STATE OF NEW JERSEY v. E.R.

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1294-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. March 14, 2022

APPELLATE DIVISION
E.R.,

Defendant-Appellant.
_______________________

Submitted January 18, 2022 – Decided March 14, 2022

Before Judges Messano, Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment Nos. 18-08-
1800, 18-08-1838 and 18-12-2955.

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

Grace C. MacAulay, Acting Camden County
Prosecutor, attorney for respondent (Kevin J. Hein,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ENRIGHT, J.A.D.
In this appeal, we consider the legal issue of whether the prosecutor

properly denied defendant E.R., 1 a middle-aged woman with a history of mental

health problems, entry into the pretrial intervention program (PTI), N.J.S.A.

2C:43-12, based primarily on the belief that probation could provide a more

appropriate level of supervision — without addressing the type of supervision

defendant required or why it couldn't be afforded her through PTI.

Defendant appeals from her October 7, 2019 judgments of conviction,

contending the trial court erred in affirming the prosecutor's denial of her

application for admission to PTI. We agree, and accordingly vacate the

challenged June 20, 2019 order, remanding this matter for further proceedings.

Defendant was charged under three separate indictments for offenses she

committed in May 2018. On May 5, 2018, defendant approached a Camden

County sheriff's officer seated in a marked car. She moved to strike the officer

on his head, but because he shielded himself, she hit his arm. The officer did

not report he was injured during the incident. When the officer asked why she

struck him, defendant responded, "because you looked like a white boy and you

1
We use initials pursuant to Rule 1:38-3(c)(5).

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2
shouldn't be here, it should be a black man." Defendant was arrested and

charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a).2

The next day, while defendant was detained at the Camden County Jail,

she struck a corrections officer who tried to check her blood sugar levels. The

officer sustained a bloody nose. As a result of this incident, defendant was

charged with third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(5)(h).

On May 29, 2018, defendant was receiving treatment in the psychiatric

ward of Cooper Hospital and struck a nurse. The nurse suffered minor scratches

and experienced dizziness. Based on this event, defendant was charged with

third-degree aggravated assault pursuant to N.J.S.A. 2C:12-1(b)(5)(j).

II.

It is uncontroverted defendant suffers from mental health issues and has

been diagnosed with schizoaffective disorder, bipolar type. She also has

experienced paranoia, delusions, and auditory hallucinations. Moreover,

defendant has a history of inpatient admissions dating back to 2010.

2
Defendant's offense was elevated to aggravated assault because it was
committed against a law enforcement officer. Defendant's other charges were
similarly elevated to aggravated assault under N.J.S.A. 2C:12-1(b)(5)(h) and
N.J.S.A. 2C:12-1(b)(5)(j), respectively, based on the protected classes of the
victims.

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3
According to defendant, she was not taking her prescribed medication in

May 2018 when the assault charges were lodged against her. The record also

reflects that in June 2018, she had a psychiatric episode and was hospitalized

for two weeks. The day after her release, she suffered another psychiatric

episode, and was found walking naked in Camden, stating "cave wom[e]n don't

wear clothes." Defendant was hospitalized again for two weeks before she was

referred to the Rutgers University Behavioral Health facility in July 2018.

Defendant claims she was compliant with the treatment prescribed for her at this

facility, which included counseling to help her understand "the dose, schedule,

risks and benefits of taking and not taking" her medication.

In February 2019, defendant applied for entry into the PTI program. Her

attorney submitted a letter on her behalf, describing defendant's mental health

issues and symptoms, and stating defendant's mental health issues were "at the

core of why she finds herself charged in the current indictments." Defense

counsel supplied the State with defendant's medical records to corroborate her

condition, and noted she was currently receiving treatment.

The State denied defendant's PTI application in March 2019, but limited

its decision to the facts pertaining to her May 5 assault on a law enforcement

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4
officer. In reaching this determination, the State relied, in part, on Rule 3:28.3

Moreover, the State reviewed each of the seventeen factors enumerated in

N.J.S.A. 2C:43-12(e) and found the following factors weighed against

defendant's admission into PTI:

(1) the nature of the offense;

(2) the facts of the case;

(3) the motivation and age of the defendant;

(6) the likelihood that the applicant's crime is related to
a condition or situation that would be conducive to
change through . . . participation in supervisory
treatment;

(7) the needs and interest of the victim and society;

(8) the extent to which the applicant's crime constitutes
part of a continuing pattern of anti-social behavior;

(9) the applicant's record of criminal and penal
violations and the extent to which [the applicant] may
present a substantial danger to others;

(10) whether 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;

3 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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5
(14) whether or not the crime is of such a nature that
the value of supervisory treatment would be
outweighed by the public need for prosecution;

(17) whether 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;

The State also considered N.J.S.A. 2C:43-12(e)(5):

the 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 the
probability that the causes of criminal behavior can be
controlled by proper treatment[.]

It determined this factor weighed in favor of defendant's admission into PTI.

Lastly, the State found the following factors under N.J.S.A. 2C:43-12(e)

were "not applicable" and did not weigh against defendant's admission into PTI:

(4) the desire of the complainant or victim to forego
prosecution;

(11) consideration of whether or not prosecution would
exacerbate the social problem that led to the applicant’s
criminal act;

(12) the history of the use of physical violence toward
others;

(13) any involvement of the applicant with organized
crime;

(15) whether or not the applicant’s involvement with
other people in the crime charged or in other crime is

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6
such that the interest of the State would be best served
by processing his case through traditional criminal
justice system procedures;

(16) whether or not the applicant’s participation in
pretrial intervention will adversely affect the
prosecution of codefendants[.]

In April 2019, defendant filed a motion to compel her admission into the

program. The motion judge remanded the matter and directed the State to

reconsider defendant's application to include all three pending aggravated

assault charges. The State complied, and the next month, it again rejected

defendant's PTI application, having altered its position on three factors, namely

N.J.S.A. 2C:43-12(e)(3), (5), and (9).

Regarding N.J.S.A. 2C:43-12(e)(3), the motivation and age of defendant,

the State determined this factor should not have been weighed against her

previously and should have been assessed as a neutral factor. As for N.J.S.A.

2C:43-12(e)(5), the existence of personal problems and character traits which

may be related to the applicant's crime, the State no longer viewed this factor in

defendant's favor. Acknowledging "[d]efense counsel has submitted

correspondence stating that defendant has 'an extensive history of

hospitalizations' for issues including 'schizoaffective disorder, bipolar type,'"

the State concluded

it does not appear that there are services that defendant
may require which are not available through the

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criminal justice system. . . . The State is not convinced
that defendant's behavior might be controlled by
treatment. If defendant has already shown, on the three
separate occasions, that she cannot or will not comply
with treatment, the State cannot find that this factor
weighs in favor of defendant's admission.

Turning to N.J.S.A. 2C:43-12(e)(9), defendant's criminal history and the

extent to which she might present a substantial danger to others, the State

reconsidered its previous decision to count this factor against defendant. It

acknowledged defendant's pending charges represented her "first indictable

charges" and she did "not have a history of penal violations." But instead of

weighing this factor in defendant's favor, the State simply stated "[t]his factor

does not weigh against defendant's admission."

Notably, the State again weighed N.J.S.A. 2C:43-12(e)(6), the likelihood

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

conducive to change through participation in supervisory treatment, agai nst

defendant. The State determined

nothing has been provided to indicate this factor is
applicable. . . . The State's position is that the crimes at
issue here are not related to a condition or situation that
would be conducive to change through participation in
PTI. The State submits that this defendant would
benefit more from a different level of supervision. The
minimal level of supervision and requirements of the
PTI program[] (when compared to adult probation, or
the Mental Health Unit of Probation)[,] is not adequate
to supervise defendant based upon her needs and issues.

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8
[(Emphasis added).]

Based on its updated assessment, the State concluded defendant was "not

an appropriate candidate for PTI."

Defendant again moved to be admitted into PTI over the State's objection.

During argument on the motion on June 20, 2019, the State focused on the

various factors it considered when denying defendant's PTI application,

including N.J.S.A. 2C:43-12(e)(5) and (6). The assistant prosecutor reiterated

PTI would provide a "minimal level" of supervision which was "not an adequate

level of supervision to supervise [defendant] based on these three incidents that

occurred in a relative short time," and PTI was "not equipped to handle any

issues that [defendant] might present." Further, he contended a "mental health

probation program . . . would be more suitable to address [defendant]."

After summarizing the State's assessment of the factors under N.J.S.A.

2C:43-12(e), the judge found defendant had submitted "extensive records . . .

regarding . . . an extensive history of mental health disorder[s] . . . at least since

2010," and that defendant had received psychiatric treatment and been

hospitalized several times. Further, the judge noted

the State did go through each of the factors under
[ N.J.S.A.] 2C:43-12(e). And I would like to focus on,
as the State focused on, essentially factor six because I
think that goes mostly to combat the defense's argument
regarding that PTI is the right type of supervision for

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9
this defendant. And I just do not think that it is. I . . .
agree with the State.

....

. . . [I]t's great if she's stabilized now, but my concern
is . . . the [defendant] was psychotic and disorganized,
and that was going back to why she was . . . admitted
to Kennedy [West Pavilion] on June 5th of 2018. She
stayed there until June 19th, 2018. Then she went to
Northbrook from June 20th, 2018, to July 2nd of 2018.
She has a history of being in all of these different
facilities . . . .

I . . . agree with the State that the level of supervision
under PTI is simply not enough. I'm . . . happy that
[defendant] seems to be stabilized at this point in time.
I'm happy that she hasn't picked up any new offenses
since May 29th of 2018, but I . . . do not think . . . . the
defense has . . . clearly and convincingly established
that the prosecutor's refusal was based upon a patent
and gross abuse of discretion.

. . . . [T]he State . . . did consider the mental health
records that were submitted by the defense. I find that
. . . there is no abuse of discretion here. The
prosecutorial veto was premised upon consideration of
all relevant factors, was not based upon irrelevant or
inappropriate factors, and I do not find amounted to a
clear error in judgment.

So, for all those reasons, the PTI appeal is denied.

The judge entered a conforming order memorializing her decision on June

20, 2019. Four days later, defendant pled guilty to one count of third-degree

aggravated assault on a health care worker, based on the May 29, 2018 incident,

and one count of fourth-degree aggravated assault on a law enforcement officer,

A-1294-19

10
as it related to the May 5, 2018 incident. 4 In exchange for her pleas, the State

agreed to dismiss the remaining aggravated assault charge, and recommended

defendant be sentenced to concurrent terms of probation on each count,

conditioned on concurrent 270-day jail terms or acceptable programs in lieu of

jail. Further, defendant agreed to submit to a mental health evaluation, follow

any treatment recommendations, and complete an anger management course.

On September 27, 2019, defendant was sentenced in accordance with her plea

agreement.

III.

Defendant appeals from her judgments of conviction, renewing the

argument she made before the trial court, i.e., "[t]he prosecutor's rejection of

[her] admission into [PTI] was an arbitrary, patent, and gross abuse of discretion

which must be corrected." Defendant particularly takes issue with the assistant

prosecutor's conclusion that she could not be adequately supervised through PTI,

arguing he gave "short shrift to the role that [defendant's] schizoaffective

disorder played in the offenses, or her amenability to treatment, which was

4
Although defendant has not challenged the adequacy of the factual bases for
her guilty pleas, the transcript of her plea colloquy raises questions as to whether
she "deliberately committed" the offenses to which she pled guilty, as required
by Rule 3:28-4(b)(1)(iii), or whether defendant possessed any of the culpable
mental states required for conviction under N.J.S.A. 2C:12-1(a).

A-1294-19

11
displayed through her compliance with her mental health treatment and

medication."

Because the State: (1) failed to detail the level of supervision defendant

required, considering her lack of a criminal history at age fifty-one and her

recent, significant efforts to rehabilitate herself; (2) neglected to explain how

the level of supervision defendant would receive on PTI differed significantly

from the level she would receive on probation and why the necessary level of

supervision could not be afforded to her through PTI; and (3) failed to address

why defendant's lack of criminal history and compliance with mental health

treatment were not weighed in favor of her entry into PTI, we are constrained to

vacate the June 20, 2019 order, and remand for further proceedings.

"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)). The "primary goal" of PTI

is the "rehabilitation of a person accused of a criminal offense." State v. Bell,

217 N.J. 336, 346 (2014) (citing State v. Leonardis, 71 N.J. 85, 98 (1976)). "It

is designed 'to assist in the rehabilitation of worthy defendants, and, in the

process, to spare them the rigors of the criminal justice system.'" State v.

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12
Randall, 414 N.J. Super. 414, 419 (App. Div. 2010) (quoting State v. Watkins,

193 N.J. 507, 513 (2008)).

Because PTI decisions are "a quintessentially prosecutorial

function," State v. Wallace, 146 N.J. 576, 582 (1996), our review of a

prosecutor's denial of a PTI application is "severely limited," State v. Negran,

178 N.J. 73, 82 (2003). We therefore afford prosecutors "broad discretion to

determine if a defendant should be diverted." State v. K.S., 220 N.J. 190, 199

(2015) (citing Wallace, 146 N.J. at 582). However, "[i]ssues concerning the

propriety of the prosecutor's consideration of a particular [PTI] factor are akin

to 'questions of law'" and must be reviewed de novo. State v. Denman, 449 N.J.

Super. 369, 376 (App. Div. 2017) (quoting State v. Maddocks, 80 N.J. 98, 104

(1979)). In such instances, "there is a relatively low threshold for judicial

intervention," Watkins, 193 N.J. at 520, and "courts should exercise independent

judgment in fulfilling their responsibility to maintain the integrity and proper

functioning of PTI as a whole," State v. Dalglish, 86 N.J. 503, 510 (1981).

If a "reviewing court determines that the 'prosecutor's decision was

arbitrary, irrational, or otherwise an abuse of discretion . . . ' the reviewing court

may remand to the prosecutor for further consideration." K.S., 220 N.J. at 200

(quoting Dalglish, 86 N.J. at 509). "A remand to the prosecutor affords an

opportunity to apply the standards set forth by the court 'without supplanting the

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13
prosecutor's primacy in determining whether [PTI] is appropriate in individual

cases.'" Ibid. (quoting Dalglish, 86 N.J. at 514).

Additionally, a reviewing court may overturn a prosecutor's rejection

of PTI when a defendant "clearly and convincingly establish[es] that the

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

Watkins, 193 N.J. at 520 (citation omitted). A patent and gross abuse of

discretion occurs when "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 . . .

clearly subvert[ed] the goals underlying [PTI]." Roseman, 221 N.J. at
625 (quoting Bender, 80 N.J. at 93). In other words, a defendant satisfies this

heightened standard upon establishing not only an abuse of discretion, but also

that the prosecutor's decision "ha[d] 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). "Where a defendant can make that showing, a [reviewing] court may admit

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14
a defendant, by order, into PTI over the prosecutor's objection." Roseman, 221 N.J. at 625 (citing Dalglish, 86 N.J. at 513).

Although each county's PTI program may vary, N.J.S.A. 2C:43-12(e)

enumerates a uniform, non-exhaustive list of seventeen factors a prosecutor

must consider in determining a defendant's "amenability to correction" and

"potential responsiveness to rehabilitation" through PTI. Watkins, 193 N.J. at
520 (citing N.J.S.A. 2C:43-12(b)). Rule 3:28 contains similar considerations

for weighing a defendant's amenability to PTI, and mandates, in part, "[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)(iii).

Once a prosecutor considers the appropriate statutory factors and Rules of

Court, the prosecutor also "must make an individualized assessment of the

defendant, taking into account all relevant factors." K.S., 220 N.J. at 202.

"Because mental health issues impact that assessment, the prosecutor is required

to consider a defendant's mental illness," ibid. (citing State v. Hoffman, 399 N.J.

Super. 207, 214-15 (App. Div. 2008)), "the applicant's effort to seek help for a

disorder[,] and the applicant's progress in such program or therapy," Negran,

178 N.J. at 85. "Those considerations bear directly on the applicant's suitability

to respond to . . . rehabilitation while subject to PTI supervision." Ibid.

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15
Governed by these principles, we are satisfied the assistant prosecutor's

denial of defendant's PTI application "was not premised upon a consideration of

all relevant factors" and the matter should be remanded for further consideration.

Bender, 80 N.J. at 93.

Initially, we note the State denied defendant's second PTI application, in

part, due to the language referenced in Rule 3:28-4(b)(1)(iii). While the Court

noted in K.S., "[t]here is a 'presumption against acceptance' into [PTI] for

defendants who have committed certain categories of offenses," 220 N.J. at 198

(quoting Watkins, 193 N.J. at 520), we have cautioned the presumption is "not

a mandate . . . [but] 'only a vehicle to elaborate upon [the] statutory criteria'

while still vesting ultimate decision[-]making authority in the prosecutor." Lee,

437 N.J. Super. at 564 (quoting Wallace, 146 N.J. at 586).

Additionally, the assistant prosecutor declared that defendant could not be

adequately supervised through PTI, given that it provided a "minimal level" of

supervision. But he failed to specify what level of supervision defendant

required at that point. Such information was critical, considering defendant had

no criminal history leading up to the events of May 2018, and had remained

offense-free for over a year by the time the judge rendered her decision on

defendant's request to enter the PTI program.

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16
Further, although the assistant prosecutor was supplied with defendant's

mental health records and advised by defense counsel she was compliant with

her mental health treatment, the assistant prosecutor did not explain why the

supervisory services offered through probation were unavailable to defendant if

she was admitted into PTI. Absent this essential comparison of services

available through PTI versus probation, and given the State's failure to detail

why defendant would not be amenable to PTI supervision, despite her complete

lack of a criminal history and purported compliance with her mental health

treatment, we are persuaded defendant was deprived of the comprehensive

individual assessment to which she was entitled from the State when it evaluated

her suitability for PTI supervision.

In State v. Fitzsimmons, we ordered a remand after concluding the State

"abused its discretion by failing to adequately account for the self -willed,

vigorous rehabilitation defendant ha[d] undergone." 286 N.J. Super. 141, 144,

(App. Div. 1995). In that case, the defendant pled guilty to two counts of

burglary and one count of distributing a controlled substance near a school zone.

Id. at 143. After struggling with drug addiction, Fitzsimmons applied to PTI.

Id. at 145. The State initially rejected his application, but we remanded the

matter so the State could explain its "concern that the short-term supervision

characteristic of PTI admission would be inadequate to insure defendant's

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17
rehabilitation." Ibid. We also directed the prosecutor to reconsider

Fitzsimmons's PTI application and "focus . . . on the issue of whether despite

defendant's remarkable rehabilitation, the countervailing public interest

nevertheless demands prosecution of these . . . offenses." Id. at 146.

Here, like the defendant in Fitzsimmons, defendant argued she made

substantial progress toward rehabilitation after the May 2018 incidents. Further,

she represented she was compliant with her mental health treatment. Moreover,

the motion judge remarked at argument that defendant "seem[ed] to be

stabilized" and had not "picked up any new offenses." Yet the record does not

demonstrate how defendant's efforts to rehabilitate herself and her progress in

treatment factored into the State's decision to deny her PTI application.

As we have noted, when the State fails to adequately explain its reasoning

for how it has assessed the relevant statutory factors, as it did here, a remand is

warranted. See State v. Mickens, 236 N.J. Super. 272, 277-78 (App. Div. 1989).

Given the passage of time, the State's review of defendant's PTI

application should be conducted anew, and its assessment must include not only

consideration of defendant's mental health issues and ongoing treatment, if any,

but also a more robust explanation of its evaluation of the factors set forth in

N.J.S.A. 2C:43-12(e). Similarly, considering how much time has passed since

the State last considered defendant's PTI application, she must be afforded the

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opportunity to supply the State with any current information bearing on her

application. See State v. Coursey, 445 N.J. Super. 506, 512-13 (App. Div.

2016). Once the State has considered defendant's updated application, it shall

advise the judge if it still opposes defendant's entry into PTI. We are confident

the judge, informed by defendant's behavior while on probation for well over

two years, at that point will be in a superior position to assess whether the State

has properly considered defendant's suitability for PTI. Should the State again

reject defendant from PTI and the judge finds such a determination constitutes

a patent and gross abuse of its discretion, we order the judge to vacate

defendant's convictions and enter an order admitting defendant into PTI. We

leave it to the court's discretion to determine if defendant should receive credit

for time spent on probation in determining the length of defendant's required

participation in the program. On the other hand, if the prosecutor still opposes

her admission, and the judge affirms the prosecutor's decision, defendant's

judgments of conviction shall stand.

Vacated in part and remanded in part. We do not retain jurisdiction.

A-1294-19

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