STATE OF NEW JERSEY VS. MARC D. SCHULTZ (17-08-1151, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4812-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC D. SCHULTZ,

Defendant-Appellant.
___________________________

Argued April 9, 2019 – Decided September 11, 2019

Before Judges Rothstadt and Gilson.

On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment No. 17-08-
1151.

Kathleen Mary Theurer argued the cause for appellant.

William P. Miller, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Dennis Calo, Acting Bergen County
Prosecutor, attorney; William P. Miller, of counsel;
Catherine A. Foddai, Legal Assistant, on the brief).

PER CURIAM
 Defendant Marc D. Schultz appeals from the Law Division's judgment of

conviction (JOC) that it entered after defendant pled guilty to one count of

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1). At

sentencing, the trial court found that the mitigating factors outweighed any

aggravating factors and sentenced defendant to two years' probation as

permitted by an earlier order entered under N.J.S.A. 2C:43-6.2, which waived

the mandatory minimum period to which defendant was exposed under the

Graves Act, N.J.S.A. 2C:43-6(c). On appeal, defendant challenges a

December 6, 2017 order rejecting his appeal from the prosecutor's denial of his

admission to the Pretrial Intervention Program (PTI). See N.J.S.A. 2C:43-12;

R. 3:28.1 In his appeal, defendant argues the prosecutor's rejection of his

application "was a patent and gross abuse of discretion due to its reliance upon

irrelevant and inappropriate factors, inaccurate information and [a]

misapplication of [the] law." We disagree and affirm.

Defendant, a resident of Indiana, pled guilty to the one charge of

possession of a weapon after his arrest by Mahwah police on February 22,

1
Rule 3:28 contained guidelines to assist in a determination of whether a
defendant was amenable to PTI. The Rule was repealed effective July 1, 2018.
However, "many of [the Guidelines'] prescriptions -- with significant
variations -- are [now] contained in Rules 3:28-1 to -10." State v. Johnson,
238 N.J. 119, 128 (2019).

A-4812-17T1
2
2017, when an officer stopped defendant and his two passengers for a traffic

violation. In response to questioning by the officer, defendant disclosed that

he had a handgun in his possession. At the time, defendant also advised the

officer that he held a concealed carry permit from Indiana. The police

retrieved defendant's loaded gun and hollow-point bullets from his vehicle's

glovebox. Defendant also disclosed that there was marijuana in the car and

police recovered a small amount of the controlled substance together with

paraphernalia related to its use.

Defendant was arrested and later charged in an indictment with the

second-degree weapons offense and fourth-degree possession of prohibited

ammunition, N.J.S.A. 2C:39-3(f)(1) and (2). He was also charged in a

summons complaint with two disorderly persons offenses related to his

possession of marijuana and paraphernalia under N.J.S.A. 2C:35-10(a)(4) and

N.J.S.A. 2C:36-2.

After his arrest, defendant applied for entry into PTI. On October 18,

2017, the PTI director rejected defendant's application, citing to the fact that

defendant was an out-of-state resident and that a required home inspection

could not be conducted due to his not residing in New Jersey. The director

concluded that in defendant's case the "early rehabilitative services and the

A-4812-17T1
3
supervision offered by the PTI program would not best serve the interest of the

victim and/or the State of New Jersey."

Defendant immediately filed a motion with the Law Division to reverse

the director's determination. He did so prior to any input from the County

Prosecutor.

On November 6, 2017, the Bergen County Prosecutor also rejected

defendant's application. In his letter stating his reasons, the prosecutor cited to

what he found were the applicable statutory factors set forth in N.J.S.A.

2C:43-12(e) and the Guidelines under Rule 3:28.

The prosecutor cited to "the nature of the offense" and "the facts of the

case," N.J.S.A. 2C:43-12(e)(1) and (2), and concluded that PTI was not

appropriate because defendant was charged with a second-degree offense and

possession of marijuana. Citing to 18 U.S.C. § 926A, 2 he also noted that the

manner in which defendant transported his handgun violated federal law. The

prosecutor also considered under Guideline 3(b) that defendant was an out-of-

state resident and, under N.J.S.A. 2C:43-12(e)(9), that at the time of his arrest,

2
The federal statute permits a person to transport a firearm in the trunk of a
vehicle only "for any lawful purpose from any place where he may lawfully
possess and carry such firearm to any other place where he may lawfully
possess and carry such firearm if, during such transportation the firear m is
unloaded." § 926A.

A-4812-17T1
4
defendant had a prior criminal record consisting of out-of-state convictions for

selling cocaine in 1989 3 and in 2003 for possession of marijuana. Finally, the

prosecutor considered N.J.S.A. 2C:43-12(e)(14), whether the value of

supervisory treatment outweighed "the public need for prosecution," and (17),

"[w]hether . . . the harm done to society by abandoning criminal prosecution

would outweigh the benefits to society from channeling [defendant] into a

supervisory program," and concluded "society would be harmed" if defendant

was not prosecuted.

On December 4, 2017, Judge Margaret M. Foti considered the parties'

oral arguments. On December 6, 2017, she issued an order denying

defendant's appeal from the denial of his admission to PTI. The judge set forth

her reasons on the same date in a seven-page written decision. The judge

found that defendant did "not demonstrate[] that the prosecutor failed to

consider all relevant factors before making [his] decision." She concluded that

defendant's contentions about his background, including that "he is a 52-year-

old family man and business owner who [is] willing to report in person as

3
At the December 4, 2017 oral argument on defendant's appeal from the
rejection of his application, the prosecutor conceded that the letter inaccurately
stated the prior conviction and clarified that it was for a "misdemeanor" an d
not a "felony."

A-4812-17T1
5
required by PTI supervision [were] not enough to convince [the judge] that

[the prosecutor's] decision was based on a patent and gross abuse of

discretion."

In response to the prosecutor's subsequent motion, on January 16, 2018,

Judge Foti entered the order waiving the mandatory minimum defendant would

be exposed to for his weapons offense under the Graves Act, allowing him to

be sentenced to a period of probation. Defendant pled guilty the same day to

the one charge and, on June 1, 2018, another judge sentenced defendant and

stayed imposition of probation pending appeal. This appeal followed.

On appeal, in support of his contention that the prosecutor's rejection of

his application was a patent and gross abuse of discretion, defendant contends

that the challenged decision failed to consider a 2014 memorandum from the

Attorney General setting forth a "clarification" to an earlier Attorney General

Directive. The memorandum addressed the prosecution of matters involving

an out-of-state resident's transport of a weapon while in New Jersey and

applied to situations where a Graves Act offense is committed in New Jersey

based on conduct that would be lawful in the offender's home-state and the

"out-of-state visitor[ did] not realize that [his or her] authority to carry a

weapon in their home state [did] not extend into New Jersey." In the

A-4812-17T1
6
memorandum, the Attorney General directed that "in the absence of case-

specific aggravating circumstances, these defendants should not be sentenced

to incarceration," and instead prosecutors should pursue PTI, or if "PTI is not

appropriate," they should make "an initial plea offer" of "non-custodial"

probation.

The memorandum also directed that when a prosecutor pursues PTI for a

non-resident who is licensed to carry a weapon in his or her home state, certain

unique factors should be considered along with the statutory factors applicable

to PTI admission. Those unique factors include whether the manner of

possession minimize the risk of harm to others, such as keeping the weapon in

the trunk of the car as compared to "the passenger cabin of a vehicle." Other

factors include: (1) whether the incident "was [i]solated and [a]berrational,"

and "[d]efendant is otherwise a law-abiding person," as demonstrated by

whether defendant was found to be committing a separate offense; (2) whether

defendant disclosed the firearm to police "on his or her own initiative;" and,

(3) whether there existed "[c]ircumstances [c]oncerning [c]onfusion of New

Jersey and Other-State [l]aw."

According to defendant, the prosecutor's rejection of his application

because he was a non-resident was inconsistent with the memorandum, even

A-4812-17T1
7
though as he concedes, "traditionally out of State residents are regularly denied

admission to the [PTI] program." Moreover, defendant argues the prosecutor's

reliance on federal law was misplaced and his reliance upon the second-degree

nature of the weapons offense was inconsistent with the memorandum that

contemplated the diversion of defendants charged with the same offense to

PTI. Finally, defendant contends that contrary to the prosecutor's assertion, he

was not convicted of distribution of cocaine in 1989. We find no merit to

defendant's contentions.

"PTI is a 'diversionary program through which certain offenders are able

to avoid criminal prosecution by receiving early rehabilitative services

expected to deter future criminal behavior.'" Johnson, 238 N.J at 127 (quoting

State v. Roseman, 221 N.J. 611, 621 (2015)). "PTI programs are 'governed

simultaneously by the Rule and the statute which "generally mirror[ ]" each

other.'" Roseman, 221 N.J. at 621 (quoting State v. Wallace, 146 N.J. 576, 582

(1996)).

At the time of defendant's application for PTI, "[t]he assessment of a

defendant's suitability for PTI [was] conducted under the Guidelines for PTI

provided in Rule 3:28, along with consideration of factors listed in N.J.S.A.

2C:43-12(e)." Johnson, 238 N.J at 128 (quoting Roseman, 221 N.J. at 621).

A-4812-17T1
8
Under the Rule and statute, "acceptance into PTI [was] dependent upon an

initial recommendation by the Criminal Division Manager and consent of the

prosecutor." Roseman, 221 N.J. at 621.

A court's review of a prosecutor's rejection of a PTI application is

"'severely limited[,]' and interference by reviewing courts is reserved for those

cases where needed 'to check [] the "most egregious examples of injustice and

unfairness."'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014)

(alterations in original) (quoting State v. Negran, 178 N.J. 73, 82 (2003)).

"[O]n appeal, [we] review[] PTI decisions with 'enhanced deference.'" Ibid.

We afford prosecutors a "great deal of deference" in deciding whether to admit

defendants to PTI, because the decision for admission to "PTI is essentially an

extension of the charging decision, therefore the decision to grant or deny PTI

is a 'quintessentially prosecutorial function.'" Johnson, 238 N.J at 128

(quoting Roseman, 221 N.J. at 624).

"A court reviewing a prosecutor's decision to deny PTI may overturn

that decision only if the defendant 'clearly and convincingly' establishes the

decision was a 'patent and gross abuse of discretion.'" Johnson, 238 N.J. at

128-29 (quoting Wallace, 146 N.J. at 583). "Where a defendant can make that

showing, a trial court may admit a defendant, by order, into PTI over the

A-4812-17T1
9
prosecutor's objection." Roseman, 221 N.J. at 625. "In cases concerning legal

error by the prosecutor, . . . [which] raise issues akin to questions of law, . . . a

remand to the prosecutor may be appropriate so she or he may rightly

reconsider the application." Johnson, 238 N.J. at 129 (citation omitted).

In reaching their decisions, prosecutors are tasked with making

individualized assessments of each defendant, particularly his or her

"amenability to correction" and likely "responsiveness to rehabilitation." Id. at

127-28 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). Prosecutors are

granted "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.

A prosecutor must evaluate PTI applications by considering the factors

defined by statute and court rule and conduct an "individualized assessment"

of the applicant. The Supreme Court explained the evaluation process as

follows:

The assessment of a defendant's suitability for PTI
must be conducted under the Guidelines for PTI
provided in Rule 3:28, along with consideration of
factors listed in N.J.S.A. 2C:43-12(e). These factors
include "the details of the case, defendant's motives,
age, past criminal record, standing in the community,
and employment performance[.]" Watkins, 193 N.J. at
520; see N.J.S.A. 2C:43-12(e). Additionally, a PTI
determination requires that the prosecutor make an
individualized assessment of the defendant

A-4812-17T1
10
 considering his or her "'amenability to correction' and
potential 'responsiveness to rehabilitation.'" Watkins,
193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).

[Roseman, 221 N.J. at 621-22.]

However, in cases involving first- or second-degree offenses, there is a

presumption against admission. See R. 3:28 Guideline 3(i)(3); see also

Johnson, 238 N.J. at 131 ("hold[ing] the presumption against PTI for first- and

second-degree offenders . . . no longer" applicable to certain drug offenses);

Watkins, 193 N.J. at 523. The presumption may be overcome only upon a

defendant demonstrating "compelling reasons justifying the applicant's

admission and establishing that a decision against enrollment would be

arbitrary and unreasonable." R. 3:28 Guideline 3(i)(4); see also Johnson, 238

N.J. at 128.

A patent and gross abuse of discretion occurs when

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 judgement
[sic]. 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].

[Johnson, 238 N.J. at 129 (quoting Roseman, 221 N.J.
at 625).]

A-4812-17T1
11
 Applying these principles, we conclude defendant failed to demonstrate

that his rejection from PTI was the result of a patent or gross abuse of

discretion. Thus, there is no basis to disturb the trial court's decision

sustaining the prosecutor's denial. Although defendant certainly has a number

of mitigating factors in his favor, the reasons for the prosecutor's denial were

premised on consideration of relevant factors, which weighed against his

admission. Defendant failed to clearly and convincingly establish that the

prosecutor's decision went so wide of the mark sought to be accomplished by

PTI that fundamental fairness and justice required judicial intervention.

We find defendant's arguments to the contrary are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to

say, "a court's scrutiny of a prosecutor's denial of consent is normally limited

to the reasons given by the prosecutor for his [or her] action[,]" State v. Kraft,

265 N.J. Super. 106, 112 (App. Div. 1993), and "[a]bsent evidence to the

contrary, it is [to be] presumed that the prosecutor considered all relevant

factors before rendering a decision." Ibid. (alteration in original) (quoting

State v. Dalglish, 86 N.J. 503, 509 (1981)). We offer only the following

additional comments.

A-4812-17T1
12
 Here, the prosecutor appropriately referred to the undisputed facts that

were relevant to the applicable PTI factors, and his statement of reasons

clearly evidences a substantive analysis of valid considerations. Those

considerations included defendant being simultaneously found in possession of

marijuana, his gun being loaded with hollow-point bullets and not stored in the

vehicle's trunk, 4 his not having demonstrated any confusion over not being

allowed to carry his gun in New Jersey, and his prior criminal record, even

limited to the 2003 misdemeanor conviction. These factors clearly

distinguished defendant from the type of defendant contemplated by the

Attorney General Guidelines.

While reasonable minds might differ as to whether defendant is a

suitable candidate for admission into the program, the court's role when

considering an appeal of this sort is "limited" and the "'[court] does not have

the authority . . . to substitute [its own] discretion for that of the

prosecutor'. . . . even where the prosecutor's decision is one which the . . .

4
Defendant "had no federally-protected right under 18 U.S.C.[] § 926A to
transport his loaded revolver[,]" In re Two Seized Firearms, 127 N.J. 84,
91(1992). Nor did he have a right under 18 U.S.C. § 926A to carry a handgun
between Indiana and New Jersey, because he could not lawfully carry the gun
in New Jersey. See State v. Waters, 439 N.J. Super. 215, 231 (App. Div.
2015).

A-4812-17T1
13
court disagrees with or finds to be harsh." Kraft, 265 N.J. Super. at 112.

(alterations in original) (citation omitted).

Affirmed.

A-4812-17T1
14