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NOT FOR PUBLICATION WITHOUT THE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-2812-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RIANNA L. DRINKS,
Defendant-Appellant.
__________________________________
Submitted May 31, 2017 – Decided August 18, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-05-0679.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Y. Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Roseanne Sessa,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Rianna L. Drinks pled guilty to fourth-degree child
abuse or neglect. She appeals her February 12, 2016 judgment of
conviction, arguing the trial court erred when it upheld the
prosecutor's rejection of her application for pre-trial
intervention (PTI). We affirm.
I.
The prosecutor's rejection letter and the February 3, 2015
police report alleged the following facts.
On February 3, 2015, defendant left her two young children,
ages two and six, alone in her Jersey City apartment. At 10:00
a.m., a neighbor saw the two-year-old naked in the hallway of the
apartment building. At approximately 3:00 p.m., police officers
responded to a call about unattended children in the apartment,
and heard children crying. When the officers knocked on the door,
a child told them through the door that their mother was asleep
and the child would not open the door. The officers obtained a
key from building management and entered the apartment to ascertain
the children's welfare. The officers found two children hiding
in the back bedroom, naked and unattended. The older child told
police she did not know where her mother was and had been
instructed not to open the door for anyone. The neighbor stated
that the children were frequently left home alone.
Police attempted to call defendant's phone but could not
reach her. Defendant returned to the apartment around 4:00 p.m.
and provided different versions of where she was and changed her
2 A-2812-15T1
story several times. Defendant later told the PTI interviewer
that she went to a check-cashing place and a store to buy food.
Defendant was charged with two counts of second-degree child
endangerment, N.J.S.A. 2C:24-4(a), and two counts of fourth-degree
child abandonment, N.J.S.A. 9:6-1, -3. Defendant applied for
admission to PTI, but the prosecutor denied the application.
Defendant filed a motion challenging the prosecutor's denial. The
trial court rejected defendant's challenge in an October 19, 2015
oral decision.
Thereafter, defendant entered a guilty plea to fourth-degree
child abandonment. She admitted she left the older child alone
in the apartment "for a period of time," putting her in danger.
The court sentenced defendant to two years of probation.
Defendant appeals the denial of her PTI motion. See R.
3:28(g). She argues:
THE PROSECUTOR'S DECISION TO REJECT MS.
DRINK'S APPLICATION FOR PTI CONSTITUTED A
PATENT AND GROSS ABUSE OF DISCRETION THAT
SUBVERTS THE GOALS OF PTI, REQUIRING HER
ADMISSION INTO PTI. AT MINIMUM, IT
CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING
A REMAND FOR RECONSIDERATION.
A. In This Matter, the Prosecutor
Considered Inappropriate Factors,
Failed to Consider Relevant
Factors, and Based His Conclusion on
a Clear Error of Judgment, Resulting
in an Abuse of Prosecutorial
Discretion.
3 A-2812-15T1
1. Nature of the Offense and Facts
of the Case.
2. Motivation and Age of the
Defendant.
3. Public Needs Factors.
B. Rejection of the Application
Subverted the Goals of PTI.
II.
The PTI program is governed by N.J.S.A. 2C:43-12 to -22, Rule
3:28, and the Guidelines for Operation of Pretrial Intervention
in New Jersey, reprinted after Rule 3:28 in Pressler & Verniero,
Current N.J. Court Rules (2017) (hereinafter Guidelines).
"N.J.S.A. 2C:43-12(e) lists seventeen non-exclusive factors to be
considered by the criminal division manager and prosecutor in
determining admission into [PTI]." State v. K.S., 220 N.J. 190,
197 (2015). 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, supra, 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
4 A-2812-15T1
second, because it is a primary purpose of PTI to augment, not
diminish, a prosecutor's options." Ibid. (quoting State v. Nwobu,
139 N.J. 236, 246 (1995)). "Accordingly, 'prosecutors are granted
broad discretion to determine if a defendant should be diverted'
to PTI instead of being prosecuted." Ibid. (quoting K.S., supra,
220 N.J. at 199).
"Thus, the scope of review is severely limited." Ibid.
(quoting State v. Negran, 178 N.J. 73, 82 (2003)). "Reviewing
courts must accord the prosecutor '"extreme deference."'" Ibid.
(quoting Nwobu, supra, 139 N.J. at 246). "[I]nterference 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) (quoting Negran, supra, 178 N.J. at 82), certif. denied, 222
N.J. 18 (2015).
We apply the same standard as the trial court, and review its
decision de novo. Waters, supra, 439 N.J. Super. at 226. We must
hew to that standard of review.
III.
The prosecutor denied defendant's application for admission
into PTI for a number of reasons. The prosecutor noted defendant
was charged with second-degree offenses, which carry a presumption
against admission into PTI. In addition, the prosecutor found
5 A-2812-15T1
denial was supported by "[t]he nature of the offense," "[t]he
facts of the case," defendant's "motivation," "[t]he needs and
interests of the victim and society," and the determination that
"the public need for prosecution" outweighed "the value of
supervisory treatment" and "the harm done . . . by abandoning
criminal prosecution . . . outweigh[ed]" any societal benefits
from allowing PTI. N.J.S.A. 2C:43-12(e)(1), (2), (3), (7), (14),
(17). The prosecutor highlighted that defendant left such young
children on their own, that she gave contradictory versions of why
she did so, and that a neighbor told police defendant frequently
left the children home alone. Finally, the prosecutor doubted
"rehabilitative efforts will be short term."
The prosecutor properly cited the presumption against PTI.
Guideline 3(i) states "[a] defendant charged with a . . . second
degree offense . . . should ordinarily not be considered for
enrollment in a PTI program." "This provision represents a
'decision to prevent serious offenders from avoiding prosecution
in ordinary circumstances,' and creates 'a presumption against
diversion.'" Waters, supra, 439 N.J. Super. at 226 (quoting State
v. Caliguiri, 158 N.J. 28, 42 (1999)). "If a defendant 'fails to
rebut the presumption against diversion,' then '[r]ejection based
solely on the nature of the offense is appropriate.'" Id. at 227
6 A-2812-15T1
(alteration in original) (quoting Caliguiri, supra, 158 N.J. at
43).
Defendant asserts that relying on the presumption against PTI
for second-degree offenses under Guideline 3(i) was inappropriate
because second-degree offenders can be admitted to PTI. However,
the prosecutor did not indicate to the contrary. Rather, the
prosecutor acknowledged the presumption was applicable
"ordinarily," and provided several other reasons why defendant
should not receive PTI.
Defendant cites the August 10, 2015 addition of N.J.S.A.
2C:43-12(g)(3), but that was enacted after the prosecutor's July
20, 2015 PTI decision. In any event, the 2015 amendment simply
provides that "[a]dmission into supervisory treatment shall be
available to the following defendants only upon entering a plea
of guilty: (a) a defendant charged with a first or second degree
crime." L. 2015, c. 98, § 4. Nothing in the 2015 amendment or
its legislative history indicates that adding the requirement of
a guilty plea was intended to void the long-standing presumption
against admission to PTI for defendants charged with a first- or
second-degree crime, which has been a part of the Supreme Court's
Guidelines since 1982. See Pressler, Current N.J. Court Rules,
Guideline 3(i) to R. 3:28 (1984). Therefore, the presumption
applied here.
7 A-2812-15T1
"A defendant may rebut the presumption by 'showing compelling
reasons justifying the applicant's admission and establishing that
a decision against enrollment would be arbitrary and
unreasonable.'" Waters, supra, 439 N.J. Super. at 227 (quoting
Guideline 3(i)). Defendant contends she overcame the presumption
because this was her first arrest, she was charged with a
nonviolent offense, she did not intend to harm her children, and
her mother, who was her primary childcare resource, had recently
passed away.1 However, "'[a] defendant must demonstrate something
extraordinary or unusual,' not merely 'that the accused is a first-
time offender and has admitted or accepted responsibility for the
crime.'" Ibid. (quoting Nwobu, supra, 139 N.J. at 252).
The circumstances presented by defendant were not so
compelling as to rebut the presumption against PTI. "[T]he
interests of society may justify the denial of an application for
admission into PTI even though a defendant has led an exemplary
life except for the conduct which forms the basis of the pending
criminal charges." State v. Seyler, 323 N.J. Super. 360, 370
(App. Div. 1999), aff'd o.b., 163 N.J. 69 (2000).
1
Defendant contends the prosecutor did not consider those facts.
However, the prosecutor was aware of those facts, and her letter
said she considered "all of the relevant reports" and "[a]ll of
the facts in this defendant's case." "Thus, defendant's contention
. . . is not sustainable." See Wallace, supra, 146 N.J. at 588.
8 A-2812-15T1
"Even if 'extraordinary and unusual' circumstances exist to
overcome the presumption against admission into PTI for certain
offenses," a court may only "overrule a prosecutor's decision to
accept or reject a PTI application . . . 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) (quoting Wallace, supra, 146 N.J. at 582).
"Ordinarily an abuse of discretion will be
manifest if defendant can show 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."
[Wallace, supra, 146 N.J. at 583 (quoting
State v. Bender, 80 N.J. 84, 93 (1979)).]
Defendant argues that in evaluating the facts of the case,
the prosecutor inappropriately considered the neighbor's
statements to the police that the children were alone since 10:00
a.m. and had been frequently left alone in the past. Defendant
claims that neighbor bore animosity toward defendant and had motive
to lie, but plaintiff's claim is unsupported by evidence. In any
event, "[a] prosecutor is certainly free to disbelieve statements
9 A-2812-15T1
presented by defense witnesses and to instead credit the
anticipated contrary testimony of the State's witnesses." Lee,
supra, 437 N.J. Super. at 568.
The prosecutor also considered defendant's "motivation,"
N.J.S.A. 2C:43-12(e)(3), which can encompass both her "motivation
behind the commission of the crime" and her "motivation to succeed
in the [PTI] program." State v. Leonardis, 71 N.J. 85, 101 n.9,
112 (1976); e.g., State v. Rizzitello, 447 N.J. Super. 301, 309
(App. Div. 2016); State v. Imbriani, 291 N.J. Super. 171, 179
(App. Div. 1996). The prosecutor found defendant's motivation
"suspect." Defendant told the PTI interviewer she left the
children alone only to get cash and buy them food. However, the
prosecutor noted she gave conflicting stories to the police at the
time she returned home. Defendant argues that was inappropriate
because her motivation cannot be assessed by a single conversation
with police while being arrested. However, the prosecutor was not
required to credit the motivation defendant later gave the PTI
interviewer, which appeared inconsistent with the 10 a.m. to 4
p.m. period the children allegedly were alone. The prosecutor
also noted defendant herself did not express remorse or acknowledge
the inappropriateness of her actions. Her lack of candor and
failure to accept full responsibility for her actions supported
10 A-2812-15T1
the prosecutor's finding that she lacked motivation to benefit
from supervisory treatment.
Defendant argues the prosecutor ignored a letter submitted
by Visiting Homemaker Service regarding defendant's performance
in its parenting courses, which attested to her good character as
a mother. However, the prosecutor could give little weight to
that letter given the evidence that, despite having completed
parenting classes, defendant nonetheless left her small children
alone for six hours. See State v. Brooks, 175 N.J. 215, 230 (2002)
(finding "numerous letters attesting to [the defendant's] good
character" could not "detract from the nature of his acts or from
the fact that . . . defendant appreciated the wrongful nature of
his conduct and simply disregarded it"). The prosecutor's decision
not to rely on defendant's explanations of her whereabouts, as
well as the letter regarding her character, was within the
prosecutor's discretion. See Lee, supra, 437 N.J. Super. at 568.
Defendant argues it was inappropriate for the prosecutor to
consider the needs of the victims and of society for prosecution
of defendant's irresponsible abandonment of such young children.
Defendant argues cases of irresponsible parenting, including
neglect, are commonly handled in civil courts by the Division of
Child Protection and Permanency (DCP&P). However, N.J.S.A. 2C:24-
4(a) and N.J.S.A. 9:6-3 explicitly allow the prosecutor to seek
11 A-2812-15T1
criminal prosecution for such neglect, and "[t]he selection of the
charge rests in the sound discretion of the prosecutor." See
State v. D.V., 348 N.J. Super. 107, 115-16 (App. Div. 2002), aff’d
o.b., 176 N.J. 338 (2003).
Defendant argues the prosecutor made a clear error of judgment
by prosecuting her when other cases with similar or identical
conduct might not be prosecuted. However, "'prosecutorial
decisions in PTI matters are primarily individualistic in nature,'
and thus ordinarily 'a defendant will not prevail merely because
he can demonstrate that, unlike himself, others who have been
charged with similar offenses have been diverted into PTI.'"
Waters, supra, 439 N.J. Super. at 235 (quoting State v. Sutton,
80 N.J. 110, 119 (1979)). Defendant similarly cannot prevail by
showing others have been sued civilly by DCP&P, given our extreme
deference to prosecutorial discretion. In any event, the apparent
duration and frequency of defendant's abandonment of the children,
and her subsequent dissembling about it, distinguish her case from
the DCP&P case she cites, where a mother left her sleeping child
unattended for approximately ten minutes in a locked motor vehicle
in a store parking lot while she was in the store. Cf. Dep't of
Children & Families, Div. of Child Prot. & Permanency v. E.D.-O.,
223 N.J. 166, 169 (2015). We are particularly hesitant to find
12 A-2812-15T1
that a prosecutor's determination was a clear error of judgment.
State v. Maddocks, 80 N.J. 98, 105 (1979).
Defendant cites the prosecutor's comment in her denial letter
that "defendant has a prior history with DCP&P, yet has been unable
to comport her conduct to acceptable societal standards. In light
of this DCP&P, it cannot be said that rehabilitative efforts will
be short term." Defendant argues her prior involvement with the
DCP&P was an inappropriate factor because that matter arose from
domestic violence perpetrated by the father of one of her children,
and defendant was one of the victims. Defendant is correct that
being a victim of domestic violence would not be a basis for
denying PTI, but that was not the basis cited by the prosecutor.
Rather, as the prosecutor's letter suggested and as she explained
at her motion hearing, the prosecutor was referring to the services
defendant received due to DCP&P's involvement, as a result of
which the twenty-five-year-old defendant "knew what she was doing
was not appropriate." Defendant concedes that her parenting
classes were from "a DCP&P-associated support agency." The
prosecutor could consider defendant's failure to heed those
societal standards in finding that rehabilitation would be slow
and PTI inadequate.
Defendant has failed to show the prosecutor's decision "was
not premised upon a consideration of all relevant factors, (b) was
13 A-2812-15T1
based upon a consideration of irrelevant or inappropriate factors,
or (c) amounted to a clear error in judgment." Wallace, supra,
146 N.J. at 583 (quoting Bender, supra, 80 N.J. at 93). Thus, we
cannot say the prosecutor's decision was arbitrary, irrational,
or otherwise an abuse of discretion.
In any event, defendant cannot meet the standard for a patent
and gross abuse of discretion because the prosecutor's decision
did not "'clearly subvert the goals underlying [PTI].'" Ibid.
(citation omitted). 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). This was not a "'victimless' offense[]," and the victims
were small children unable to care for themselves. N.J.S.A. 2C:43-
12(a)(3). Nor was the prosecutor required to find that PTI would
be sufficient to deter defendant from future criminal neglect.
See N.J.S.A. 2C:43-12(a)(1), (2), (5). We cannot say the
prosecutor's decision clearly subverted the goals of PTI.
IV.
Defendant also submits the prosecutor's decision, at minimum,
constituted an abuse of discretion requiring a remand for
reconsideration. A reviewing court may "vacate a PTI rejection
and remand to the prosecutor for reconsideration" if it "finds
that 'the prosecutor's decision was arbitrary, irrational, or
otherwise an abuse of discretion, but not a patent and gross
14 A-2812-15T1
abuse'" and "a remand will serve a useful purpose." Wallace,
supra, 146 N.J. at 583 (quoting State v. Dalglish, 86 N.J. 503,
509-11 (1981)). As set forth above, however, defendant has failed
to make such a showing.
Ultimately, "[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." Nwobu, supra, 139 N.J. at 254.
As in Nwobu, "[w]e cannot say that such a decision could not have
been reasonably made in this setting." Ibid.
Defendant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
15 A-2812-15T1
STATE OF NEW JERSEY VS. RIANNA L. DRINKS(15-05-0679, HUDSON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion