STATE OF NEW JERSEY v. ANGEL M. FIGUEROA

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                        NOT FOR PUBLICATION WITHOUT THE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-3170-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ANGEL M. FIGUEROA,

     Defendant-Appellant.
______________________________________

              Submitted March 1, 2018 – Decided May 4, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-05-0758.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alicia J. Hubbard, 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, Angel M. Figueroa, appeals from the trial court's

upholding of the prosecutor's rejection of defendant's application
for entry into the Pre-trial Intervention Program (PTI).         
N.J.S.A.

2C:43-12; R. 3:28.1   He was previously charged in an indictment

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

third-degree cyber harassment, 
N.J.S.A. 2C:33-4.1(a), arising from

his posting on the internet a sexually explicit photograph of his

ex-girlfriend.    Defendant   applied   for   PTI,   but   the   criminal

division manager and the prosecutor rejected his admission2 based

upon an evaluation of the criteria set forth in 
N.J.S.A. 2C:43-

12(e) and the Rule 3:28 Guidelines.      Defendant appealed and the

trial court sustained the prosecutor's objections, finding that

the prosecutor's decision was not a patent and gross abuse of his

discretion.   For the reasons that follow, we affirm.

     The allegations leading to defendant's arrest, indictment and

the rejection of his PTI application are summarized from the record



1
  "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)).      In 1970, PTI was
established by Rule 3:28. Ibid. (citing State v. Watkins, 
193 N.J. 507, 517 (2008)). "PTI programs are 'governed simultaneously
by the Rule and the statute which "generally mirror[ ]" each
other.'"   Ibid. (quoting State v. Wallace, 
146 N.J. 576, 582
(1996)).
2
   "Pursuant to the procedures and guidelines established by Rule
3:28 and 
N.J.S.A. 2C:43-12, acceptance into PTI is dependent upon
an initial recommendation by the Criminal Division Manager and
consent of the prosecutor." Roseman, 
221 N.J. at 621.

                                 2                                A-3170-16T1
as   follows.   Defendant's     ex-girlfriend   reported   to    police

defendant's posting to Instagram of an explicit "screen shot"

photograph of herself.    She explained to the police that she and

defendant had dated for about two years and during that time

defendant videotaped the couple, without her knowledge, while they

engaged in sexual acts.

     Based on the girlfriend's reporting, the police arrested and

charged defendant.    At the time, defendant was twenty-four years

old, he had been honorably discharged from the National Guard, and

was working as a chef.    After his arrest, defendant explained that

he posted the images to the internet in retaliation for his ex-

girlfriend's alleged posting of "videos and her [having] wrote

stuff" about him.3

     After a grand jury indicted defendant, he applied for entry

to the PTI program.   In her rejection of defendant's application,

the assistant criminal division manager (ACDM) noted defendant

previously participated in an out-of-state- diversionary program,

mentioned a charge against him in another state without any

information about its disposition, and observed that defendant had

been charged and fined in this state for possession of a controlled

dangerous substance, a disorderly persons offense.          The ACDM


3
  Defendant never produced copies of the materials the girlfriend
allegedly posted.

                                  3                             A-3170-16T1
concluded that "[i]t appears that prior involvement with Law

Enforcement did not serve as sufficient sanction to deter defendant

from further criminal conduct and illustrates that his behavior

will not be conducive to change through short term supervision."

      On September 19, 2016, the prosecutor responded to the ACDM's

recommendation and noted his office's agreement with her rejection

of defendant's application.        The prosecutor supported his decision

by citing to "[t]he needs and interests of the victim(s) and

society," 
N.J.S.A. 2C:43-12(e)(7), which, in this case included

the victim's desire to pursue defendant's prosecution, 
N.J.S.A.

2C:43-12(e)(4), and the possible inability to remove from the

internet a picture of a victim that is posted without consent.

The   prosecutor   also   relied    upon   "[t]he   extent   to   which   the

applicant's crime constitutes part of a continuing pattern of

anti-social behavior," 
N.J.S.A. 2C:43-12(e)(8), and noted that

defendant's prior involvement in another state's diversionary

program did not deter him from committing new offenses.             He also

cited defendant's four prior arrests and his one conviction for a

"minor offense."

      Defendant appealed his rejection from PTI to the trial court.

In his opposition to defendant's appeal, the prosecutor filed a

brief that detailed his consideration of each applicable factor

as set forth in 
N.J.S.A. 2C:43-12(e), including those cited in his

                                      4                              A-3170-16T1
original rejection, the nature and facts of the case, the age and

motivation    of   defendant,   and   the      "injurious    consequences"     of

defendant's actions.

      After considering the parties' written submissions and oral

arguments, the trial court rejected defendant's appeal.                   In an

oral decision placed on the record on December 5, 2016, the trial

court found that the prosecutor considered the required factors.

It also recognized the "enhanced" deference courts are obligated

to apply to a prosecutor's decision to reject a defendant from

PTI, and the limited nature of a court's review of that decision.

The court concluded by entering its order rejecting defendant's

application.

      Defendant pled guilty to one count of invasion of privacy and

the   trial   court   sentenced   him     to    one   year   of   non-custodial

probation.    This appeal followed.

      On appeal from the trial court's decision, defendant argues:

                   POINT I

                   THE TRIAL COURT ERRED IN FINDING
                   THAT   THE   STATE'S    DENIAL   OF
                   DEFENDANT'S APPLICATION FOR PRE-
                   TRIAL INTERVENTION WAS NOT A PATENT
                   AND GROSS ABUSE OF DISCRETION.

      We begin by acknowledging that "[t]he scope of judicial review

of PTI decisions is 'severely limited[,]' and interference by

reviewing courts is reserved for those cases where needed 'to

                                      5                                 A-3170-16T1
check . . . the       "most    egregious    examples       of   injustice    and

unfairness.'"     State v. Lee, 
437 N.J. Super. 555, 563 (App. Div.

2014) (quoting State v. Negran, 
178 N.J. 73, 82 (2003)).                    "[O]n

appeal, [we] review[] PTI decisions with 'enhanced deference.'"

Ibid. (quoting State v. Brooks, 
175 N.J. 215, 225 (2002)).

      The court's review of a prosecutor's PTI determination is

limited because of the nature of the decision being made.                   "PTI

is essentially an extension of the charging decision, therefore

the   decision   to    grant    or   deny   PTI   is   a    'quintessentially

prosecutorial function.'"            Roseman, 
221 N.J. at 624 (quoting

Wallace, 
146 N.J. at 582).       Prosecutors are granted "wide latitude

in deciding whom to divert into the PTI program and whom to

prosecute through a traditional trial."           Negran, 
178 N.J. at 82.

      A prosecutor must evaluate PTI applications by considering

the factors defined by statute and court rule, and conduct an

"individualized assessment" of the applicant.               The Supreme Court

explained the evaluation process as follows:

           The assessment of a defendant's suitability
           for PTI must be conducted under the Guidelines
           for PTI provided in Rule 3:28, along with
           consideration of factors listed in N.J.S.A.
           2C:43-12(e).     These factors include "the
           details of the case, defendant's motives, age,
           past   criminal   record,   standing  in   the
           community, and employment performance[.]"
           Additionally, a PTI determination requires
           that the prosecutor make an individualized
           assessment of the defendant considering his

                                       6                               A-3170-16T1
           or her "'amenability to correction'              and
           potential         'responsiveness                 to
           rehabilitation.'"

           [Roseman, 
221 N.J.    at    621-22     (citations
           omitted).]

      A trial court "may overrule a prosecutor's decision to accept

or reject a PTI application only 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.'"         Id.   at   624-25   (quoting

Wallace, 
146 N.J. at 582).         "Where a defendant can make that

showing, a trial court may admit a defendant, by order, into PTI

over the prosecutor's objection."        Roseman, 
221 N.J. at 625.

      A patent and gross abuse of discretion occurs when

           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 judgement. . . .     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 [PTI].

           [Ibid. (quoting State v. Bender, 
80 N.J. 84,
           93 (1979)).]

      Applying these principles, we discern no patent or gross

abuse of discretion in the prosecutor's denial of defendant's PTI

application.    Thus, there is no basis to disturb the trial court's


                                    7                               A-3170-16T1
decision sustaining the prosecutor's denial.            Although defendant

certainly has a number of mitigating factors in his favor, the

reasons for the prosecutor's denial were premised on consideration

of   relevant   factors,    which     weighed     against    his   admission.

Defendant failed to clearly and convincingly establish that the

prosecutor's decision went so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice required

judicial intervention.

     We conclude defendant's arguments to the contrary are without

sufficient merit to warrant discussion in a written opinion.               R.,

2:11-3(e)(2).     Suffice   it   to   say,   "a    court's   scrutiny    of   a

prosecutor's denial of consent is normally limited to the reasons

given by the prosecutor for his [or her] action[,]" State v. Kraft,


265 N.J. Super. 106, 112 (App. Div. 1993), and "[a]bsent evidence

to the contrary, it is [to be] presumed that the prosecutor

considered all relevant factors before rendering a decision."

Ibid. (alteration in original) (quoting State v. Dalglish, 
86 N.J.
 503, 509 (1981)).

     Here, the prosecutor appropriately referred to the State's

version of the facts where those facts were relevant to the

applicable PTI factors, and the prosecutor's statement of reasons

clearly evince a substantive analysis of valid considerations.

While reasonable minds might differ as to whether defendant is a

                                      8                               A-3170-16T1
suitable candidate for admission into the program, the court's

role when considering an appeal of this sort is "limited" and the

"[court] does not have the authority . . . to substitute [its own]

discretion    for   that   of   the   prosecutor. . . . even      where    the

prosecutor's decision is one which the . . . court disagrees with

or finds to be harsh."          See Kraft, 
265 N.J. Super. at 112-113

(alteration   in    original)    (citation   omitted)   (citing    State    v.

DeMarco, 
107 N.J. 562, 566-67 (1987)).

     Affirmed.




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