NOT FOR PUBLICATION WITHOUT THE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-0493-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAYISHA FOSTER,
Defendant-Appellant.
Submitted December 21, 2016 – Decided April 5, 2017
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County,
Indictment No. 14-06-0559.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Assistant
Deputy Public Defender, of counsel and on the
brief).
Sean F. Dalton, Gloucester County Public
Defender, attorney for respondent (Joseph H.
Enos, Jr., Senior Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Tayisha Foster appeals from a decision denying her
admission into the pretrial intervention (PTI) program. She was
sentenced on September 4, 2015, in accordance with a plea agreement
after her guilty plea to a fourth-degree theft by unlawful taking,
N.J.S.A. 2C:20-3(a), to three years of probation with appropriate
fines and penalties. Her plea agreement reserved the right to
appeal her rejection from the PTI program. We affirm.
The theft charges arose from defendant's shoplifting of nine
bottles of perfume while at the Deptford Mall on January 19, 2014.
The Criminal Division Manager's letter recommending against her
admission into the PTI program stated that defendant was not a
good candidate based on PTI Guideline 3(e) in Rule 3:28, "Prior
Record of Convictions." That guideline states, "[w]hile [PTI] is
not limited to 'first offenders,' defendants who have been
previously convicted of a criminal offense should ordinarily be
excluded."
In 2010, defendant had received an "accelerated
rehabilitative disposition" (ARD) in Pennsylvania on two counts
of retail theft, one count of receiving stolen property, and one
count of possession of an instrument of a crime. In 2012,
defendant was convicted in the Cherry Hill Municipal Court of
"disturbing the peace." Defendant was placed on probation in 2012
in the Philadelphia County Municipal Court for retail theft.
Eleven months after this incident, on November 24, 2014,
defendant was charged in Voorhees Township with shoplifting,
2 A-0493-15T3
N.J.S.A. 2C:20-11(b)(1), and resisting arrest by flight, N.J.S.A.
2C:29-2(a)(2). The charges were downgraded and actually pending
at the time of defendant's PTI application. Defendant eventually
either pled guilty or was found guilty of disorderly persons
shoplifting on those charges.
Accordingly, the Criminal Division Manager opined that
"defendant's continuing criminal behavior as evidenced by her
prior record and present offense indicate that she is unlikely to
be deterred from criminal behavior through participation in the
Pretrial Intervention Program." The prosecutor agreed that
defendant was an inappropriate candidate because she was not
amenable "to the rehabilitative process of PTI." Defendant
appealed, and the rejection of her application was affirmed on
April 26, 2015.
In rendering her decision, the Law Division judge observed
that despite the benefit of a diversionary program, defendant had
subsequently been convicted of disorderly persons offenses,
including retail theft and disturbing the peace. That these events
all occurred close in time to each other, and to the charges in
this case, was a factor the court weighed heavily.
On appeal, defendant contends that rejection constituted a
gross and patent abuse of discretion. She asserts that the
rejection letter's failure to discuss factors weighing towards
3 A-0493-15T3
admission revealed a fatal flaw in the decision making process.
Specifically, she argues the following factors were omitted from
consideration: the minimal nature of the offense, her young age
of twenty-three, high school diploma, gainful employment, need to
avoid a criminal conviction in order to maintain her current
employment, and that she is not a drug addict. Defendant argues
that her admission into PTI would fulfill the legislative goals
of the program, and that denial is an abuse of discretion because
of the potential benefits to her and to society if she is admitted.
Unquestionably PTI, a diversionary program, allows defendants
in appropriate situations to avoid the potential stigma of a
conviction. State v. Bell, 217 N.J. 336, 347-48 (2014).
"Eligibility for PTI is broad enough to include all defendants who
demonstrate sufficient effort to effect necessary behavioral
changes and show that future criminal behavior will not occur."
State v. Roseman, 221 N.J. 611, 622 (2015).
However, determining which defendants should be diverted into
the PTI program "is a quintessentially prosecutorial function[.]"
State v. Wallace, 146 N.J. 576, 582 (1996) (citing Dalglish, 86
N.J. 503, 513 (1981)). A prosecutor enjoys broad discretion in
making these decisions. State v. K.S., 220 N.J. 190, 199 (2015).
The review process requires consideration of the non-exhaustive
list of seventeen statutory factors enumerated in N.J.S.A. 2C:43-
4 A-0493-15T3
12(e) in order to make the necessary individualized assessment.
Roseman, supra, 221 N.J. at 621-22. The Supreme Court has
promulgated the PTI guidelines found in Rule 3:28 that incorporate
the statutory goals. See N.J.S.A. 2C:43-12(e).
Our 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)
(citations omitted). A defendant bears a heavy burden on appeal,
and must clearly and convincingly establish that the prosecutor's
decision is a patent and gross abuse of discretion which has gone
so wide of the mark that fundamental fairness and justice require
judicial intervention. Watkins, supra, 193 N.J. at 520. An abuse
of discretion is found when a defendant can prove "that the [PTI]
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 of
judgment[.]'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div.
2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979), certif.
denied, 222 N.J. 18 (2015)).
In this case, there was no abuse of discretion in the denial
of defendant's application. Defendant's criminal history
demonstrates she has been unable to effect the necessary behavioral
changes to become law abiding. That she was charged even after
5 A-0493-15T3
this arrest clearly makes her an inappropriate candidate. Her
prior criminal contacts, together with those accumulated after
this arrest, establish valid reasons for denial premised on
consideration of Guideline 3(e).
PTI eligibility is ordinarily "limited to persons who have
not been previously convicted of any criminal offense." N.J.S.A.
2C:43-12(a). Defendant's arrest history weighs against an
exception being made to that general policy. The cluster of
arrests before and after these charges demonstrates that she would
not benefit from the rehabilitative process available through PTI.
Consideration of the positive factors in her life does not refute
that conclusion. No patent and gross abuse of discretion occurred.
Affirmed.
6 A-0493-15T3