NOT FOR PUBLICATION WITHOUT THE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-4298-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CYNTHIA NGUYEN,
Defendant-Appellant.
Submitted March 25, 2019 – Decided April 12, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No.
16-10-1737.
Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica L. do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Cynthia Nguyen appeals from the trial court's denial of her
post-plea motion for admission into the Pretrial Intervention (PTI) program over
the prosecutor's objection. We affirm.
The relevant facts are accurately summarized in the trial court's cogent
oral decision, as follows:
[O]n August [7], 2016 Belmar Police were dispatched
to the Belmar Marina on 10th Avenue to respond to a
vehicle parked in a travel lane. The vehicle was parked
facing the wrong direction and [d]ispatch was informed
that the driver . . . appeared to be asleep or unconscious.
When police arrived at the scene . . . defendant
woke up and immediately fled eastbound in the
westbound one-way lane on 10th Avenue. . . .
[D]efendant went through a red light, [and] made a left
onto Route 35 north. The police activated their
overhead lights and siren and followed . . . defendant's
vehicle onto Route 35 north for several blocks. . . .
[D]efendant ignored several traffic signals and
committed multiple motor vehicle violations.
When . . . defendant finally stopped her vehicle
she was approached by the pursuing officer with his
weapon drawn. . . . [D]efendant ignored the officer's
request to put her hands up. She kept her hands on the
steering wheel and stared forward. The officer opened
the driver's door and removed . . . defendant to place
her under arrest. . . . [D]efendant did not place her
vehicle in park and it hit the officer's patrol car.
Thereafter, defendant was charged in a Monmouth County indictment
with second-degree eluding, N.J.S.A. 2C:29-2(b). In September 2017, she pled
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guilty to an amended charge of third-degree eluding. In exchange, the State
recommended a two-year probationary sentence and agreed to dismiss all
thirteen motor vehicle summonses issued at the time of defendant's arrest. The
State "ma[de] no promises" regarding defendant's intention to apply for PTI.
Defendant was thirty-nine years old and unemployed at the time of her
application. During the course of her interview with the PTI investigator,
defendant acknowledged "she was under the influence of her prescription
medication at the time of her arrest" for the present offense. She said she was
diagnosed with depression in 2012, hospitalized for two weeks as a result, and
thereafter prescribed Adderall and Risperdal. In particular, she claimed she
suffered from Post-Traumatic Stress Disorder (PTSD), but "declined to discuss
any of the details of her PTSD."
The program director denied defendant's application citing, among other
reasons, her "need [for] more intensive supervision than th[e] diversionary
program can provide." Specifically, "she would benefit from intensive
supervision and counseling." The director noted defendant "appeared to be
having some type of psychological episode as described in the police report"
when she committed the present offense. The director also stated defendant
failed to appear in court for the present offense, and was apprehended only after
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she was involved in an incident on a public bus, in which she threatened another
passenger with a screwdriver.
In a two-page memorandum, the prosecutor adopted the director's
findings, and summarized his reasons for likewise denying defendant 's
admission into the program. In doing so, the prosecutor cited six of the
seventeen applicable factors set forth in N.J.S.A. 2C:43-12(e).
Initially, the prosecutor cited the "nature of the offense," N.J.S.A. 2C:43-
12(e)(1), and the "facts of the case," N.J.S.A. 2C:43-12(e)(2), noting the danger
defendant posed "to herself and anyone else who happened to be in her path"
when eluding police. Secondly, the prosecutor cited the "motivation and age of
the defendant," N.J.S.A. 2C:43-12(e)(3), specifying that defendant had failed to
appear in court while released on bail for the present offense, which did "not
inspire confidence that PTI w[ould] be sufficient supervision . . . ."
Next, the prosecutor quoted the "existence of personal problems and
character traits which may be related to the applicant's crime and for which
services are unavailable within the criminal justice system, or which may be
provided more effectively through supervisory treatment and the probability that
the causes of criminal behavior can be controlled by proper treatment." N.J.S.A.
2C:43-12(e)(5) (factor five). In citing factor five, the prosecutor reiterated the
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4
director's concern that "[d]efendant has mental health issues that are currently
under[]addressed."
The prosecutor also cited the "extent to which the applicant's crime
constitutes part of a continuing pattern of anti-social behavior." N.J.S.A. 2C:43-
12(e)(8) (factor eight). Although the prosecutor acknowledged the remoteness
of defendant's six prior theft offenses, which were committed in the late 1990s,
he noted "the volume of [the offenses] demonstrate[d] that the present offense
is not an aberration." The prosecutor also referenced two arrests by the U.S.
Park Police in 2012 and 2013 that remained "open" at the time of her application.
Finally, the prosecutor cited N.J.S.A. 2C:43-12(e)(14), i.e. "[w]hether or
not the crime is of such a nature that the value of supervisory treatment would
be outweighed by the public need for prosecution." The prosecutor found "the
value of supervisory treatment is manifest."
In mitigation, the prosecutor considered "[d]efendant's tragic personal
history as reported by her" and "her college credits." On balance, however, the
prosecutor determined the factors weighed against her admission into the PTI
program.
Defendant appealed to the Law Division, primarily contending the
prosecutor denied her application based on a consideration of irrelevant factors.
A-4298-17T4
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Pertinent to this appeal, defendant argued the prosecutor improperly considered
factors five and eight. Specifically, defendant claimed her prior theft offenses,
for which she completed unsupervised probation in 1999, were remote. She also
contended the Park Police charges had been dismissed. Defendant further
argued the prosecutor's rejection "based upon her current mental health issues
was a patent and gross abuse of discretion and a clear error in judgment." She
claimed she had "completed substance abuse and psychological evaluations" and
"[was] complying with what ha[d] been asked of her."
The trial court upheld the prosecutor's decision to reject defendant's PTI
application. In rendering its decision, the court recognized its very limited scope
of review. See State v. Roseman, 221 N.J. 611, 624-25 (2015). Correctly citing
the legal standards, the court noted it lacked the authority in PTI matters to
substitute its own discretion for that of the prosecutor, even if it disagreed with
the prosecutor's decision. See State v. Nwobu, 139 N.J. 236, 253 (1995). The
court recognized it could reverse a prosecutor's PTI denial only if a defendant
clearly and convincingly demonstrated that the denial represents "a patent and
gross abuse of discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (citations
omitted).
A-4298-17T4
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Citing Nwobu, the court reiterated that to establish a patent and gross
abuse of discretion, a defendant must demonstrate "the prosecutor's decision was
not premised upon a consideration of all relevant factors, was based upon a
consideration of irrelevant or inappropriate factors, or amounted to a clear error
in judgment." 139 N.J at 247 (citation omitted); see also Roseman, 221 N.J. at
625. Importantly, the trial court understood that a patent and gross abuse of
discretion also required that the "[c]ourt must additionally find that the
prosecutorial error complained of will clearly subvert the goals underlying
[PTI]." See State v. Bender, 80 N.J. 84, 93 (1979).
Applying these well-established standards, the trial court initially agreed
with defendant that the Park Police charges should not have been considered by
the prosecutor in finding factor eight because no formal disposition was
available for those offenses. Nonetheless, the court recognized that in finding
defendant exhibited a pattern of anti-social behavior, the prosecutor also cited
defendant's six theft offenses from the mid-1990s.
Addressing defendant's challenge to the prosecutor's assessment of factor
five, the court noted the State did not dispute that defendant completed substance
abuse and mental health evaluations. Rather, the court recognized the
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prosecutor determined defendant's "refusal to discuss her PTSD with the PTI
investigator" suggested her mental health issues were under addressed.
The court also considered defendant's explanation that she eluded police
"reactively and not deliberately." The court found, however, that "defendant
still fled the scene with reckless disregard for her safety and the safety of
others." Ultimately, the court determined the prosecutor's rejection was not a
patent and gross abuse of discretion, nor was it arbitrary, capricious or
unreasonable. Accordingly, the court denied defendant's appeal.
Having been sentenced by the trial court to a probationary term of two
years, consistent with her plea agreement, defendant now solely appeals the trial
court's PTI ruling. She raises the following point for our consideration:
POINT I
THE PROSECUTOR'S DECISION TO REJECT
[DEFENDANT]'S PTI APPLICATION
CONSTITUTED A PATENT AND GROSS ABUSE OF
DISCRETION.
A. The Prosecutor Inappropriately Considered
Irrelevant Factors in Rejecting [Defendant]'s
Application.
B. The Prosecutor's Decision Amounted To A Clear
Error In Judg[]ment And Subverted The Goals of PTI.
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In particular, defendant claims "[t]he prosecutor's handling of . . . PTI
factors [five and eight] constituted an abuse of discretion because he
inappropriately considered [defendant]'s misdemeanor convictions from the
1990s, two U.S. Park Police arrests, and her mental health problems as reasons
for rejection." She seeks reversal of the court's order denying her PTI
application. In the alternative, defendant contends a remand is necessary for the
prosecutor to further consider her application. Based on our review of the record
and applicable law, we find her arguments unpersuasive.
We apply the same standard of review as the trial court, and review the
court's decision de novo. State v. Waters, 439 N.J. Super. 215, 226 (App. Div.
2015). Guided by our "severely limited" review, State v. Negran, 178 N.J. 73,
82 (2003), we determine the prosecutor cogently articulated several reasons for
denying PTI, and his consideration of irrelevant factors does not warrant a
reversal or a remand.
Regarding factor eight, we agree with the trial court that the prosecutor
improperly considered defendant's two "open" Park Police charges because
defendant's criminal history report indicates there is "no disposition available"
for both charges, and defendant maintains they were dismissed. See State v.
K.S., 220 N.J. 190, 199 (2015) (holding a PTI applicant's "prior dismissed
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9
charges may not be considered for any purpose" where the facts related to the
arrest are in dispute, or have not been determined after a hearing).
Arguably, if the Park Police charges were the only basis for the
prosecutor's finding of factor eight, we might consider remanding the matter for
the prosecutor to reconsider defendant's application after determining the
disposition of those charges. Here, however, the prosecutor also considered the
"volume" of defendant's prior theft offenses, even though he recognized they
were committed more than twenty years before commission of the present
offense.
Defendant claims her prior theft offenses were so remote they "cannot
constitute a 'continuing pattern' of anti-social behavior." To support her
argument, defendant cites our Supreme Court's decision in Negran. Defendant's
argument is misplaced.
In Negran, the prosecutor rejected the defendant's PTI application for a
third-degree eluding offense, because his "driving infractions spanned a period
of seventeen years, and ten years had elapsed since [the] defendant's last motor
vehicle offense." 178 N.J. at 79. Further, the defendant's "prior [driving while
intoxicated conviction] had occurred more than thirteen years before" his PTI
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application. Ibid. The Court thus determined the prosecutor improperly relied
on defendant's remote motor vehicle violations. Id. at 85.
Unlike the present matter, however, the defendant in Negran had
"voluntar[ily] participat[ed] in recent intensive and ongoing alcohol dependency
rehabilitation, . . . [and] had never been convicted of . . . any disorderly persons
offense[s.]" Id. at 79. Also unlike the present matter, the issue in Negran was
the remoteness of motor vehicle violations. Id. at 85. The Court did not consider
the remoteness of multiple prior misdemeanor or disorderly persons offenses.
Accordingly, defendant has not demonstrated the prosecutor inappropriately
considered factor eight in rejecting her application here.
Nor do we discern any error in the prosecutor's consideration of
defendant's mental health issues in finding factor five. See K.S., 220 N.J. at 202
("Because mental health issues impact [a PTI] assessment, the prosecutor is
required to consider a defendant's mental illness."). Despite defendant's efforts
to treat her PTSD medically, defendant candidly acknowledged the commission
of the present offense occurred while "she was under the influence of her
prescription medication[,]" yet she was reluctant to discuss her PTSD condition.
Under these circumstances, defendant's ongoing mental health issues present
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challenges that are best addressed under the umbrella of probation's supervisory
services and not the limited services provided by the PTI program.
We therefore conclude, as the trial court found, defendant failed to sustain
her "heavy burden" of demonstrating the prosecutor's rejection of her PTI
application was a patent and gross abuse of discretion. Even if the prosecutor
inappropriately considered factors five and eight, defendant did not demonstrate
the denial "clearly subvert[ed] the goals underlying [PTI]." Bender, 80 N.J. at
93. Defendant failed to make such a showing and failed to demonstrate that a
remand is required because the denial was "arbitrary, irrational, or otherwise an
abuse of discretion." Wallace, 146 N.J. at 583 (citation omitted). Moreover, a
remand would serve no useful purpose, ibid., where, as here the prosecutor's
consideration of all other factors is amply supported by the evidence in the
record.
Affirmed.
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