STATE OF NEW JERSEY VS. ILENA Y. SILVA STATE OF NEW JERSEY VS. ROWJEAN v. RODRIGUEZ (17-11-2461, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-4588-18
A-4638-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ILENA Y. SILVA,

Defendant-Appellant.
_________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROWJEAN V. RODRIGUEZ,

Defendant-Appellant.
_________________________

Submitted March 15, 2021 – Decided April 20, 2021

Before Judges Sabatino and Gooden Brown.
 On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 17-11-
2461.

Joseph E. Krakora, Public Defender, attorney for
appellant Ilena Y. Silva (Stefan Van Jura, Assistant
Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for
appellant Rowjean V. Rodriguez (Molly O'Donnell
Meng, Assistant Deputy Public Defender, of counsel
and on the briefs).

Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent State of New Jersey (Debra R.
Albuquerque, Assistant Prosecutor, of counsel and on
the briefs).

PER CURIAM

On November 29, 2017, defendants Ilena Silva, Rowjean Rodriguez, and

two others were charged in an Atlantic County indictment with second-degree

conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2(a)(1) and 2C:12-

1(b)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)

(count two); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7)

(count three). The charges stemmed from an August 10, 2017 melee in a

grocery store during which defendants and other members of their family

assaulted a woman.

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 On January 3, 2019, after their respective Pre-trial Intervention Program

(PTI) applications had been rejected, 1 defendants entered negotiated guilty

pleas to count three in exchange for the State's dismissal of the remaining

charges and agreement to reconsider defendants' PTI applications. If the State

maintained its rejection and defendants' respective motions to compel

admission were denied by the trial court, then the State would recommend

non-custodial probationary dispositions. Following reconsideration, the

prosecutor rejected defendant Silva's and Rodriguez's PTI applications in

letters dated February 24 and 27, 2019, and the court denied their motions to

compel admission on March 19 and May 23, 2019, respectively. Thereafter,

both defendants received one-year suspended sentences, which were

1
"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.'" State v. Roseman, 221 N.J. 611, 621
(2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). "[A]cceptance
into PTI is dependent upon an initial recommendation by the Criminal
Division Manager and consent of the prosecutor." Ibid. In the past, "[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)." Ibid. However, effective July 1, 2018, "Rule
3:28, the PTI Guidelines, and the Official Comments . . . were repealed and
replaced." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4
(2018). "The new rules, R. 3:28-1 to -10, 'are designed to realign the PTI
program to its original purpose to divert from prosecution first time offenders
who would benefit from its rehabilitative components.'" Ibid. (quoting Notice
to the Bar: Proposed New Court Rules 3:28-1 through 3:28-10 (Pretrial
Intervention), 6 (Aug. 16, 2017)).

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memorialized in judgments of conviction entered on May 28, 2019, from

which each now appeals.

The appeals were calendared back-to-back and, because they share

common facts and legal issues, we now consolidate them for the purpose of

issuing a single opinion. In her appeal, defendant Silva raises the following

single point for our consideration:

DEFENDANT SHOULD BE ADMITTED INTO PTI
OVER THE STATE'S OBJECTION BECAUSE THE
DENIAL OF PTI WAS A PATENT AND GROSS
ABUSE OF DISCRETION.

In her appeal, defendant Rodriguez raises the following single point for our

consideration:

BECAUSE THE STATE HEAVILY RELIED UPON
A PRESUMPTION AGAINST ADMISSION THAT
NO LONGER EXISTS, A REMAND FOR
RECONSIDERATION OF [DEFENDANT'S] PTI
APPLICATION IS REQUIRED.

For the reasons that follow, we affirm.

I.

We glean these facts from the PTI record. On August 10, 2017,

Hammonton police officers responded to a grocery store on a report of a fight.

The victim reported to the officers that she was physically assaulted by four

individuals, defendants Ilena Silva and Rowjean Rodriguez and codefendants

4 A-4588-18
Gloria Silva and Belita Rodriguez, their respective mothers. The victim stated

she did not know the suspects but had been the target of Gloria's racial

comments in the past. Although the victim had scratches and bruises to her

body, arms, hands, face, and head, she refused medical treatment.

One of the responding officers watched the surveillance footage from the

grocery store which showed the victim and Gloria exchange words at an

intersection adjacent to the store. After the exchange, the victim entered the

store and called 911 before crouching in an aisle to hide. Defendants arrived

in a minivan shortly after the verbal exchange and entered the store with

Gloria. The three suspects cornered the victim in the aisle and, after an

additional exchange, began striking the victim in her body, face, and head area

with closed fists. While returning defensive blows, the victim attempted to

flee the store but her path was blocked by Rowjean, thereby allowing the

attack to continue. Ilena also bludgeoned the victim with an unknown object

she had grabbed from the floor. Moments later, codefendant Belita Rodriguez

entered the store and joined the attack on the victim. Before the responding

officers arrived at the scene, defendants exited the store but were later

detained.

5 A-4588-18
 Upon reconsideration of defendants' respective PTI applications as well

as their "compelling circumstances letter[s]," and after "reviewing all

appropriate presumptions, . . . factors both for and against [d]efendant[s']

admission into PTI, and the public policy of the State of New Jersey," the

prosecutor maintained his rejection. The prosecutor's February 24 and 27,

2019 rejection letters relied initially on the "presumption against admission . . .

for a defendant charged with violence" contained in N.J.S.A. 2C:43-

12(b)(2)(b).

The prosecutor also relied on factors 1, 2, 3, 4, 5, 6, 7, 10, 11, 14, and 17

of the statute to support his decision against admission. See N.J.S.A. 2C:43-

12(e)(1) ("[t]he nature of the offense"); N.J.S.A. 2C:43-12(e)(2) ("[t]he facts

of the case"); N.J.S.A. 2C:43-12(e)(3) ("[t]he motivation and age of the

defendant"); N.J.S.A. 2C:43-12(e)(4) ("the desire of the . . . victim to forego

prosecution"); N.J.S.A. 2C:43-12(e)(5) ("[t]he 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 . . .

controlled by proper treatment"); N.J.S.A. 2C:43-12(e)(6) ("[t]he likelihood

that the applicant’s crime is related to a condition or situation that would be

6 A-4588-18
conducive to change through his [or her] participation in supervisory

treatment"); N.J.S.A. 2C:43-12(e)(7) ("[t]he needs and interests of the victim

and society"); N.J.S.A. 2C:43-12(e)(10) ("[w]hether or not the crime is of an

assaultive or violent nature, whether in the criminal act itself or in the possible

injurious consequences of such behavior"); N.J.S.A. 2C:43-12(e)(11)

("[c]onsideration of whether or not prosecution would exacerbate the social

problem that led to the applicant’s criminal act"); N.J.S.A. 2C:43-12(e)(14)

("[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"); and

N.J.S.A. 2C:43-12(e)(17) ("[w]hether or not the harm done to society by

abandoning criminal prosecution would outweigh the benefits to society from

channeling an offender into a supervisory treatment program").

Regarding factors 1, 2, 3, and 10, the prosecutor described the conduct

as "a group melee against a single individual" who was "targeted[,] . . . trapped

and mercilessly attacked." Although the victim did not actually "suffer

significant bodily injury," the criminal act "was assaultive in nature," and

defendants "acknowledged that the purpose of the assault was to cause

7 A-4588-18
significant bodily injury." 2 According to the prosecutor, "all [d]efendants

entered the grocery store; all [d]efendants confronted the victim; and all

[d]efendants . . . helped in their own way to culminate the crime." The

prosecutor explained that defendant Rodriguez's attempt to mitigate her

conduct by contending "that she only blocked the victim's escape path," and

defendant Silva's contention "that the physical contact only resulted in minor

injuries," did not relieve either defendant of responsibility because "no matter

how large or small a role each [d]efendant played in the culmination of this

cowardly act, all [d]efendants [were] legally culpable." The prosecutor

acknowledged that defendant Silva's "young age" of "[twenty-two] years old,

slightly weigh[ed] in favor of . . . admission." However, the prosecutor

balanced that factor against "[d]efendant's motivation in the commission of the

crime." Attributing both defendants' motivation "to the desire to injure another

human being," the prosecutor found the motivation "to be reprehensible, rather

than . . . innocuous."

As to factors 5 and 6, according to the prosecutor, neither defendant

"pointed to [any] . . . mental or physical health factor or other consideration

which would absolve [them] of the current charges" or "could not [be]

2
This acknowledgment was encompassed in defendants' entry of guilty pleas
to third-degree aggravated assault.

8 A-4588-18
address[ed] through the criminal justice process." Specifically, both

defendants "denie[d] any substance abuse . . . or mental health" issue that

contributed to the crime and would be conducive to change through

participation in supervisory treatment. As to factors 4, 7, 11, 14, and 17, the

prosecutor noted that the victim did not want "to forego prosecution" and

opposed defendants' entry into PTI. Further, "the nature and circumstances of

th[e] crime indicate[d] that punishment, and deterrence [were] appropriate in

this situation" for the needs and interests of the victim as well as "society as a

whole." In support, the prosecutor pointed out that defendants' conduct "was a

purposeful crime intended to cause injury," rather than "borne out of necessity

or a victimless lapse in judgment," and because neither defendant identified

"any social factor contributing to the . . . offense," "prosecution would not

exacerbate anything."

Additionally, according to the prosecutor, "abandoning criminal

prosecution . . . would present a greater harm to society than permitting

[d]efendant[s'] application to PTI." In that regard, the prosecutor noted that

this was not a case in which either defendant held "a special license" or was

"currently working." On the contrary, defendant Rodriguez "ha[d] not attained

a GED," "express[ed no] desire to continue any education," and was "not

9 A-4588-18
currently employed." Although defendant Silva "hope[d] to obtain a GED in

the near future," and had a "[laudable] past work history," her future

employment prospects would not be "at particular risk of jeopardy upon this

conviction."

On the other hand, in mitigation, the prosecutor acknowledged that

factors 8, 9, 12, 13, 15, and 16 weighed in favor of admission. See N.J.S.A.

2C:43-12(e)(8) ("[t]he 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)(9) ("[t]he

applicant’s record of criminal and penal violations and the extent to which he

[or she] may present a substantial danger to others"); N.J.S.A. 2C:43-12(e)(12)

("[t]he history of the use of physical violence toward others"); N.J.S.A. 2C:43-

12(e)(13) ("[a]ny involvement of the applicant with organized crime");

N.J.S.A. 2C:43-12(e)(15) ("[w]hether 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 [her] case through traditional

criminal justice system procedures"); and N.J.S.A. 2C:43-12(e)(16)

("[w]hether or not the applicant’s participation in pretrial intervention will

adversely affect the prosecution of codefendants"). Specifically, although

defendant Rodriguez "had adverse interaction[s] with law enforcement on two

10 A-4588-18
prior occasions," the prosecutor conceded that both defendants had no prior

"criminal conviction[s]" and "no connection with organized crime." Further,

all four defendants "pled guilty at the same time."

Nonetheless, "[i]n balancing the factors," the prosecutor maintained that

admission into PTI was "antithetical to the purpose and policy of PTI." The

prosecutor explained:

It is public policy to deter prosecution when
deterrence will provide "early rehabilitative services
[which are] expected to deter future criminal behavior
[and] there is an apparent causal connection between
the offenses charged and the rehabilitative need. . . ."
N.J.S.A. 2C:43-12(a)(1). Further, public policy also
indicates the need to "provide an alternative to
prosecution to applicants who might be harmed by the
imposition of criminal sanctions" and to provide a
mechanism to deal with "victimless" crimes. See
[ibid.] This case does not fall within any public policy
espoused by the PTI statute. . . . There is no
rehabilitative treatment expected to assuage the cause
of this crime. Further, there is no harm to
[d]efendant[s], educationally or vocationally[,] . . .
and there is an identifiable victim in this matter.

Moreover, according to the prosecutor, "PTI has a specific and

enumerated purpose" to "divert penitent individuals who commit victimless

crimes out of desperation or necessity in an attempt to stop the impetus for the

commission of crimes." However, the prosecutor pointed out that this policy

was "in juxtaposition" to defendants' attempts to deflect "blame for [their]

11 A-4588-18
actions." In that regard, the prosecutor noted that even after entering retraxit

guilty pleas, during the pre-sentence investigation (PSI), defendants told the

PSI writer "[they had] done nothing wrong," thereby failing to take "[full]

responsibilit[y] for [their] actions" and "fail[ing] to show any remorse."

Following oral argument on defendants' respective motions to compel

admission over the prosecutor's objection, Judge Bernard E. DeLury, Jr.

determined that defendants "failed to overcome the burden by clear and

convincing evidence to show that the [prosecutor's] exercise of discretion . . .

constitute[d] a patent and gross abuse of discretion or a clear error of

judgment." The judge found that the prosecutor "considered all appropriate

facts and circumstances" and did not consider any "inappropriate factors." The

judge's decision was informed by his review of the parties' oral and written

submissions as well as the surveillance video of the incident. The judge

explained, "[a]t its essence, this is a crime of violence . . . and the prosecutor's

theory of the case makes [defendants] culpable either by their own hand or by

aiding and abetting. . . ." Accordingly, the judge denied defendants' respective

motions to compel admission and this appeal followed.

II.

12 A-4588-18
 Deciding whether to permit a defendant to divert to PTI "is a

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582

(1996), for which a prosecutor is "granted broad discretion." State v. K.S., 220

N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list

of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to

"make an individualized assessment of the defendant considering his or her

amenability to correction and potential responsiveness to rehabilitation."

Roseman, 221 N.J. at 621-22 (internal quotation marks omitted) (quoting State

v. Watkins, 193 N.J. 507, 520 (2008)). Under Rule 3:28-4, in addition to

considering the seventeen individual factors listed in N.J.S.A. 2C:43-12(e),

"[t]he nature of the offense should be considered in reviewing the application"

and "[i]f the crime was . . . deliberately committed with violence or threat of

violence against another person[,] . . . the defendant's application should

generally be rejected." R. 3:28-4(b)(1).

That said, the scope of our review of a PTI rejection is severely limited

and designed to address "only the 'most egregious examples of injustice and

unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v.

Leonardis, 73 N.J. 360, 384 (1977)). Thus, "[i]n order to overturn a

prosecutor's rejection, a defendant must 'clearly and convincingly establish that

13 A-4588-18
the prosecutor's decision constitutes a patent and gross abuse of discretion[,]'"

meaning that the decision "has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial

intervention." Watkins, 193 N.J. at 520 (first quoting State v. Watkins, 390

N.J. Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J.

at 582-83).

In that regard, an abuse of discretion occurs where it can be proven "that

the [PTI] denial '(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. . . .'" State v. Lee, 437

N.J. Super. 555, 563 (App. Div. 2014) (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]." Roseman, 221 N.J. at 625

(quoting Bender, 80 N.J. at 93). "The extreme deference which a prosecutor's

decision is entitled to in this context translates into a heavy burden which must

be borne by a defendant when seeking to overcome a prosecutorial veto of his

[or her] admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App.

Div. 1993).

14 A-4588-18
 Applying these principles here, we find no basis to disturb the judge's

decision sustaining the prosecutor's veto, a decision we review de novo. See

State v. Denman, 449 N.J. Super. 369, 375-76 (App. Div. 2017). Defendant

Rodriguez argues that "a remand . . . for reconsideration of her PTI

application" is required because the prosecutor "mistakenly believed, and

heavily relied upon the belief, that there was a presumption against admission

for violent offenses." However, according to defendant Rodriguez, "the

presumption against admission only applies to domestic violence."

N.J.S.A. 2C:43-12(b)(2)(b), upon which the prosecutor relied, provides

in pertinent part that "[t]here shall be a presumption against admission into a

program of supervisory treatment for . . . a defendant charged with any crime

or offense involving domestic violence . . . if the crime or offense charged

involved violence or the threat of violence." While we agree with defendant

that the presumption contained in N.J.S.A. 2C:43-12(b)(2)(b) does not apply to

a violent crime not "involving domestic violence," Rule 3:28-4(b)(1) clearly

provides that PTI "should generally be rejected" if "the crime was . . .

deliberately committed with violence or threat of violence against another

person," as occurred here. Thus, Rule 3:28-4(b)(1) effectively creates a new

15 A-4588-18
presumption against admission for all offenses involving violence or threat of

violence.

Defendant Silva argues that she is "an ideal candidate for PTI" and

disagrees with the prosecutor's "assessment" of the factors relied upon to

support rejection. In particular, defendant Silva challenges the severity of the

victim's injuries and the prosecutor's characterization of the offense, which

Silva "characterize[s] as a petty scuffle." However, "that goes to the weight of

the evidence, which standing alone 'is not dispositive in a court's review of the

evaluation of [PTI] candidates.'" Nwobu, 139 N.J. at 256 (alteration in

original) (quoting State v. Smith, 92 N.J. 143, 147 (1983)).

As to defendant Silva's disagreement with the prosecutor's assessment of

the remaining factors, "[t]he question is not whether we agree or disagree with

the prosecutor's decision, but whether the prosecutor's decision could not have

been reasonably made upon weighing the relevant factors." Id. at 254. "A

reviewing court 'does not have the authority in PTI matters to substitute [its

own] discretion for that of the prosecutor.'" Id. at 253 (alteration in original)

(quoting Kraft, 265 N.J. Super. at 112). We conclude defendants failed to

clearly and convincingly establish that the prosecutor's decision went so wide

16 A-4588-18
of the mark sought to be accomplished by PTI that fundamental fairness and

justice require our intervention.

Affirmed.

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