(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1351-18T4
STATE OF NEW JERSEY,
Submitted November 19, 2019 – Decided December 6, 2019
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Accusation No. 18-02-
Joseph E. Krakora, Public Defender, attorney for
appellant (Alicia J. Hubbard, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David Michael
Liston, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Defendant Federico Ensastegui-Diaz appeals the September 20, 2018
order denying his application for admission into the pretrial intervention
program (PTI) after he was charged with two counts of second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and two counts of
third-degree endangering the welfare of another person, N.J.S.A. 2C:24-
7.1(a)(3). We affirm.
On January 21, 2017, defendant, then age thirty-one, operated a motor
vehicle while intoxicated and with a suspended license. Two of his children,
ages one and two at the time, and their mother, were in the backseat. The one-
year-old child was not restrained in an appropriate car seat. Almost a year later
on January 3, 2018, defendant applied for admission to PTI. The assistant
prosecutor informed defense counsel that the PTI program director was not
Consequently, on February 8, 2018, defendant waived indictment and was
charged under Middlesex County Accusation No. 18-02-0123 with two counts
of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2)
(counts one and two), and two counts of third-degree endangering the welfare
of another person, pursuant to N.J.S.A. 2C:24-7.1(a)(3) (counts three and four).
On that same day, defendant pled guilty to count one, as amended to third-
degree endangering the welfare of a child and two motor vehicle violations,
DWI, and driving while suspended. The remaining counts of the Accusation
were dismissed, as well as the other traffic summonses. As part of the plea
agreement, defendant preserved the right to appeal the denial of PTI.
Pursuant to the plea agreement, the State agreed to recommend a sentence
of noncustodial probation. On February 8, 2018, defendant was sentenced to
the requisite fines and penalties for the motor vehicle violations, and a future
date was scheduled for his sentencing on count one of the Accusation.
Later in the day on February 8, 2018, defense counsel received a rejection
letter from the program regarding defendant's PTI application. The letter noted
that "[t]he crime [was] of an assaultive or violent nature, whether in the criminal
act itself or in the possible injurious consequences of such behavior," and
"defendant would not be benefitted by supervising treatment . . . ."
Under the section entitled "other," the letter explained:
On [January 3, 2018], the [defendant] was interviewed
at the Criminal Case Management Office [(CCM)] by
this Officer. When asked why he felt as though he
should be permitted to participate in PTI, the defendant
advised the following: "I am not a criminal[,] the
instant offense occurred due to a lapse in judgment. A
criminal conviction could limit my employment
opportunities." This officer did not receive discovery
for this case, therefore an evaluation of all the facts in
this case could not be reviewed. Based on the nature of
the charges, CCM is rejecting [defendant's] application
for PTI and recommending this case be handled through
traditional [c]ourt processing. . . . CCM believes
allowing the [defendant] into PTI would minimize the
nature of the [i]nstant [o]ffense, and the effects the
[defendant's] actions have on the victim and society.
[Defendant] exhibited a disregard for the safety and
well-being of the victim, as well as the consequences of
On the same date, defendant's counsel wrote a letter to the Criminal Division
Manager, asking that the application be reconsidered because "[t]he entire denial
appear[ed] to be a cut and paste job of the PTI language[,]" and the program
"should have waited for a copy of the discovery" before denying defendant's
Thereafter, on April 26, 2018, the program director reversed her decision
and recommended that defendant be admitted into PTI. The program director
incorporated her reasoning in a one-page letter. She "took the liberty of
personally reviewing the correspondence that [defense counsel] forwarded . . .
[and was] willing to overturn its decision . . . ." The prosecutor was informed
of this decision.
The prosecutor objected to PTI for defendant. On August 6, 2018, the
assistant prosecutor sent a four-page letter to defense counsel and the trial court
in which she applied each of the factors set forth in N.J.S.A. 2C:43-12(e) to
determine whether defendant should be admitted to the program.
The assistant prosecutor noted serious concerns about defendant's
intoxication, which threatened the safety of his two young children and the
public at large. At the time of his arrest, defendant's blood alcohol content was
.19 percent. She also stated that officers from the Rutgers Police Department
observed defendant traveling on Route 18 South "straddling the lane markings
between the middle lane and the right lane for an unusually prolonged time,"
and stopping abruptly on George Street "for an individual [who] had already
made his way across the crosswalk." Defendant also failed to stop for a red
The letter also stated that when the officers effectuated a motor vehicle
stop, they detected a strong odor of alcohol emanating from defendant's breath.
While exiting the vehicle, defendant stumbled, dropped his cell phone, and
failed the Standard Field Sobriety Tests.
After considering the relevant factors and defendant's highly intoxicated
state at the time of the offenses, the assistant prosecutor determined th at on
balance, the factors against admission far outweighed any other factors that
might militate in favor of diversion and would not consent to defendant's
enrollment into PTI.
On August 14, 2018, defendant appealed the rejection of his PTI
application to the trial court. Defendant argued that in opposing his application
for PTI, the prosecutor's decision constituted an abuse of discretion based on its
failure to consider all of the relevant factors.
On September 20, 2018, the judge issued a sixteen-page written decision
and determined that the prosecutor's denial was properly premised on a
consideration of all the relevant factors, which weighed against defendant's
admission into the PTI program. The judge reasoned:
[defendant] was operating his vehicle with a BAC
reading of .19% while his two children, ages [two] and
[one], were in the vehicle. The initial charge was
Endangering in the [second-degree] but [d]efendant
agreed to plead guilty to a [third-degree] violation. . . .
[T]he Criminal Case Management Office [originally]
rejected [d]efendant's PTI application . . . stating that
allowing [d]efendant into PTI would minimize the
offense, as well as [d]efendant's disregard for the well-
being of the victim and consequence of his illegal
activity. . . . These facts favor the prosecution's analysis
of the factors in [d]efendant's case. Thus, this court
does not find that the State considered inappropriate
factors, misinterpreted the facts or disregarded
evidence in support of an applicant.
Although there were more negative than positive factors here, the judge
concluded that it was within the prosecutor's discretion to give more weight to
those factors militating against diversion. The judge then ruled that the
prosecutor's determination was not a patent and gross abuse of discretion.
Thereafter, the judge sentenced defendant in accordance with the plea agreement
on count one of the Accusation, imposing a two-year period of noncustodial
This appeal followed. Defendant raises the following arguments for our
THE TRIAL COURT ERRED IN FINDING THAT
THE STATE'S DENIAL OF DEFENDANT'S
APPLICATION FOR PRE-TRIAL INTERVENTION
WAS NOT AN ABUSE OF DISCRETION.
Factors One, Two, and Twelve
The Nature Of The Offense And Facts Of
The Case And History Of Use Of Physical
Violence Towards Others.
The Motivation And Age Of The
The Desire Of The Complainant Or Victim
To Forego Prosecution.
Factors Five and Six
The Existence Of Personal Problems
Which May Be Related To The Crime And
For Which Services May Be Provided
More Effectively Through Supervisory
Treatment, The Probability That The
Causes Of The Behavior Can Be
Controlled By Treatment And The
Likelihood That The Crime Is Related To
A Situation That Would Be Conducive To
Change Through His Participation In
Factors Seven, Eleven, Fourteen, and Seventeen
The Needs And Interest Of The Victim
And Society And 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, Whether Or Not Prosecution
Would Exacerbate The Problem That Led
To the Criminal Act, 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
Factors Eight and Nine
The Extent To Which The Applicant's
Crime Constitutes Part Of A Continuing
Pattern Of Anti-Social Behavior.
Whether Or Not The Crime Is Of An
Assaultive Or Violent Nature.
The criteria for admission into PTI, as well as the procedures concerning
the program, are set forth in N.J.S.A. 2C:43-12 to -22 and Rule 3:28-1 to -10.
N.J.S.A. 2C:43-12(e) includes seventeen criteria which, among other factors,
prosecutors and program directors must consider when deciding whether to
accept or reject a PTI application. If a prosecutor denies an application, he or
she must "precisely state his findings and conclusion which shall include the
facts upon which the application is based and the reasons offered for the denial."
N.J.S.A. 2C:43-12(f). "PTI is essentially an extension of the [prosecutor's]
charging decision, therefore the decision to grant or deny PTI is a
'quintessentially prosecutorial function.'" State v. Roseman, 221 N.J. 611, 624
(2015) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).
Our review of a prosecutor's decision to deny a defendant admission into
PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Judicial
review of a PTI application exists "to check only the most egregious examples
of injustice and unfairness." State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting
State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Absent evidence to
the contrary, a reviewing court must assume that "the prosecutor's office has
considered all relevant factors in reaching the PTI decision." Nwobu, 139 N.J.
at 249 (citing State v. Dalglish, 86 N.J. 503, 509 (1981)).
A defendant seeking to have a court overrule a prosecutor's rejection of a
PTI application must "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." Wallace, 146 N.J. at 582 (alteration in original)
(quoting State v. Leonardis, 73 N.J. 360, 382 (1977)).
Defendant contends that no one was hurt, he was not speeding, he
cooperated with the police, and had no criminal history. He further emphasizes
that he accepted full responsibility for the crimes committed and the situ ation
was merely a poor lapse in his judgment. Defendant claims he is motivated to
participate in PTI, demonstrating his amenability to correction. The evidence
supporting his motivation includes his emigration to this country as a teenager;
having three children; and supporting and caring for them. Because defendant
does not have a legal status, PTI would provide him the opportunity to remain
in the United States with his family.
Having carefully considered defendant's arguments under these standards,
we conclude that no grounds exist to disturb the trial court's decision. The
record demonstrates that the assistant prosecutor evaluated each of the factors
set forth in N.J.S.A. 2C:43-12(e) and Rule 3:28-1 to -10 before denying
defendant's PTI application. Thereafter, the trial court conducted a thorough
review of the prosecutor's decision. Moreover, because defendant was charged
with two second-degree offenses, the presumption against acceptance into PTI
applies in this case. 1
On appeal, defendant advances no convincing argument that the
prosecutor's determination was a patent and gross abuse of discretion. We
therefore conclude that the judge did not err by finding that the prosecutor's
decision to deny defendant's application was not a patent and gross abuse of
Defendant's remaining arguments are without sufficient merit to wa rrant
discussion in this opinion. R. 2:11-3(e)(2).
The fact that defendant ultimately pled guilty to a third-degree crime is
irrelevant to our analysis. The PTI process is "not designed to assess the weight
of the State's case." Nwobu, 139 N.J. at 252. The administration of the PTI
program should not base acceptance upon the weight of the evidence of guilt,
but the crimes charged. Ibid.