STATE OF NEW JERSEY v. KEVIN M. MCCOURT

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                        NOT FOR PUBLICATION WITHOUT THE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-0993-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KEVIN M. MCCOURT,

     Defendant-Appellant.
————————————————————————————-

              Submitted November 14, 2017 – Decided December 8, 2017

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Morris County, Indictment No.
              16-03-0290.

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

              Fredric M. Knapp, Morris County Prosecutor,
              attorney   for  respondent   (Paula  Jordao,
              Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant appeals from the August 2, 2016 Law Division order

affirming the prosecutor's denial of his application for admission

into the pretrial intervention (PTI) program.                We affirm.

                                         I

      In March 2015, defendant hacked into the iCloud account of a

young woman (the victim) and found nude pictures of her. Defendant

posted the pictures on an anonymous website for public viewing.

The   victim    did   not   consent     to   the   posting    of   the   pictures.

Defendant      subsequently    admitted      his    wrongdoing,     removed     the

pictures from the website, and apologized to the victim.                        The

prosecutor     contends     defendant    admitted    his     wrongdoing    to   the

victim only after "he thought he would not get in trouble with law

enforcement."

      On April 8, 2015, the police interviewed defendant, and he

admitted to hacking into the victim's account and posting the

pictures.      A grand jury returned an indictment charging defendant

with third-degree invasion of privacy, 
N.J.S.A. 2C:14-9(c) (count

one); third-degree access and disclosure, 
N.J.S.A. 2C:20-31(a)

(count two); and third-degree computer criminal activity, 
N.J.S.A.

2C:20-25(a) (count three).

      On May 26, 2015, defendant applied for admission into PTI.

A probation officer interviewed defendant and recommended him for

enrollment in PTI.          The Morris County Prosecutor rejected the

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recommendation and denied defendant admission into PTI.                  The

prosecutor   found     "[d]efendant's     actions   were    deliberate   and

manipulative; . . . defendant [tried] to appear as a protector to

the victim, but was in fact the perpetrator."               The prosecutor

noted this was not a victimless crime and the victim "does not

wish to forego prosecution."          The prosecutor further reasoned

prosecution was in the best interests of the public in deterring

this type of crime.     The prosecutor did acknowledge the facts that

defendant was employed and had no prior criminal record, and

therefore    offered     a     plea   agreement     "with    a   sentencing

recommendation of probation."

     Pursuant to Rule 3:28(h), defendant appealed the prosecutor's

decision rejecting his application.            The Law Division denied

defendant's appeal, concluding defendant failed to meet his burden

of proving a patent and gross abuse of discretion and failed to

establish a clear error of judgment.

     After the trial court ruled on his PTI appeal, defendant pled

guilty to one count of third-degree invasion of privacy, pursuant

to a plea agreement that called for a one-year term of non-

custodial probation.         After the trial court sentenced defendant

in accordance with the plea agreement, he filed this appeal.

     Before us, defendant presents the following argument:



                                      3                             A-0993-16T1
             The rejection of [defendant's] application for
             [PTI] constituted a patent and gross abuse of
             discretion requiring a reversal or, at
             minimum, a clear error of judgment, requiring
             a remand for reconsideration.

Specifically, defendant argues the prosecutor failed to consider

defendant's amenability to rehabilitation and overemphasized the

victim's desire to prosecute.

                                   II

       Eligibility for PTI is based primarily on "the applicant's

amenability to correction, responsiveness to rehabilitation and

the nature of the offense."     
N.J.S.A. 2C:43-12(b).          In determining

whether to recommend or consent to admission, the PTI director and

the prosecutor must consider seventeen factors listed in 
N.J.S.A.

2C:43-12(e).

       "Admission [into PTI] requires a positive recommendation from

the PTI director and the consent of the prosecutor."                 State v.

Negran, 
178 N.J. 73, 80 (2003) (citing State v. Nwobu, 
139 N.J.
 236,   246   (1995)).    In   making       a   determination   to   admit,    "a

prosecutor must consider an individual defendant's features that

bear on his or her amenability to rehabilitation."             Nwobu, supra,


139 N.J. at 255 (citing State v. Sutton, 
80 N.J. 110, 119 (1979)).

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) (citing Nwobu, supra, 139

                                       4                               A-0993-16T
1 N.J. at 246).          "In respect of 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."

Negran, supra, 
178 N.J. at 82 (citing Nwobu, supra, 
139 N.J. at
 246).

     Accordingly, a court's scope of review of such a decision is

"severely limited."        Ibid. (citing Nwobu, supra, 
139 N.J. at 246).

It has been characterized as one of "'enhanced' or 'extra'"

deference.       Ibid. (quoting State v. Baynes, 
148 N.J. 434, 443-44

(1997)).    "A defendant attempting to overcome a prosecutorial veto

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 . . . .'"                Ibid. (quoting

Nwobu, supra, 
139 N.J. at 246).                 "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, supra, 
193 N.J. at 520 (quoting State v. Wallace, 
146 N.J. 576, 582-83

(1996)).     "The 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.

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                                      III

     Applying       the   above    standards,   we   discern    no     abuse    of

discretion in the prosecutor's denial of defendant's application,

much less one that is "patent and gross."            Negran, supra, 
178 N.J.

at 82.    The record here fully supports the prosecutor's denial of

defendant's application based on findings that defendant's actions

were deliberate and manipulative, the victim wished to pursue

prosecution,    and       public   interest   favored    prosecution.          The

prosecutor further acknowledged defendant was employed and had no

prior criminal record.        As the trial court noted, "the prosecutor

articulated the relevant factors and described thoroughly how they

were applied to the personal facts of defendant's case."                Like the

trial court, we find no reason to disturb the prosecutor's decision

that defendant's actions and the victim's desire to prosecute

outweighed defendant's employment and lack of criminal history.

     Defendant argues, unpersuasively, that the prosecutor abused

his discretion by focusing on the victim's desire to prosecute

rather than defendant's amenability to rehabilitation.                 The trial

judge    rejected    that    contention.    Instead,    she   found    that    the

prosecutor reasonably considered defendant's individual situation,

and she found no gross and patent abuse of the prosecutor's

discretion in rejecting defendant's PTI application.                  We find no



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error in that decision, which is supported by the evidence and the

applicable law.

      Affirmed.




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