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NOT FOR PUBLICATION WITHOUT THE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-0611-15T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRANDON J. GILL,
Defendant-Respondent.
________________________________
Argued February 6, 2017 – Decided September 8, 2017
Before Judges Sabatino, Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-07-0807.
Brian D. Gillet, Deputy First Assistant
Prosecutor, argued the cause for appellant
(Andrew C. Carey, Middlesex County Prosecutor,
attorney; Mr. Gillet, of counsel and on the
brief).
David R. Oakley argued the cause for
respondent (Anderl & Oakley, PC, attorneys;
Mr. Oakley, of counsel and on the brief).
PER CURIAM
The State appeals from a September 29, 2015 order denying its
motion for reconsideration. The State had asked the trial court
to reconsider its decision granting defendant's motion to be
admitted into the Pretrial Intervention Program (PTI) over the
State's objection. For the reasons that follow, we reverse and
remand for further consideration — by the prosecutor in the first
instance — the PTI decision concerning defendant.
These are the facts. Defendant, a Florida resident,
established a virtual relationship with a New York City resident
(his "girlfriend").1 The duration of their relationship is
unclear, however, their exchange of text messages indicates the
one-year anniversary of their first online meeting was approaching
in April 2014. In anticipation of their anniversary, defendant
and his girlfriend planned to meet in person.
Their March 2014 text message exchanges demonstrate defendant
and his girlfriend were enamored with one another. Defendant's
girlfriend was looking forward to their in-person meeting as much
as defendant. In fact, as late as the night of April 22, 2014,
she exchanged amorous, intimate text messages with defendant. That
changed the morning of April 23, 2014, the day before defendant
left for their in-person meeting.
1
The record is not entirely clear, but defendant and his
girlfriend might have communicated by phone as well as by text
messages.
2 A-0611-15T3
That morning, though defendant's girlfriend professed she
missed him, she revealed she had been at a party where she talked
and danced with another man. The other man laughed when she said
she had a boyfriend. During a dance, the man groped her and pinned
her against a wall. In a text message to defendant, his girlfriend
said she did not push the other man off when he touched her. She
also said she was drunk and did not remember the incident.
Defendant's responsive text messages reveal he was angry
about what had occurred between his girlfriend and the other man.
Defendant believed the other man had no respect for defendant's
relationship. Defendant's girlfriend texted defendant that she
would tell the other man to back off when she saw him later. The
text message exchange then reverted to amorous professions.
Later that afternoon, defendant's girlfriend disclosed in a
text message she had kissed the other man. Although she insisted
"it was the liquor," defendant texted her, "I don't want you
talking to him, hang[ing] around him, [texting] him, or none of
that cause that shit just crossed the line right there."
Defendant's girlfriend thought defendant was overreacting,
repeating "it was the liquor." Defendant replied: "Lucky I'm not
there to fuck his ass up and you know I'll do it if I see his
trifflin ass."
3 A-0611-15T3
Defendant said he would "let it go" because he was "not going
to let [it] mess up" his day or time together with his girlfriend.
He apologized for overreacting and accepted his girlfriend's
explanation that "it was the liquor."
Defendant's girlfriend went to the other man's house on the
afternoon of April 23, 2014, where they shared pizza and watched
a movie. When she returned home, she exchanged many text messages
with defendant. In some, the virtual couple professed their love
for one another, but the focus of the exchanges returned to
defendant's girlfriend's interaction with the other man.
Then, late on the night of April 23, after defendant had
packed for the drive to New York, his girlfriend became angry
about something he posted on Facebook. The content is not clear
from their text message exchange. Her anger escalated, however,
because she believed the Facebook content was an attempt to make
her look stupid. She told defendant to leave her alone. She said
repeatedly it was not the first time he had done things to make
her look stupid to his friends.
On the morning of April 24, 2014, as defendant prepared to
leave for New York, he asked his girlfriend for her address. She
texted him to forget it and to have fun, a message she repeated
several times. Although she never provided her address, defendant
drove to New York. As defendant drove up the East Coast, he
4 A-0611-15T3
continued to text his girlfriend in anticipation of meeting her.
The content and tone of the messages was that he loved her and
would not let anything prevent him from meeting her. Defendant's
girlfriend mostly ignored his text messages. She made it clear,
however, she did not want to spend time with him.
When defendant was approximately two hours from New York, he
texted his girlfriend and asked if he could stay with her because
he had no place to go. She replied he should put that message on
his Facebook to see what his friends thought about it. Later that
night, at 10:50 p.m., defendant told his girlfriend he was at
Central Park and asked if they could meet. By 1:05 a.m. on April
25, 2014, defendant still had not heard from his girlfriend, and
he told her he would be sleeping in his car.
At approximately 6:58 a.m. on April 25, defendant's
girlfriend finally texted defendant and asked where he was.
Defendant responded he was in Jersey City, and again requested to
see her. She refused, declining to provide defendant her home or
school address. At 7:14 p.m. on April 25, defendant texted his
girlfriend he was at the South Brunswick Police Station "getting
locked up." The following day, at 5:48 a.m., he explained to her
in a text message: "I had a gun [in] my car and I wasn't aware of
the gun laws in Jersey so I told them what I had and they searched
my car [and] didn't find anything."
5 A-0611-15T3
According to the arresting officer's investigation report,
on April 25, 2014, at approximately 2:56 p.m., he was dispatched
to a shopping center to investigate a suspicious vehicle that had
been parked for eight hours with its engine running. He and
another officer approached the vehicle, asked the driver for his
credentials, and identified the driver as defendant. Defendant
told the officers he left Florida the day before to meet friends
in New York City, arriving at 3:00 a.m. after traveling the entire
day. Defendant stated after meeting his friends, he left New York
City at 5:00 a.m. to travel home.
The officers found defendant's story suspicious, and noticed
defendant became increasingly nervous as their interaction
continued. They requested defendant step out of his vehicle, and
as defendant did so, one of the officers asked whether defendant
had weapons in his possession. Defendant replied he had a "'Glock
9MM' handgun in his glove compartment along with an extra loaded
magazine, a collapsible baton, and a knife." The police secured
the weapons, uncovering the fully loaded handgun and an additional
magazine, both containing hollow-point ammunition, the baton, and
the knife. The officers placed defendant under arrest and took
him to the police station.
The next day, on April 26, 2014, at 1:13 a.m., defendant told
his girlfriend his friend bailed him out of jail, and again asked
6 A-0611-15T3
whether they could meet. At 5:30 a.m., defendant's girlfriend
finally told defendant "this is so over" and to go home. Defendant
replied he had a court appearance in a few days and wished to stay
with her until then. Defendant's girlfriend refused to see him,
telling defendant to return home.
Following defendant's arrest, a Middlesex County grand jury
returned an indictment charging him with second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree
possession of a prohibited device, hollow-point ammunition,
N.J.S.A. 2C:39-3(f). Defendant applied for admission into PTI in
October 2014. As part of his application, he submitted character
letters from his parents, his pastor, and people in his community;
proof of his private employment and service with some distinction
in the United States Army Reserve; and the text messages between
himself and his online girlfriend. Additionally, defendant
submitted a letter from a friend who stated he gave the handgun
to defendant as a gift in 2013.
The Middlesex County Criminal Case Manager (CCM) recommended
the denial of defendant’s application. Defendant provided the
prosecutor with additional information in December 2014, and
January and February 2015. The information included an expert's
report citing Florida statutes authorizing the transport of
handguns in a vehicle’s glove compartment and possession of hollow
7 A-0611-15T3
point bullets. On February 18, 2015, an assistant prosecutor
rejected defendant’s PTI application. Defendant appealed.
On appeal, the trial court found the State’s rejection letter
"conclusory" and determined the State should have considered the
Attorney General's 2014 guidelines with respect to out-of-state
weapons offenders. The court remanded the matter to the
prosecutor, directing the prosecutor "reference each factor and
each fact that relates to that factor so that [the] [c]ourt [could]
understand the State's reasoning and not just its conclusions."
On April 13, 2015, the prosecutor filed its second rejection
letter, analyzing all seventeen criteria set forth in N.J.S.A.
2C:42-12(e) as they pertained to defendant's case. The prosecutor
also considered the Attorney General's 2014 guidelines in its
second rejection letter. Thereafter, the trial court issued a
written opinion admitting defendant into PTI over the State's
objection.
Following defendant's entry into PTI, the State moved for
reconsideration of the trial court's decision. The court denied
the State's motion in an oral decision, finding the State presented
"no new facts" in its application. The State now appeals the
trial court's decision admitting defendant into PTI, raising the
following argument:
8 A-0611-15T3
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION BY
ADMITTING DEFENDANT INTO PTI OVER THE STATE’S
OBJECTION, BECAUSE DEFENDANT FAILED TO SHOW
THAT THE PROSECUTOR’S REJECTION AMOUNTED TO A
PATENT AND GROSS ABUSE OF DISCRETION. THE
STATE PROPERLY CONSIDERED THE 2014 AG'S
CLARIFICATION IN MAKING THAT DECISION.
The criteria for admission into PTI, as well as the procedures
concerning the program, are set forth in N.J.S.A. 2C:43-12 to -22
and Rule 3:28. The Legislature's declaration of public policy
underlying PTI is found in N.J.S.A. 2C:43-12(a) and summarized in
Rule 3:28, Guideline 1. "Eligibility 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." R. 3:28, Guideline 2. Importantly, "[e]ach
applicant for supervisory treatment shall be entitled to full and
fair consideration of his application." N.J.S.A. 2C:43-12(f).
When prosecutors and program directors decide whether to recommend
a defendant for PTI, they are required to consider, among others,
the factors enumerated in N.J.S.A. 2C:43-12(e)(1) through (17).
Our review of a prosecutor's decision to deny a defendant
admission into PTI is "severely limited." State v. Negran, 178
N.J. 73, 82 (2003) (citations omitted). Judicial review of a PTI
application exists "to check only the most egregious examples of
injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246
9 A-0611-15T3
(1995) (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App.
Div. 1993)). Absent evidence to the contrary, a reviewing court
must assume that "the prosecutor's office has considered all
relevant factors in reaching the PTI decision." Id. at 249 (citing
State v. Dalglish, 86 N.J. 503, 509 (1981)).
Nonetheless, "[i]f a 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,' . . . a reviewing court may overrule the prosecutor
and order a defendant admitted to PTI." State v. Wallace, 146
N.J. 576, 582 (1996) (first alteration in original) (quoting State
v. Leonardis, 73 N.J. 360, 382 (1977)). Generally, a defendant
can establish a prosecutor has abused his or her discretion by
showing:
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.
[Id. at 583 (citations omitted).]
Additionally, if a "reviewing court determines that the
'prosecutor's decision was arbitrary, irrational, or otherwise an
10 A-0611-15T3
abuse of discretion, but not a patent and gross abuse' of
discretion, the reviewing court may remand to the prosecutor for
further consideration." State v. K.S., 220 N.J. 190, 200 (2015)
(quoting Dalglish, supra, 86 N.J. at 509). Thus, if a prosecutor
does not consider factors that should be considered, or does
consider factors that should not be considered, a remand is
appropriate. Ibid. "A remand to the prosecutor affords an
opportunity to apply the standards set forth by the court 'without
supplanting the prosecutor's primacy in determining whether
[Pretrial Intervention] is appropriate in individual cases.'"
Ibid. (alteration in original) (citation omitted).
Here, we agree with the trial court that the prosecutor
considered factors that should not have been considered in the
rejection of defendant's PTI application. We disagree, however,
with the trial court's remedy, namely, admitting defendant into
PTI over the prosecutor's objection. Rather, we conclude the
prosecutor's reliance on inappropriate factors constituted an
abuse of discretion but not a patent abuse of discretion. For
that reason, we remand to afford the prosecutor the opportunity
to apply the applicable standards without supplanting the
prosecutor's primacy in determining whether PTI is appropriate.
In the second letter explaining the decision not to admit
defendant into PTI, after detailing the facts in defendant's email
11 A-0611-15T3
exchanges and the arresting officer's report — with emphasis on
defendant's threats concerning the other man his girlfriend was
seeing — the assistant prosecutor reviewed each of the required
statutory criteria. She noted the rebuttable presumption against
admitting defendants charged with second-degree crimes into PTI,
Rule 3:28, Guideline 3(i), and rejected the notion defendant had
shown compelling reasons to overcome the presumption.
One theme of the assistant prosecutor's decision — which she
repeated and emphasized throughout her letter — was that before
leaving Florida, defendant loaded the gun and ammunition into his
car. The assistant prosecutor also repeatedly asserted that
defendant's nervousness, shaking hands, and evasive answers when
confronted by police in the parking lot "strongly show he knew
that he [did not] have the misimpression that the gun was lawfully
being possessed by him and also clearly makes suspect his motive
for having [the] weapons." The assistant prosecutor stressed
defendant "previously worked for a security company and is in the
military. Both occupations have rules and regulations regarding
firearms and the need to know and comply with them." The assistant
prosecutor declared "there is no way . . . defendant believed
honestly that his possession under those circumstances was lawful,
given his age, his prior military experience, and security job
experience."
12 A-0611-15T3
The assistant prosecutor also addressed the Attorney
General's September 24, 2014 letter regarding "Clarification of
'Graves Act' 2008 Directive with Respect to Offenses Committed by
Out-of-State Visitors From States Where Their Gun-Possession
Conduct Would Have Been Lawful" ("Clarification"). The
Clarification applies to Graves Act cases where the defendant is
an out-of-state resident who produces proof that: 1) the firearm
had been lawfully acquired in another jurisdiction, 2) defendant's
possession would have been lawful in his or her home jurisdiction,
and 3) defendant was under the misimpression that such possession
was lawful in New Jersey.
The assistant prosecutor acknowledged defendant produced
proofs the handgun was obtained lawfully and his possession of it
would have been lawful in his home jurisdiction. She did not
feel, however, defendant satisfied the third criteria, namely, he
was under the misimpression that such possession was lawful in New
Jersey. She found "clear evidence to the contrary" – defendant
did not immediately volunteer to the police that he had a gun in
the glove compartment; defendant's "nervousness and evasive
answers strongly show he knew that he [did not] have the
misimpression that the gun was being lawfully possessed by him and
also clearly makes suspect his motive for having these weapons";
and "[i]t was only after [the police] asked [defendant] out of the
13 A-0611-15T3
vehicle and asked him if there were any weapons in there that he
told them there were."
The trial court issued a written opinion rejecting the State's
reasoning and ordered defendant be admitted into PTI. After
recounting the facts, setting forth the procedural history, and
citing controlling precedent, the court concluded "this is one of
those rare cases that require reversal because the prosecutor has
so inappropriately weighed the relevant factors that the decision
amounts to a 'patent and gross abuse of discretion.'" The court
noted it was viewing the State's reasons "through the lens of the
Attorney General's [Clarification]."
The court began:
While the prosecutor is not required to
accept the defendant's explanation given in
furtherance of a PTI application, neither is
the prosecutor free to assume facts not found
in the record to justify the [S]tate's PTI
rejection. The April 13, 2015 rejection
letter repeatedly assumes that the defendant
specifically loaded the gun and ammunition
into the glove compartment as part of his
preparations for his trip to New York City.
The State also implies that the defendant took
the gun and ammunition as a direct consequence
of and in response to the text messages about
[the girlfriend's] revelations of her
interactions with another man. There is
nothing in the record to give credence to
these assumptions by the State. It is just
as likely that the gun and ammunition were
always kept in the glove compartment and were
not put in the car as part of preparation for
this trip. In fact, at no time during the
14 A-0611-15T3
prolonged text exchanges between [defendant]
and [his girlfriend] after [his girlfriend's]
rejection did threats of violence occur.
There were only the plaintive supplications
of a lovesick and disappointed suitor
interspaced with an accusation expression of
anger. Thus, the State's rejection letter
completely mischaracterized the defendant's
motivation. The State, in describing the
nature of the offense, also refers to the
knife and baton in the glove compartment. In
fact, the defendant was never charged with any
crime that related to the presence of these
items nor is there any suggestion that the
possession of these items was in any way
unlawful.
Concerning the assistant prosecutor's assertion that
defendant's prior employment as a security guard and current
military service "somehow indicat[ed] . . . defendant should have
known about the restrictions of New Jersey's gun laws," the court
explained:
This statement, in addition to having no basis
in the record, demonstrates a complete
inability or unwillingness to consider this
case in light of the Attorney General's
September 24, 2014 memorandum. The very
thrust of that memorandum is that cases, such
as this one, which primarily arise due to an
out-of-state defendant's lack of familiarity
with the strictures of New Jersey's gun laws,
should be fairly considered for PTI as they
fall outside the "heartland" of cases that are
subject to the Graves Act. To state that being
employed as a security guard in Florida or as
an Army Reservist based in Florida somehow
causes one to be charged with special
knowledge of New Jersey's gun laws is
inexplicable and in no way represents a
15 A-0611-15T3
logical and considered analysis of this
defendant's PTI application.
Similarly, the court noted that when discussing "the
assaultive or violent nature of the crime," the assistant
prosecutor "again makes assumptions that are prejudicial to the
defendant and, more importantly, not supported by any evidence."
The court continued: "[t]he State simply contends that the
defendant consciously loaded his gun for the purpose of going to
New York to seek out his rival for the affections of [his
girlfriend]. The State characterizes the defendant and his conduct
as 'obvious[ly] jealous, obsessive, [and] vindictive.'"
(Alterations in original). The court determined "[t]he facts do
not in any way provide any support for these assertions."
After pointing out other assertions by the assistant
prosecutor that the court found unsupported by the record, the
trial court stated:
This lack of thoughtful and reasoned
consideration throughout the prosecutor's
rejection letter amounts to a patent and gross
abuse of discretion. Even after a remand by
the court, the State has only set forth
conclusions and assertions unsupported by the
record. Even the initial program rejection
did not attribute any of the nefarious conduct
or motive to the defendant that appears for
the first time in the rejection letter. The
program describes [defendant] as a "family-
oriented individual who has led a law abiding
life for a substantial period of time."
Without any seeming basis in fact, the State
16 A-0611-15T3
seeks to paint a far more sinister portrait
to justify its rejection of this defendant for
PTI.
The court opined "defendant and the facts of this case fit
squarely into the four corners of [the Attorney General's
Clarification]." The court found defendant to be a law abiding
citizen of Florida who stopped while driving through New Jersey
to rest and get needed sleep, and defendant's possession of the
handgun and ammunition were lawful in his home state. The court
noted the letter from the person who gave defendant the gun as a
gift. The court also noted defendant's "text messages at the time
of his arrest clearly demonstrated . . . he had no idea that his
possession was unlawful in New Jersey." The court explained that
while stopping in a parking lot "was not as fleeting a contact as
merely transiting the [S]tate on an interstate highway, it was no
greater contact than stopping at a Turnpike rest area while passing
through." According to the court, the gun "was always in the
glove compartment in a holster. There is no indication that the
defendant ever planned to remove the gun from the holster or the
glove compartment. This offense was aberrational and isolated."
Explaining it was "undisputed that the defendant was in fact
a productive and law abiding member of society, serving his country
in a commendable manner," the court concluded:
17 A-0611-15T3
If the case at bar is not the case contemplated
for PTI enrollment both with an appropriate
weighing of the statutory factors, so as not
to engage in a patent and gross abuse of
discretion, and under the special factors set
forth in the Attorney General's
[Clarification], then it is virtually
impossible to contemplate what set of facts
would constitute an appropriate case for
enrollment.
We agree with the trial court that the assistant prosecutor's
determination was based in large part on inappropriate and
speculative factors. For example, one of the primary
considerations for the assistant prosecutor's refusal to admit
defendant into PTI was that he deliberately loaded his gun and
ammunition into his glove compartment before leaving Florida,
after having recently made threats against the other man his
girlfriend had seen. As the trial court correctly pointed out,
there is no factual evidence in the record to support this
speculation. Rather, the evidence established defendant was given
the gun as a gift and that it was legal in Florida to carry a gun
and ammunition in a glove compartment.2
Equally speculative is the assistant prosecutor's statement
that defendant's previous employment as a security guard and
current military service somehow make him knowledgeable about gun
2
The assistant prosecutor conceded these facts in her second
letter denying defendant's admission into PTI. The State has not
cited any Florida precedent to the contrary.
18 A-0611-15T3
laws in New Jersey and, by extension, knowledgeable about the gun
laws in every state. The assistant prosecutor cited no employment
regulations or manuals, or military regulations or manuals, from
which defendant should have derived such knowledge.
The assistant prosecutor's third thematic assumption – that
defendant's nervousness and shaking hands constitute strong
evidence that he knew possession of the gun in his glove
compartment was illegal – is also suspect. According to the police
report, which is part of the appellate record, defendant was a
twenty-five year old African American at the time of his arrest.
One could just as readily speculate that when confronted by police
in a faraway state, for doing nothing more than apparently sleeping
in a parking lot, a young black man might become nervous. His
hands might even shake.
These were not the only instances of unfounded suppositions
made by the assistant prosecutor. Other statements by the
assistant prosecutor also raise concerns about whether she fairly
considered placing defendant into PTI. For example, on page four
of her letter, after asserting defendant posted a retaliatory
"something" on Facebook and his girlfriend thereafter refused to
give him her address, the assistant prosecutor stated defendant
"loaded his gun, took along extra ammo, a collapsible baton and
knife and left Florida to go to New York via other states as well
19 A-0611-15T3
as New Jersey." After reiterating defendant drove through "the
remaining states" with his loaded gun not knowing where his
girlfriend lived, and then parked for eight hours in a shopping
center in New Jersey, the assistant prosecutor stated: "Not only
does this indicate an existence of a personal problem, but a
certain character trait that relates to his ego and need to carry
weapons which were presumably for a pure social visit . . . which
he refused to believe or accept . . . was cancelled." The assistant
prosecutor has cited no authority for the psychology underlying
her assertions about character trait, ego and the need to carry
weapons.
In any event, it is readily apparent the assistant prosecutor
made a decision "based upon a consideration of irrelevant or
inappropriate factors," Wallace, supra, 146 N.J. at 583, thus
calling into serious question whether defendant received "full and
fair consideration of his application." N.J.S.A. 2C:43-12(f). We
therefore conclude the assistant prosecutor abused her discretion
with respect to the reasons she cited in her decision.
Having said that, we disagree with the trial court that the
prosecutor's abuse of discretion was patent and gross, or that the
remedy must be admission into PTI. We reach this conclusion for
several reasons. First and foremost, defendant was charged with
a second-degree offense and was presumptively ineligible for PTI.
20 A-0611-15T3
Defendant was thus required to demonstrate compelling reasons to
overcome the presumption. In addition, there are many factors in
this case that, when objectively weighed and balanced, could tip
the scale in either direction. For example, in evaluating whether,
under the Attorney General's Clarification, there was minimal
exposure of the firearm to persons in New Jersey, the evidence
appears to indicate defendant kept the gun and ammunition in his
vehicle at all times and did not carry the gun on his person
outside the vehicle. Moreover, defendant's travel in New Jersey
was transitory, although he admittedly did stop to sleep.
On the other hand, the handgun was loaded and defendant kept
it in the glove compartment rather than in the trunk. Defendant's
failure to explain why the loaded gun and extra ammunition were
in the glove compartment may be a legitimate consideration against
his PTI admission.
In short, unlike the trial court, we are unable to conclude
on this record whether a full and fair consideration of defendant's
PTI application – which presupposes the absence of speculation or
consideration of inappropriate factors – will result in the denial
of defendant's admission into PTI. More importantly, when a
prosecutor has considered inappropriate factors, calling into
question whether defendant received full and fair consideration,
"[a] remand to the prosecutor affords an opportunity to apply the
21 A-0611-15T3
standards set forth by the court without supplanting the
prosecutor's primacy in determining whether [Pretial Intervention]
is appropriate in individual cases." K.S., supra, 220 N.J. at 190
(alteration in original) (citation omitted).
For the foregoing reasons, we reverse the trial court's order
admitting defendant into PTI. We remand this matter to the
prosecutor who shall afford defendant the opportunity to submit
current evidence in support of his PTI application. If defendant
is aggrieved by the prosecutor's decision, he may seek the relief
from the trial court provided by the applicable statute and court
rules. We intimate no views on the appropriate outcome which will
be based on an updated and fuller record and which must adhere to
the proper legal criteria as outlined in this opinion.
Reverse and remanded. We do not retain jurisdiction.
22 A-0611-15T3