STATE OF NEW JERSEY v. KAYVONNE D. MILES

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2274-20

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

KAYVONNE D. MILES,

          Defendant-Respondent.


                   Submitted September 20, 2021 – Decided September 30, 2021

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Complaint No. S-2020-0135-
                   2019.

                   William A. Daniel, Union County Prosecutor, attorney
                   for appellant (Milton S. Leibowitz, Assistant
                   Prosecutor, of counsel and on the brief).

                   Joseph E. Krakora, Public Defender, attorney for
                   respondent (Douglas Helman, Assistant Deputy Public
                   Defender, of counsel and on the brief).

PER CURIAM
        The State appeals from an April 14, 2021 order admitting defendant

Kayvonne D. Miles into the pretrial intervention (PTI) program over the

prosecutor's objection. The State contends the motion judge erred by finding

the prosecutor's decision rejecting defendant from PTI constituted a patent and

gross abuse of discretion. We reverse and remand.

                                        I.

        The relevant facts leading to the prosecutor's denial of defendant's PTI

application are undisputed and accurately stated in her initial denial letter.

Between November 15, 2019, and December 10, 2019, defendant stole various

items worth $7,151.90 from a Target store in Union, where he was employed as

a "Security Specialist" for more than two years. Video surveillance cameras

depicted eleven instances in which defendant removed items from the sales

floor, brought them into the security office, and left the store without paying for

them.

        Accordingly, on December 10, 2019, Target's security manager installed

a covert camera above the door to the security office. Later that day, the

manager observed defendant remove electronic gaming devices from the store

floor and return to the security office with the items. The covert camera depicted

defendant concealing the items in Target shopping bags. When confronted by


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the security manager, defendant admitted his conduct.           Target terminated

defendant's employment and contacted the Union Police Department.

      Defendant was charged with third-degree theft,  N.J.S.A. 2C:20-3(a), in a

complaint-summons. He was twenty-three years old at the time of the offense,

had no prior criminal history, and lived with his parents.

      On December 29, 2020, defendant applied for PTI, and a probation officer

recommended admission. Thereafter, the prosecutor issued a cogent written

statement of reasons, rejecting defendant's application. The prosecutor found

six of the seventeen nonexclusive criteria set forth in  N.J.S.A. 2C:43-12(e) were

relevant to her decision: the "nature of the offense" (factor one); the "facts of

the case" (factor two); the "needs and interests of the victim and society" (factor

seven); the "extent to which the applicant's crime constitutes part of a continuing

pattern of anti-social behavior" (factor eight); the "crime is of such a nature that

the value of supervisory treatment is outweighed by the public need for

prosecution" (factor fourteen); and the "harm done to society by abandoning

criminal prosecution outweighs the benefits to society by channeling an offender

into a supervisory treatment program" (factor seventeen).          The prosecutor




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detailed her reasons for each of those six factors, and noted defendant's

"motivation and age" (factor three) weighed "minimally in defendant's favor."1

      Considering factors one and two in tandem, the prosecutor noted: "This

was not a one-time offense but occurred multiple times over the course of nearly

one month." Further, defendant "attempted to hide his actions" by removing the

items from the sales floor, returning to the security office with the items, placing

them in shopping bags in an area of the office that was not under video

surveillance, and removing the items from the store without paying for them.

The prosecutor determined "[t]he facts and nature of this matter [w]ere too

serious to allow defendant into PTI here, where defendant's misconduct

terminated only when confronted by his manager."

      Regarding factors seven, fourteen, and seventeen, the prosecutor

concluded PTI was "not outweighed by prosecution." The prosecutor reasoned:

            Companies are entitled to trust that those they hire as
            security personnel or as asset protection officers would
            do just that, protect the assets. Further, theft from
            companies gets passed onto the consumer leading to
            higher prices for goods as companies make up the loss
            suffered when a theft occurs.


1
  In its responding trial brief, the State addressed all remaining factors, finding
all were inapplicable, except factor four: "the victim is unwilling to forgo
prosecution" because Target is "concerned about restitution" and the risk that
defendant will repeat this conduct "as a security guard elsewhere."
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      As to factor eight, the prosecutor noted defendant's crime spree occurred

over the course of nearly one month.          Accordingly, she found the "crime

constitute[d] a continuing pattern of anti-social behavior."

      Citing Rule 3:28-4(b)(1),2 which in relevant part provides "the defendant's

application should generally be rejected" where the defendant breaches the

"public trust," the prosecutor found defendant violated Target's trust for many

of the same reasons cited previously in her rejection letter. The prosecutor also

noted "defendant knew that during that time of year it was harder for the

[s]ecurity [m]anager of that Target location to perform his weekly inventory

checks[.]"

      Defendant appealed the denial of his PTI application, contending the

prosecutor's rejection constituted a patent and gross abuse of discretion. He

claimed the prosecutor "relied on inappropriate factors" by, for example, giving

undue weight to the nature of the charges in view of his willingness to pay full

restitution. Defendant further contended the State "failed to consider all relevant

factors under N.J.S.A. 2C:43-12(e)." In that regard, defendant claimed the


2
   The prosecutor mistakenly cited subsection (a) of the Rule. The prosecutor
noted that the Rule includes consideration as to "whether defendant's violation
is part of a continuing criminal business or enterprise," but did not rely on that
factor. In any event, in its trial brief and its merits brief on appeal, the State
clarified that its rejection of defendant's application did not rely upon that factor.
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prosecutor "failed to consider [his] youth and immaturity at the time of this

offense" and that he has since matured. Because Target is a private company,

defendant also argued the State abused its discretion by finding he breached the

public trust.

      Following argument on March 19, 2021, the judge reserved decision and

thereafter issued a written decision, granting defendant's motion. This appeal

followed.

                                         II.

      We begin our analysis by recognizing certain well-established principles.

The scope of judicial review of the prosecutor's rejection of PTI is "severely

limited." State v. Negran,  178 N.J. 73, 82 (2003). Deciding whether to permit

diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace,

 146 N.J. 576, 582 (1996); see also State v. Roseman,  221 N.J. 611, 624 (2015).

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

(citation omitted).




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      A "[d]efendant generally has a heavy burden when seeking to overcome a

prosecutorial denial of his admission into PTI." State v. Watkins,  193 N.J. 507,

520 (2008) (internal citation omitted). Therefore, "to overturn a prosecutor's

rejection, a defendant must 'clearly and convincingly establish that the

prosecutor's decision constitutes a patent and gross abuse of discretion.'" State

v. Nicholson,  451 N.J. Super. 534, 553 (App. Div. 2017) (internal citations

omitted). "A patent and gross abuse of discretion is defined as a decision that

'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 (quoting Wallace,  146 N.J. at 582-83).

      Accordingly, courts give prosecutors "broad discretion" in determining

whether to divert a defendant into PTI. State v. K.S.,  220 N.J. 190, 199 (2015).

That discretion is not, however, without limits. Negran,  178 N.J. at 82. "A

rejected applicant must be provided with a clear statement of reasons for the

denial." Ibid. Further, the decision whether to admit a defendant to a PTI

program 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)).

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      " N.J.S.A. 2C:43-12(e) sets forth a list of seventeen nonexclusive factors

that prosecutors must consider in connection with a PTI application." State v.

Johnson,  238 N.J. 119, 128 (2019). Rule 3:28 contains similar considerations,

and also requires:

            If the crime was (i) part of organized criminal activity;
            or (ii) part of a continuing criminal business or
            enterprise; or (iii) deliberately committed with violence
            or threat of violence against another person; or (iv) 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.

            [R. 3:28-4(b)(1).]

      We apply the same standard of review of a prosecutor's rejection of a PTI

application as the trial court and review the court's decision de novo. State v.

Waters,  439 N.J. Super. 215, 226 (App. Div. 2015). We will interfere with a

prosecutor's decision only in "the most egregious examples of injustice and

unfairness." Ibid. (internal citations and quotations omitted).

      Guided by those standards, we conclude the judge erred in ordering

defendant's admission into the PTI program over the prosecutor's objection.

Defendant failed to demonstrate the prosecutor's decision was not based on a

thorough consideration of all appropriate factors and constituted a gross and

patent abuse of discretion. The prosecutor properly gave significant emphasis

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to the nature and circumstances of the offense, including defendant's deliberate

theft from Target, which entrusted defendant to guard against thefts from its

Union retail store. Defendant used his "inside" position to steal items from his

employer over the course of several weeks. That conduct also supported the

prosecutor's finding that defendant's conduct constituted a pattern of anti-social

behavior.

      The prosecutor also considered defendant's individual characteristics,

including his age and lack of record. Against those mitigating factors, the

prosecutor considered defendant's violation of his employer's trust. Although

Target is not a governmental entity, it was not unreasonable for the prosecutor

to conclude: "The fact that defendant abused his position with Target causes the

State concern." Indeed, defendant was expressly hired to guard and protect

Target's property.    The prosecutor determined that such a serious crime

warranted a meaningful non-diversional outcome.

      The motion judge erred by interjecting himself into the process of

weighing applicable factors pertinent to the PTI application submitted by

defendant. The judge predicated his decision upon his own assessment of the

PTI factors, by opining, for example, that "it is not uncommon for an employee

to take advantage of their employer" instead of analyzing whether the prosecutor


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had grossly abused her considerable discretion. While reasonable minds could

differ in analyzing and balancing the applicable factors in this case, judicial

disagreement with a prosecutor's reasons for rejection does not equate to

prosecutorial abuse of discretion so as to merit judicial override.      State v.

DeMarco,  107 N.J. 562, 566-67 (1987). In this instance, the motion judge

improperly substituted his own discretion for that of the prosecutor.

      We are convinced from our review of the record that the prosecutor

considered, weighed, and balanced all requisite factors, including those personal

to defendant, and the facts and circumstances of the offense. Her rejection of

defendant's PTI application did not constitute a patent and gross abuse of

discretion.   We therefore vacate the order entering defendant into the PTI

program, and remand for further proceedings on the summons.

      Reversed and remanded. We do not retain jurisdiction.




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