our discretion for that of the
prosecutor. State v. Waters, 439 N.J. Super. 215, 237 (App. Div.
2015). The afforded deference is "enhanced" or "extra" in nature.
Negran, supra, 178 N.J. at 82 (quoting State v. Baynes, 148 N.J.
434, 443-44 (1997)).
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In broad strokes, PTI is a diversionary program that allows
defendants to avoid "the stigma accompanying a verdict of guilt
to any criminal offense." State v. Bell, 217 N.J. 336, 347 (2014).
"[E]ligibility for PTI is broad enough to include all defendants
who demonstrate sufficient effort to effect necessary behavioral
change and show that future criminal behavior will not occur."
State v. Roseman, 221 N.J. 611, 622 (2015) (quoting Pressler &
Verniero, Current N.J. Court Rules, Guideline 2 on R. 3:28 at 1167
(2015)). However, as noted above, "the decision to grant or deny
PTI is a 'quintessentially prosecutorial function.'" Id. at 624
(quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
A proper PTI determination is guided by the seventeen factors
enumerated in N.J.S.A. 2C:43-12(e), and by the Guidelines for
Operation of Pretrial Intervention in New Jersey, Pressler &
Verniero, Current N.J. Court Rules, Guidelines on R. 3:28 (2017).
A prosecutor's decision is an evaluation of a defendant's
"amenability to correction" and potential "responsiveness to
rehabilitation." N.J.S.A. 2C:43-12(b).
If a defendant chooses to challenge a rejection from PTI,
they must "allege and present any facts and materials . . . showing
compelling reasons for justifying admission, and establishing that
a decision against enrollment would be arbitrary and
unreasonable." Pressler & Verniero, supra, Guideline 2 on R. 3:28
5 A-3254-14T1
at 1234-35. "[A] defendant must 'clearly and convincingly
establish that the prosecutor's refusal to sanction admission into
[a PTI] program was based on a patent and gross abuse of his
discretion.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (emphasis
omitted) (quoting State v. Kraft, 265 N.J. Super. 106, 111-12
(App. Div. 1993)). Such a showing is defined as the following:
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); see also Negran, supra,
178 N.J. at 83.]
Here, we affirm the trial court's decision to deny defendant's
entry into PTI. We are satisfied, as was Judge Armstrong, that
there was no abuse of discretion on the part of either the criminal
division manager or the prosecutor. Although defendant had been
found not guilty on the indictable offense of criminal mischief,
she was still found guilty of disorderly persons conduct for theft
and resisting arrest, and sentenced to probation of one year. Her
second application for PTI, concerning the events of November 30,
6 A-3254-14T1
2012, was ultimately denied after she had been placed on probation.
Thus, defendant's prior criminal contacts, together with the most
recent arrest, establish valid reasons for denial premised on
consideration of Guideline 3(e).
Despite the fact that her prior criminal contacts were
disorderly persons in nature, and thus arguably outside the general
purpose that PTI is "limited to persons who have not previously
been convicted of any criminal offense," defendant's two arrests
within two years militate against an exception being made to that
general policy. N.J.S.A. 2C:43-12(a). That defendant was not yet
on probation at the time of her second arrest, nor actively
participating in PTI, is of no moment. Lastly, we note that it
is clear from the record that the factors of N.J.S.A. 2C:43-12(e)
were considered.
Affirmed.
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