STATE OF NEW JERSEY VS. LORRAINE S. MORGAN (17-06-0907, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-1637-17T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LORRAINE S. MORGAN,

Defendant-Respondent.
_________________________________

Submitted July 9, 2018 – Decided July 19, 2018

Before Judges Yannotti and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 17-
06-0907.

Joseph D. Coronato, Ocean County Prosecutor,
attorney for appellant (Samuel Marzarella,
Supervising Assistant Prosecutor, of counsel;
William Kyle Meighan, Senior Assistant
Prosecutor, on the briefs).

Roberts & Teeter, attorneys for respondent
(Michael B. Roberts, on the brief).

PER CURIAM
 The State appeals from the December 4, 2017 Law Division

order admitting defendant Lorraine S. Morgan1 into the Pre-Trial

Intervention (PTI) program over the prosecutor's objection. The

State argues that the trial court substituted its judgment for

that of the prosecutor, and that the prosecutor's decision to

reject defendant's PTI application was based upon a thorough

consideration of all appropriate factors and did not constitute a

gross and patent abuse of discretion. Having considered

defendant's contentions in light of the record and the applicable

law, we reverse.

By way of background, this matter returns to us following a

remand ordered in our previous opinion. State v. Morgan, Docket

No. A-3766-15 (App. Div. Mar. 13, 2017) (slip op. at 9-10). In

that case, the State appealed from a March 17, 2016 order admitting

defendant to PTI over its objection in connection with a prior

indictment alleging the same offense against defendant as that

involved in the present appeal. Id. at 1.

While that appeal was pending, the trial court dismissed the

indictment against two of her codefendants, Walter C. Uszenski and

Jacqueline Halsey, and all but two of the charges against Morgan.

1
Defendant Lorraine S. Morgan and her husband, codefendant Andrew
J. Morgan, share the same surname. To avoid confusion, we refer
to Lorraine S. Morgan as "defendant" and to Andrew Morgan as
"Morgan."

2 A-1637-17T2
Id. at 7-8. In view of this development, we remanded the matter

so that defendant could file her own motion to dismiss the

indictment against her. Id. at 9. In so ruling, we vacated the

trial court's order permitting defendant to enter the PTI program,

without prejudice to her right to file another application if her

motion to dismiss the indictment was unsuccessful. Ibid. We did

not retain jurisdiction. Id. at 10.

On remand, the trial court dismissed the indictment against

defendant. On June 20, 2017, however, a grand jury returned a

new, twelve-count indictment against defendant and her three co-

defendants.

Turning to the present appeal, we begin by summarizing the

factual basis the State presented in support of the June 20, 2017

indictment. In 2013, codefendant Uszenski was serving as the

superintendent of the Brick Township Public School District

(district). His daughter, codefendant Halsey, had a child

(Uszenski's grandchild), who was not yet five years old.

Therefore, the child was not eligible to attend kindergarten.

The State alleges that sometime in early 2013, Uszenski

decided that his grandchild should receive free full-time, pre-

school day care and free transportation to these services, together

with related services, at the district's expense. In order to

accomplish this goal, Uszenski, with Halsey's concurrence, sought

3 A-1637-17T2
to have his grandchild classified as a child with a disability,

which would make him eligible for these services at no cost to

Halsey. The State asserts that the grandchild was not disabled,

and was not entitled to these services at taxpayer expense because

he was still of pre-school age.

In order to receive special education services, the

grandchild needed an Individualized Education Program (IEP) that

was approved by the district's Director of Special Services

(Director). The State alleges that in June 2013, Uszenski decided

to remove the current Director from her position and install Morgan

in this post. Morgan, who was married to defendant, had previously

taught in a special education program in New York. However, in

1989, Morgan was arrested for, and later convicted of, felony drug

charges in that state. Uszenski and Morgan did not disclose those

convictions in connection with Morgan's appointment as Director.

For a number of years prior to Morgan's appointment, defendant

worked as a middle school principal in another school district.

It is not clear from the record whether she was employed during

the 2012-2013 school year. However, three weeks after Morgan was

retained, Uszenski recommended that the district's Board of

Education (Board) hire defendant as the district's Academic

Officer. According to the State, this position did not exist in

the district prior to defendant's appointment.

4 A-1637-17T2
 The State asserts that Halsey then submitted a fraudulent

application for special services for Uszenski's grandchild,

including the pre-school day care program. In response, Morgan

prepared a fraudulent IEP for the grandchild on July 11, 2013,

which approved his placement in the program, together with

transportation, at public expense. The grandchild entered the

program later in July, and continued receiving these services

through June 2014. The State estimated that these services cost

taxpayers over $50,000.

In December 2013, Morgan left his position with the district.

However, the State alleges that because of his relationship with

defendant, who remained one of the district's highest ranking

officials, Morgan continued to have considerable influence over

the operation of the special services department.

In June 2014, Halsey asked the district to declassify her

child, who was now five years old and ready to enter kindergarten

in September 2014. The State alleges that Halsey made this request

because, as a kindergarten student, the child would now be able

to attend public school full-time with bus transportation and,

therefore, was no longer in need of the free pre-school day care

and transportation services provided to pre-school special needs

students. Because of Halsey's action, the child was no longer

5 A-1637-17T2
classified as a child in need of special education services and,

therefore, he no longer had an IEP in place.

Nevertheless, Halsey was still intent on securing extra

academic and counseling services for Uszenski's grandchild, even

though he was not entitled to them because he was no longer

classified as a special needs student. In furtherance of this

scheme, the State alleges that Morgan contacted Susan Russell, his

replacement as Director, about setting up in-home counseling

services for the grandchild. Morgan falsely told Russell that a

"504 plan," which a child had to have in order to receive such

services, would be in place and that Russell needed to arrange for

the counseling services for the grandchild. He warned Russell,

"You really don't want to piss off . . . Superintendent [Uszenski].

You just got this job."

The State alleges that defendant was Russell's superior and

was responsible for authorizing payment for these types of

services. Morgan told Russell that defendant was aware of the

plan to provide in-home counseling for Uszenski's grandchild, but

that the request for payment would first be sent to Russell.

Morgan told Russell to bring the voucher form directly to

defendant, who would then authorize the payment.

Based upon Morgan's representation, Russell believed the

child had a 504 plan. Therefore, in August 2014, Russell called

6 A-1637-17T2
Rachael Gough, the district's Director of Special Education, 2 and

told her to set up the services. Russell also told Gough that she

should send her bill for the counseling services to Russell, rather

than through the regular channels.

Gough was unable to find an IEP or a 504 plan for the

grandchild because he had been declassified. Nevertheless, Gough

followed Russell's direction and went to Halsey's home to meet

with her concerning the grandchild. Gough then conducted two,

one-hour in-home counseling sessions with the grandchild, but

determined that the child did not need counseling. Gough advised

Russell of her determination, and Russell learned for the first

time that the grandchild did not have a 504 plan in place.

Gough did not follow Russell's instructions concerning the

submission of her request for payment. Rather than sending this

request to Russell, Gough sent it to a secretary in the special

services department. The secretary forwarded it to Russell and

told her that the request for payment could not be processed

because it was not accompanied by a medical note authorizing

"bedside" services for the grandchild. Russell then contacted

Gough and told her to send the request directly to her. Gough did

so.

2
Gough was also a social worker.

7 A-1637-17T2
 On October 2, 2014, defendant approved payment for Gough's

services even though the required documentation supporting it was

never provided. Based upon defendant's approval, the district

paid $141 for these unnecessary services for the grandchild.

Although Morgan had told Russell that defendant would approve

the payment for the services, Russell was surprised that she

actually did so. Russell stated that defendant was normally very

careful in her scrutiny of in-home counseling requests and, in

other cases where the required documentation was missing,

defendant had returned the requests to Russell without her

approval. Shortly after defendant approved the payment to Gough,

the scheme involving Uszenski's grandchild came to light.

After considering these facts, the grand jury charged

defendant in count four of the June 20, 2017 indictment with third-

degree official misconduct, in violation of N.J.S.A. 2C:30-2 and

N.J.S.A. 2C:2-6.3 Defendant again applied for PTI. Eligibility

3
The grand jury also charged Uszenski, Morgan, and Halsey with
a number of offenses. Specifically, the indictment charged
Uszenski with four counts of second-degree official misconduct,
N.J.S.A. 2C:30-2 and N.J.S.A. 2C:2-6 (counts one, five, nine, and
ten); two counts of third-degree theft by deception, N.J.S.A.
2C:20-4 (counts three and eight); and one count of second-degree
pattern of official misconduct, N.J.S.A. 2C:30-7 (count eleven).
The indictment charged Morgan with three counts of second-degree
official misconduct (counts one, two, and nine); two counts of
third-degree theft by deception (counts three and eight); two
counts of fourth-degree false swearing, N.J.S.A. 2C:28-2(a)

8 A-1637-17T2
for PTI is based primarily on "the applicant's amenability to

correction, responsiveness to rehabilitation and the nature of the

offense." N.J.S.A. 2C:43-12(b). "Admission [into the PTI program]

requires a positive recommendation from the PTI director and the

consent of the prosecutor." State v. Negran, 178 N.J. 73, 80

(2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)).

A determination whether to admit a defendant is "'primarily

individualistic in nature[,]' and a prosecutor must consider an

individual defendant's features that bear on his or her amenability

to rehabilitation." Nwobu, 139 N.J. at 255 (quoting State v.

Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility,

prosecutors and PTI program directors must consider the factors

set forth in N.J.S.A. 2C:43-12(e), Rule 3:28, and the accompanying

Guidelines to that Rule (Guidelines), which "elucidate the

'purposes, goals, and considerations relevant to PTI.'" Negran,

178 N.J. at 80 (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).4

(counts six and seven); and one count of pattern of official
misconduct (count twelve). Finally, the indictment charged Halsey
with one count of second-degree official misconduct (count one);
and one count of third-degree theft by deception (count three).
4
Effective July 1, 2018, the Supreme Court adopted new rules
governing the PTI application process, Rules 3:28-1 through 3:28-
10. Because these new Rules were obviously not in effect when
defendant's application was considered by the PTI director, the
prosecutor, and the trial court, we apply the standards in effect
at that time.

9 A-1637-17T2
 After reviewing defendant's application, and interviewing

her, the PTI director issued a written report, recommending that

defendant not be admitted into the program. The prosecutor agreed

with this recommendation. In the prosecutor's brief submitted to

the trial court, the prosecutor reviewed each and every one of the

seventeen factors set forth in N.J.S.A. 2C:43-12(e), Rule 3:28,

and the accompanying Guidelines.

Addressing the nature of the offense and the facts of the

case, N.J.S.A. 2C:43-12(e)(1) and (2), the prosecutor noted that

N.J.S.A. 2C:43-12(b)(2)(a) specifically provides that "[t]here

shall be a presumption against admission into [the PTI program]

for . . . a defendant who was a public officer or employee whose

offense involved or touched upon his [or her] public office or

employment[.]" A similar presumption against admission is set

forth in PTI Guideline 3(i) of Rule 3:28. That Guideline states

that although any defendant is potentially eligible for PTI, "[i]f

the crime was . . . a breach of the public trust where admission

to a PTI program would deprecate the seriousness of defendant's

crime, the defendant's application should generally be rejected."

Guidelines for Operation of Pretrial Intervention in New Jersey,

Pressler & Verniero, Current N.J. Court Rules, Guideline

3(i)(1)(c), following R. 3:28 at 1291 (2018). While these

presumptions are rebuttable, our Supreme Court has held "that

10 A-1637-17T2
overcoming [them] requires showing 'something extraordinary or

unusual' about the defendant's background." State v. Roseman, 221

N.J. 611, 622-23 (2015) (emphasis added) (quoting Nwobu, 139 N.J.

252-53).

The prosecutor also pointed out that defendant's offense did

not constitute a "victimless" crime under N.J.S.A. 2C:43-12(e)(4)

and (7). In this regard, N.J.S.A. 2C:43-12(a)(3) specifically

provides that PTI "[p]rovides a mechanism for permitting the least

burdensome form of prosecution possible for defendants charged

with "victimless" offenses, other than defendants who were public

officers or employees charged with offenses that involved or

touched their office or employment[.]" (Emphasis added).

In addition, the prosecutor found that the need for

prosecution of this crime of official misconduct outweighed the

value of possible supervisory treatment based upon defendant's

intentional action in approving the unsupported request for

payment. N.J.S.A. 2C:43-12(e)(14) and (17). Although defendant

was not charged as a co-conspirator with Uszenski, Morgan, and

Halsey in the events involving Uszenski's grandchild prior to

September 2014, the prosecutor stated that defendant was so

intertwined in the overall scheme that her participation in PTI

would affect the prosecution of the codefendants. N.J.S.A. 2C:43-

12(e)(15) and (16).

11 A-1637-17T2
 At the same time, the prosecutor considered all of the

applicable mitigating factors, including defendant's age,

educational background, employment history, and lack of a prior

criminal record. He also noted the letters of support defendant

received from friends and colleagues. N.J.S.A. 2C:43-12(e)(3),

(9), (12), and (13). However, the prosecutor concluded that these

nonidiosyncratic factors did not outweigh the serious nature of

the offense and the facts of this case.

Defendant filed a motion to compel her entry into PTI over

the prosecutor's objection. Following oral argument, the trial

judge rendered a written decision, reversed the prosecutor's

determination, and admitted defendant into PTI.5 Although the

judge found that the prosecutor had considered all of the relevant

factors, he determined that the prosecutor had incorrectly weighed

them in denying defendant's application.

In so ruling, the judge stated that defendant was only charged

in one count of the indictment and, therefore, played a lesser

role than her codefendants. The judge also found significant that

defendant had only caused $141 in public funds to be misused even

though, by definition, any amount less than $200 constitutes a

5
Pursuant to Rule 3:28(f), the order enrolling defendant into
the PTI program was automatically stayed when the State filed its
notice of appeal.

12 A-1637-17T2
third-degree offense under N.J.S.A. 2C:30-2. The judge noted that

defendant disputed that she had any responsibility to review

payment requests or supporting documentation concerning them and,

instead, simply approved payment for services that had already

been performed.

The judge further stated that the prosecutor should have

considered that if both defendant and Morgan were sentenced to

prison, their child would be left without support. However, the

judge did not acknowledge that their child was now an adult.

While noting there was a presumption against PTI admission

for an individual, like defendant, who is charged with official

misconduct, the judge found that this presumption was overcome by

such factors as defendant's age, educational background, and lack

of prior criminal record. The judge also credited defendant's

claim that she now suffered from depression and anxiety as the

result of her indictment, but failed to mention that these

conditions had no causal connection to her alleged commission of

the underlying offense.

In a conclusory final paragraph, the judge found that the

State's prosecution of the three codefendants would not be

adversely affected if defendant was admitted to PTI. The judge

based this finding on his observation that defendant was not

charged with conspiring with the codefendants to commit the

13 A-1637-17T2
offenses that preceded her involvement in the scheme in September

2014. This appeal followed.

On appeal, the State argues the judge substituted his judgment

for that of the prosecutor, and that the prosecutor's decision to

reject defendant's PTI application was based upon a thorough review

of all appropriate factors and did not constitute a gross and

patent abuse of discretion. We agree.

Established precedents guide our task on appeal. The decision

whether to accept or reject a defendant's PTI application is

essentially a prosecutorial function. State v. Leonardis, 73 N.J.

360, 381 (1977). Therefore, a "[d]efendant generally has a heavy

burden when seeking to overcome a prosecutorial denial of his [or

her] admission into PTI." State v. Watkins, 193 N.J. 507, 520

(2008). "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." Negran, 178 N.J.

at 82.

Indeed, "[b]ecause of the recognized role of the prosecutor,

we have granted enhanced deference to prosecutorial decisions to

admit or deny a defendant to PTI." State v. DeMarco, 107 N.J.

562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1

(1981)). Accordingly, there is an "expectation" by the Supreme

14 A-1637-17T2
Court that a prosecutor's decision to reject a PTI applicant "will

rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996)

(quoting Leonardis, 73 N.J. at 380).

"Issues concerning the propriety of the prosecutor's

consideration of a particular [PTI] factor are akin to 'questions

of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979).

"Consequently, on such matters an appellate court is free to

substitute its independent judgment for that of the trial court

or the prosecutor should it deem either to have been in error."

Id. at 105. While we exercise de novo review over the propriety

of considering a certain PTI factor, we afford prosecutors "broad

discretion to determine if a defendant should be diverted." State

v. K.S., 220 N.J. 190, 199 (2015). This discretion arises out of

the prosecutor's charging authority. Id. at 200.

It has been long-established that the scope of judicial review

of a prosecutor's decision to reject a defendant's application

into PTI is "severely limited" and "serves to check only the 'most

egregious examples of injustice and unfairness.'" Negran, 178

N.J. at 82 (quoting Leonardis, 73 N.J. at 384). "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."

15 A-1637-17T2
Nwobu, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super.

106, 111-12 (App. Div. 1993)).

"A trial court does not evaluate a PTI application 'as if it

[stands] in the shoes of the prosecutor.'" State v. Hoffman, 399

N.J. Super. 207, 216 (App. Div. 2008) (quoting Wallace, 146 N.J.

at 589). Moreover, a trial court "cannot substitute its own

judgment for that of the prosecutor even when 'the prosecutor's

decision is one which the trial court disagrees with or finds to

be harsh." Ibid. (quoting Kraft, 265 N.J. Super. at 112-13).

Therefore, the question presented to a trial court reviewing a

defendant's appeal from a prosecutor's denial of a PTI application

"is not whether [the court] agree[s] or disagree[s] with the

prosecutor's decision, but whether the prosecutor's decision could

not have been reasonably made upon weighing the relevant factors."

Nwobu, 139 N.J. at 254.

In order for a defendant to succeed in overturning the

prosecutor's denial of his or her admission into PTI, the defendant

must "clearly and convincingly establish that the prosecutor's

decision constitutes a patent and gross abuse of discretion."

Watkins, 193 N.J. at 520. An abuse of prosecutorial discretion

is established when a defendant demonstrates "that a prosecutorial

veto (a) was not premised upon a consideration of all relevant

factors, (b) was based upon a consideration of irrelevant or

16 A-1637-17T2
inappropriate factors, or (c) amounted to a clear error in

judgment[.]" Roseman, 221 N.J. at 625 (quoting State v. Bender,

80 N.J. 84, 93 (1979)). "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" PTI. Ibid.

Guided by these principles, we conclude that the trial judge

mistakenly ordered defendant's admission into PTI over the

prosecutor's objection. We are convinced from our review of the

record that the prosecutor considered, weighed, and properly

balanced all of the requisite factors, including those personal

to defendant as well as the facts and circumstances of the offense.

As noted above, the trial judge acknowledged that the

prosecutor addressed all the factors listed in N.J.S.A. 2C:43-

12(e). However, the State did much more than that. In its

submission in opposition to defendant's application, the

prosecutor identified the facts it considered, together with how

it weighed those facts in its analysis. There is no evidence in

the record that the prosecutor considered any improper or

irrelevant factors.

The trial judge mistakenly found that the State gave short

shrift to the personal facts of defendant's case, such as this

being her first indictable offense, her employment history, and

17 A-1637-17T2
her child care responsibilities. Again, the State not only

considered these factors, it explained how it weighed them.

On the other hand, the judge gave undue emphasis to a number

of the personal factors, especially defendant's lack of a criminal

record. With regard to defendant's clean prior record, we observe

that our Supreme Court has held that a defendant's "status as a

first-time offender" is not the type of "extraordinary or unusual"

circumstance needed to overcome a statutory presumption against

admission into PTI. Roseman, 221 N.J. at 623 (citing Nwobu, 139

N.J. at 241, 252-53).

The judge's overemphasis of defendant's personal factors

underscores the major error in the decision under review. The

decision was predicated on the judge's own assessment of the PTI

factors, rather than on a determination of whether the prosecutor

failed to consider all relevant factors, considered inappropriate

factors, or clearly erred in his judgment. By highlighting only

the mitigating factors, the judge ignored the nature of the

offense, the facts of the case, and the impact placing defendant

in PTI would have on the prosecution of her codefendants.

As noted in our discussion of the judge's decision, the judge

mistakenly determined that third-degree official misconduct was a

"minor offense." However, the Legislature has expressly

determined that there should be a presumption against admission

18 A-1637-17T2
into PTI for anyone charged with this offense. N.J.S.A. 2C:43-

12(b)(2)(a). Our Supreme Court has established a similar

presumption in PTI Guideline 3(i)(1)(c) of Rule 3:28.

The trial judge briefly mentioned this presumption but, once

again, highlighted facts which did not support a conclusion that

defendant was able to overcome the presumption. The judge

downplayed defendant's involvement in the overall official

misconduct scheme, finding that she only diverted $141 of public

money to provide unneeded services to Uszenski's grandchild. The

judge also noted that Uszenski, Morgan, and Halsey played a larger

part in the enterprise than she did.

However, the Legislature has determined that even if a public

employee steals or diverts only one dollar of taxpayer money, the

employee has committed a third-degree offense, punishable by up

to five years in prison, with a mandatory minimum sentence of two

years. N.J.S.A. 2C:30-2(b); N.J.S.A. 2C:43-6.5(a). Thus, the

fact that defendant was "only" charged with diverting $141 to help

the daughter of the man who gave her and Morgan high-ranking

positions with the district is of little moment. Moreover, the

Supreme Court has held that a defendant's assertion that he or she

"played a relatively minor role in the" overall crime is simply

not the type of "extraordinary or unusual" fact needed to overcome

19 A-1637-17T2
a statutory presumption against admission into PTI. Roseman, 221

N.J. at 623 (citing Nwobu, 139 N.J. at 252-53).

The trial judge cited, but did not fully analyze, the Court's

decision in Roseman, and stated it supported defendant's admission

into PTI. We disagree.

In Roseman, the defendant was the mayor of a town and, as a

result of this official position, both he and his wife received

health benefits provided by the town. 221 N.J. at 616. The

defendant and his wife then divorced, and the defendant told the

town clerk that he and his wife were no longer married. Ibid.

Nevertheless, the town failed to remove the former spouse from the

town's health plan. Ibid. When the defendant later discovered

this error, he promptly reported it and had his former spouse

taken off the plan. Id. at 617. His former spouse repaid the

benefits she had received under the plan. Ibid.

A subsequent audit revealed that other individuals who were

no longer entitled to health benefits were mistakenly still listed

as insureds under the plan. Ibid. The State charged the defendant

with a number of offenses, including second-degree official

misconduct, N.J.S.A. 2C:30-2. Ibid. The other individuals who

also mistakenly received benefits were not charged. Ibid.

Our Supreme Court determined that the circumstances of the

defendant in the Roseman case were "compelling and idiosyncratic"

20 A-1637-17T2
and, under these unusual circumstances, supported the defendant's

admission into PTI. Id. at 626. The Court found it significant

that "[t]he criminal violations were essentially self-reported,

and occurred through an administrative error after [the defendant]

correctly advised the clerk of his marital status change and noted

the change on his W-4 form." Ibid. The Court also found it

compelling that the defendant "took immediate action to ameliorate

the problem by removing [his former spouse] from [the town's plan]

and initiating an internal audit of all [of the town's] health

insurance policy holders." Ibid.

Unlike the defendant in Roseman, defendant did not

demonstrate any "compelling or idiosyncratic" circumstances

enabling her to overcome the strong presumption against admission

into PTI. Ibid. Defendant did not turn herself in, blow the

whistle on Uszenski, Morgan, and Halsey, or take any immediate

action to correct what had occurred. Instead, she accepted the

emoluments of the high-ranking position Uszenski arranged for her,

and then approved the payment for counseling services to which

Uszenski's grandchild was obviously not entitled. Under these

circumstances, the trial judge erred in concluding there were

"extraordinary and unusual" facts that overcame the presumption

against PTI under Roseman.

21 A-1637-17T2
 Finally, the trial judge mistakenly found that admitting

defendant into PTI would not adversely affect the State's

prosecution of her codefendants. As noted above, the judge based

this ruling on his observation that defendant was not charged with

conspiracy in the indictment. However, that is too facile of an

analysis to withstand scrutiny.

Where, as here, "[t]wo or more defendants . . . are alleged

to have participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or

offenses[,]" a joint indictment and a joint trial of codefendants

is appropriate. R. 3:7-7. Indeed, a joint trial is preferable

where "much of the same evidence is needed to prosecute each

defendant[.]" State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting

State v. Brown, 118 N.J. 595, 605 (1990)).

As the prosecutor pointed out in its opposition to defendant's

application, the State planned to prove at trial that although

defendant was only charged in one count of the indictment, her

role was interconnected with that played by her three codefendants

such that the overall scheme would not have succeeded or lasted

for as long as it did without her active participation. Whether

or not the State will be successful with its theory of the case

is a matter that must be determined either on a motion to dismiss

or by a jury trial. However, because "much of the same evidence

22 A-1637-17T2
is needed to prosecute" all four defendants, the fact that the

State decided to charge defendant with her codefendants in a single

indictment did not compel her admission into PTI. Sanchez, 143

N.J. at 281.

In sum, the prosecutor evaluated the relevant factors and

exercised permissible discretion in rendering his determination.

Under these circumstances, we discern no patent and gross abuse

of discretion by the prosecutor in denying defendant's admission

into PTI. While it is possible that reasonable minds could differ

in analyzing and balancing the applicable factors in this case,

judicial disagreement with a prosecutor's reasons for rejection,

as occurred here, does not equate to prosecutorial abuse of

discretion so as to merit a judicial override of the prosecutor's

decision. DeMarco, 107 N.J. at 566-67.

Reversed.

23 A-1637-17T2