NOT FOR PUBLICATION WITHOUT THE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-1099-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN M. RAMOS,
Defendant-Appellant.
_________________________________
Submitted September 18, 2018 – Decided September 28, 2018
Before Judges Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 16-10-
0752.
Joseph E. Krakora, Public Defendant, attorney for
appellant (Brian P. Keenan, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Brian M. Ramos was charged with fourth-degree credit card
theft, N.J.S.A. 2C:21-6(c)(1) and 2C:5-2(a)(1) and (2), third-degree fraudulent
use of a credit card, N.J.S.A. 2C-21-6(h) and 2C:5-2(a)(1) and (2), and second-
degree trafficking in personal identification information, N.J.S.A. 2C:21 -
17.3(b)(2). Defendant applied for admission into Pretrial Intervention (PTI).
The PTI director recommended defendant's acceptance into the program
but was overruled by the prosecutor. Following rejection of his PTI application
by the Somerset County Prosecutor, defendant filed a motion in the Law
Division appealing from that rejection that was denied by the trial court.
Defendant then pleaded guilty to the offenses, with count three being amended
to third-degree trafficking in personal information, and was sentenced.
Defendant appeals the order denying his motion to override the prosecutor's
rejection, arguing the trial court erred when it upheld the prosecutor's rejection
of his PTI application. We affirm.
On September 8, 2016, Bridgewater police officers were dispatched to
Bridgewater Commons Mall to investigate a report of defendant and other
suspects committing credit card fraud at Sephora. Defendant was arrested
outside the mall, and a search incident to his arrest uncovered a fraudulent credit
card with his name on it. The account number did not correlate with the credit
A-1099-17T3
2
card number on the reverse side of the card within the black magnetic stripe.
Police confirmed that this credit card, and other credit cards seized from co-
defendants that day, were fraudulently created. Defendant admitted that he
intended to use the card, which was not his, and that he "jointly possessed
identities of at least five people with [his] co[-]defendant[s]."
Defendant was eighteen years old at the time of his arrest. He has no prior
criminal convictions, no history of violence, and has never participated in any
diversionary programs.
Defendant applied for admission into PTI and was recommended for
admission by the director. In an eight-page, single spaced letter, the prosecutor
objected to defendant's admission into PTI, citing criteria 1 (the nature of the
offense), 2 (the facts of the case), 3 (the motivation and age of the defendant), 4
(the desire of the complainant or victim to forego prosecution), 5 (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), 7 (the needs and interests of the victim and society), 13 (any
involvement of the applicant with organized crime), 14 (whether or not the crime
A-1099-17T3
3
is of such a nature that the value of supervisory treatment would be outweighed
by the public need for prosecution), 15 (whether or not the applicant's
involvement with other people in the crime charged or in other crime is such
that the interest of the State would be best served by processing his case through
traditional criminal justice procedures, and 16 (whether or not the applicant's
participation in pretrial intervention will adversely affect the prosecution of
codefendants). N.J.S.A. 2C:43-12(e)(1), (2), (3), (4), (5), (7), (13), (14), (15),
(16). In his letter, the prosecutor referenced Rule 3:28 and Guideline 3(i), which
he acknowledged "we are supposed to consider [in] his individual
circumstances." The letter also states, "Defendant gave us nothing. He didn't
give us anything to review. All I have is, well, he got arrested at the mall with
everybody else with credit cards and we have to put that into context."
Defendant then appealed the denial of entry into PTI to the Law Division
that was opposed by the prosecutor. The PTI judge issued an order and a
nineteen-page written decision denying defendant's appeal. The decision
included a detailed review of the prosecutor's basis for rejecting defendant's PTI
application, including the fact-specific analysis of the statutory criteria set forth
in the prosecutor's statement of reasons.
A-1099-17T3
4
The judge found that the prosecutor "has not abused its discretion," and
weighed all of the factors in making his determination. The judge noted that the
prosecutor considered that this was "not an isolated incident," and the offense
"did not happen by chance or out of spur of the moment." Rather,
the offense was a culmination of multiple phases that
were well thought-out by defendant . . . such as . . . the
seeking out and purchasing of cloned credit cards; the
foresight and anticipation of the need of assistance in
completing the offense; traveling a substantial distance
from New York to Bridgewater, New Jersey; actively
seeking specific stores within the shopping center to
target; choosing items to purchase; [and] the attempt to
make a purchase with one of the cloned credit cards.
The prosecutor's position that "the offense at bar [is] a piece of an ongoing
organized criminal activity," militating against defendant's admittance to PTI,
notwithstanding his age, or excusing his participation as a youthful indiscre tion
was persuasive to the court. Finally, the judge found that the prosecutor had
engaged in an individualized assessment of the application. As a result, the
judge concluded that the prosecutor's rejection was not a per se or categorical
denial and did not amount to a patent and gross abuse of discretion.
Thereafter, defendant pled guilty to violating N.J.S.A. 2C:21-6(c)(1)
(credit card theft); N.J.S.A. 2C:21-6(h) and 2C:5-2(a)(1) (fraudulent use of a
credit card); and N.J.S.A. 2C:21-17.3b(2) (an amended count of third-degree
A-1099-17T3
5
trafficking in personal information). Defendant was sentenced to a concurrent
one-year probationary term, plus applicable fees and penalties.
Defendant appeals the denial of his PTI motion. See R. 3:28(g). He raises
the following arguments:
POINT ONE:
THE PROSECUTOR'S REJECTION OF
[DEFENDANT'S] PTI APPLICATION
CONSTITUTES A PATENT AND GROSS ABUSE
OF DISCRETION BECAUSE IT WAS PREMISED
ON AN IMPROPER PRESUMPTION AGAINST
ENROLLMENT, A CONSIDERATION OF
IMPROPER FACTORS AND A FAILURE TO
CONSIDER RELEVANT FACTORS.
A. THE PROSECUTOR IMPROPERLY APPLIED
A PRESUMPTION AGAINST ADMISSION
BASED ON [DEFENDANT'S] INDICTMENT
FOR A SECOND-DEGREE OFFENSE
RESULTING IN A CLEAR ERROR IN
JUDGMENT.
B. THE PROSECUTOR'S ERRONEOUS
DETERMINATION THAT [DEFENDANT]
WAS INVOLVED IN ORGANIZED CRIME
WAS BASED [UPON] UNRELATED
OFFENSES BY OTHER DEFENDANTS.
C. THE PROSECUTOR'S COLLECTIVE
EVALUATION OF [DEFENDANT'S] PTI
APPLICATION TOGETHER WITH HIS CO[-
]DEFENDANTS RESULTED IN A FAILURE
TO CONSIDER RELEVANT FACTORS AND
DEPRIVED HIM OF AN INDIVIDUALIZED
A-1099-17T3
6
ASSESSMENT OF HIS AMENABILITY TO
REHABILITATION.
After reviewing the record presented to the PTI judge and being mindful
of the enhanced deferential standard governing judicial review of prosecutorial
decisions affecting admission into this diversionary program, we affirm. We
conclude that the PTI judge did not err when she denied defendant's motion to
override the prosecutor's rejection of defendant's PTI application on the basis
that the prosecutor's decision did not constitute a "patent and gross abuse of
discretion" as defined by our Supreme Court in State v. Bender, 80 N.J. 84, 93
(1979).
Defendant argues that the prosecutor's rejection constituted a patent and
gross abuse of discretion and a presumption against admission because
defendant was indicted for a second-degree offense. However, the presumption
of rejection was duly found by the judge as not constituting error, or "a
compelling reason" for defendant's admission into PTI. The prosecutor's
argument that the implementation of the County Prosecutor's "Targeted
Enforcement Plan" (TEP), which had been created to specifically address the
rise in credit card fraud at the Bridgewater Commons Mall and the nature of the
offense and facts in the case "strongly militate against diversion." In our view,
A-1099-17T3
7
the judge used the appropriate deferential standard of review by finding no
patent and gross abuse of discretion.
As statutorily established in N.J.S.A. 2C:43-12 to -22, and as implemented
under Rule 3:28 and the Guidelines for Operation of Pretrial Intervention in New
Jersey, PTI is fundamentally a discretionary program. Subject to judicial
review, admission into PTI is based on a recommendation by the criminal
division manager, with the consent of the prosecutor. State v. Nwobu, 139 N.J.
236, 246 (1995). The prosecutor's assessment is to be guided by seventeen non -
exclusive factors enumerated in the PTI statute. N.J.S.A. 2C:43-12(e)(1)-(17).
Courts must "presume that a prosecutor considered all relevant factors, absent a
demonstration by the defendant to the contrary." State v. Wallace, 146 N.J.
576, 584 (1996).
"Deciding whether to permit diversion to PTI 'is a quintessentially
prosecutorial function.'" State v. Waters, 439 N.J. Super. 215, 225 (App. Div.
2015) (quoting Wallace, 146 N.J. at 582). "Prosecutorial discretion in this
context is critical for two reasons. First, because it is the fundamental
responsibility of the prosecutor to decide whom to prosecute, and second,
because it is a primary purpose of PTI to augment, not diminish, a prosecutor's
options." Nwobu, 139 N.J. at 246. "Accordingly, 'prosecutors are granted broad
A-1099-17T3
8
discretion to determine if a defendant should be diverted' to PTI instead of being
prosecuted." Waters, 439 N.J. Super. at 225 (quoting State v. K.S., 220 N.J.
190, 199 (2015)). In State v. Negran, 178 N.J. 73 (2003), the Court described
the wide but not unlimited discretion afforded prosecutors when reviewing PTI
applications, and the enhanced deference courts should employ:
In respect of the close relationship of the PTI program
to the prosecutor's charging authority, courts allow
prosecutors wide latitude in deciding whom to divert
into the PTI program and whom to prosecute through a
traditional trial. The deference has been categorized as
enhanced or extra in nature. Thus, the scope of review
is severely limited. Judicial review serves to check
only the most egregious examples of injustice and
unfairness.
A prosecutor's discretion in respect of a PTI application
is not without its limits, however. A rejected applicant
must be provided with a clear statement of reasons for
the denial. That writing requirement is intended to
facilitate judicial review, assist in evaluating the
success of the PTI program, afford to defendants an
opportunity to respond, and dispel suspicions of
arbitrariness. The requirement also enables a defendant
to challenge erroneous or unfounded justifications for
denial of admission.
[Id. at 82 (citations omitted); see also K.S., 220 N.J. at
199-200.]
As correctly noted by the PTI judge, the trial court must not substitute its
own discretion for that of the prosecutor even where the prosecutor's decision is
A-1099-17T3
9
one which the trial court disagrees or finds to be harsh. See State v. Kraft, 265
N.J. Super. 106, 112-13 (App. Div. 1993). "Trial courts may overrule a
prosecutor's decision to accept or reject a PTI application only when the
circumstances 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. Roseman, 221 N.J. 611, 624-25 (2015) (citations
omitted). We apply the same standard of review as the trial court, and review
its decision de novo. Waters, 439 N.J. Super. at 226.
In State v. Rizzitello, 447 N.J. Super. 301 (App. Div. 2016) we described
the burden imposed on a defendant seeking to overturn a prosecutorial rejection.
To establish the prosecutor's rejection of defendant's
PTI application amounted to a patent and gross abuse
of discretion, a defendant must prove, by clear and
convincing evidence, 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 313 (citations omitted).]
Defendant has not met his heavy burden. He has not shown that the
prosecutor's decision clearly subverted the goals underlying PTI. Conversely,
A-1099-17T3
10
granting defendant PTI would not necessarily serve all the goals of PTI set forth
in N.J.S.A. 2C:43-12(a)(1)-(5). We cannot say that the prosecutor's decision
could not have been reasonably made upon weighing the relevant factors. See
Nwobu, 139 N.J. at 254.
On the contrary, we find that the prosecutor properly considered and
weighed all of the relevant factors in reaching his decision to reject defendant's
application. Accordingly, we hold that the prosecutor's refusal to sanction
admission into the program did not constitute a patent and gross abuse of
discretion.
Defendant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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