STATE OF NEW JERSEY VS. G.M.(15-10-1391, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5302-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

G.M.,

Defendant-Appellant.
________________________________

Submitted October 10, 2017 – Decided October 18, 2017

Before Judges Sabatino and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
15-10-1391.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).

PER CURIAM
 Defendant G.M.1 appeals the trial court's February 29, 2016

order upholding the prosecutor's rejection of her application for

admission to the pretrial intervention ("PTI") program, and her

ensuing conviction of fourth-degree child abuse or neglect,

N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. Applying the strong judicial

deference required in reviewing such prosecutorial denials, we

affirm.

Defendant is the mother of a young son, I.L. The child's

father is H.L., who was a co-defendant with G.M. in this

prosecution.

The charges against I.L.'s parents arose out of a situation

of child endangerment that occurred on March 13 and 14, 2015, when

their infant was then nine months old. According to the State's

investigation, H.L. was at the parties' residence playing with the

child on the bed at around 4:30 p.m. when he received a Netflix

notification on his cell phone. When H.L. reached for the phone,

the infant fell off the bed. G.M., who was in another room, heard

a bang and H.L. called out to her that the infant had fallen.

According to the parents, they did not immediately notice any

bump on the child's head. The parents then went out together as

H.L. performed his job delivering pizzas, bringing the infant

1
We use initials to protect the privacy and identity of G.M.'s
minor child.

2 A-5302-15T2
along with them. H.L. admitted that he smoked marijuana during

one of his delivery stops that evening.

Around 10:30 p.m., the parents noticed that the infant was

exhibiting a bump on his head. The parents at that point decided

to take the child to Jersey City Medical Center. G.M. allowed

H.L. to drive with the infant in the car, even though the State

contends she had seen him smoking marijuana.

As reflected on the hospital's surveillance video, the

parents did not arrive at the Jersey City Medical Center until

almost midnight, more than an hour after they noticed the infant's

swollen head. According to the parents, they left the Jersey City

Medical Center because they felt the infant was not being seen

there in a timely manner. They then drove to Hoboken Hospital.

Along the way, the couple stopped so that H.L. could sell his

marijuana to a friend. They did so because H.L. realized that

they would be reported to the Division of Child Protection and

Permanency ("the Division") if they were found in possession of

marijuana at the hospital.

When the infant ultimately arrived at Hoboken Hospital, he

was diagnosed with a skull fracture, internal bleeding, and an

epidural hematoma. The child had emergency surgery. Meanwhile,

the Division was notified. During ensuing interviews, both parents

3 A-5302-15T2
admitted that they had smoked marijuana, although G.M. only

admitted having done so on the day before the infant's fall.

The State charged both parents as co-defendants with various

offenses in a single indictment. G.M. was charged with two counts

of second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a) (counts six and ten), and two counts of fourth-degree

child abuse or neglect, N.J.S.A. 9:6-1 and 9:6-3 (counts seven and

eleven).

G.M., who has no prior criminal record, applied for admission

to PTI. Although the court's assistant division manager

recommended G.M.'s admission to the program, the prosecutor

rejected her application. In a two-page rejection letter, which

he later amplified in his brief to the trial court, the prosecutor

stressed several points. Among other things, the prosecutor noted

the serious nature of the infant's skull fracture; G.M.'s

acquiescence in allowing H.L. to drive the infant around, despite

her awareness that he had been smoking marijuana and was under the

influence; the couple's delay in bringing the child to the

hospital, including the stop to make a drug transaction; and the

fact that co-defendant H.L.'s case was still open when G.M. applied

for PTI.

G.M. filed a motion with the trial court seeking to set aside

the prosecutor's rejection of her PTI application. After

4 A-5302-15T2
considering the parties' written submissions and oral argument,

the trial judge denied the motion. The judge frankly acknowledged

that although he might personally have approved PTI for G.M., he

was not persuaded on the record presented that the State's denial

amounted to a "patent [and gross] abuse" of the prosecutor's

discretion. See State v. K.S., 220 N.J. 190, 199-200 (2015)

(reaffirming the scope of review applicable to prosecutor denials

of PTI).

Following the trial court's ruling, G.M. negotiated a guilty

plea to the fourth-degree charge of child abuse or neglect set

forth in count eleven of the indictment. The other charges were

dismissed. She was sentenced to a period of two years of

probation, consistent with the terms of the plea agreement. The

plea agreement preserved G.M.'s right to reapply for PTI and, by

inference, the present appeal of the court's PTI ruling.

On appeal, G.M. makes the following singular argument in her

brief:

POINT I

THE PROSECUTOR'S REJECTION OF [G.M.'S]
APPLICATION TO BE ADMITTED INTO PTI
CONSTITUTED A PATENT AND GROSS ABUSE OF
DISCRETION.

Like the trial judge, we must be mindful that the Judiciary's

authority to second-guess prosecutorial decisions on PTI admission

5 A-5302-15T2
is extremely narrow. Given "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." State

v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J.

236, 246 (1995)). This deference to the prosecutor has been

described as "'enhanced' or 'extra'" in nature. Ibid. (citing

State v. Baynes, 148 N.J. 434, 443-44 (1997)).

It is well settled that the scope of judicial review of a

prosecutor's objection to a defendant's admission into PTI is

severely limited. Ibid.; see also Nwobu, supra, 139 N.J. at 246;

State v. Hermann, 80 N.J. 122, 128 (1979). As the Court observed

in Negran, judicial review of PTI denials "serves to check only

the 'most egregious examples of injustice and unfairness.'"

Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J.

360, 384 (1977)); State v. DeMarco, 107 N.J. 562, 566 (1987).

In accordance with these principles, a defendant seeking to

overcome a prosecutorial veto of PTI admission must "'clearly and

convincingly establish that the prosecutor's refusal to sanction

admission into a PTI program was based on a patent and gross abuse

of his discretion' before a court can suspend criminal proceedings

under Rule 3:28 without prosecutorial consent." Negran, supra,

178 N.J. at 82 (quoting Nwobu, supra, 139 N.J. at 246). See also

6 A-5302-15T2
K.S., supra, 220 N.J. at 199-200 (reaffirming a defendant's "clear

and convincing" burden to show a "patent and gross abuse" of a

prosecutor's discretion in denying PTI).

We agree with the trial court's assessment that G.M. has

failed to surmount this "clear and convincing" burden here.

Although the fact pattern suggests that the father, H.L., was more

culpable then G.M. in placing the infant at risk, the overall

sequence of events is one in which the prosecutor had ample

justification to decline G.M.'s PTI application, despite her lack

of a prior criminal record. We further note that counts six and

ten of the indictment charged G.M. with the second-degree offense

of child endangerment, a level of offense severity which triggers

a presumption against admission into PTI. See Pressler & Verniero,

Current N.J. Court Rules, Guideline 3(i) to R. 3:28 at 1291 (2018);

see also State v. Waters, 439 N.J. Super. 215, 226 (App. Div.

2015). That presumption was not clearly overcome here.

Affirmed.

7 A-5302-15T2