STATE OF NEW JERSEY v. SHAKERA S. LOWMAN

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                                NOT FOR PUBLICATION WITHOUT THE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-0695-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAKERA S. LOWMAN,

     Defendant-Appellant.
________________________

                   Submitted on March 14, 2022 – Decided March 21, 2022

                   Before Judges Sabatino and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 15-04-0297.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Morgan A. Birck, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   James O. Tansey, First Assistant Prosecutor of Union
                   County, attorney for respondent (Joseph M. Nielsen,
                   Assistant Prosecutor, of counsel and on the brief.)

PER CURIAM
      Defendant Shakera S. Lowman appeals from an August 8, 2019 judgment

of conviction for endangering the welfare of a child by caretaker, N.J.S.A.

2C:24:4(a), after her termination from a Pretrial Intervention (PTI) program.

Defendant's appeal focuses on a January 10, 2019 order denying her motion for

reinstatement to PTI. We affirm.

      Defendant was arrested in 2014 after being found drunk and asleep at the

wheel with two minor children in the back seat of her car. Defendant imbibed

in excessive amounts of alcohol after learning her cousin, with whom defendant

lived, had been murdered. When a police officer approached defendant's car, he

discovered the children were not wearing seat belts and found an open bottle of

alcohol in the center console cupholder. After the officer shouted and knocked

on the car window to wake defendant, the officer smelled alcohol on her breath.

Defendant was unable to successfully perform the field sobriety tests

administered by the officer.

      Defendant was arrested and taken to police headquarters. At the police

station, defendant refused to cooperate, cursed at the officers, and struck one

officer with her elbow.

      Defendant was indicted on two counts of second-degree endangering the

welfare of a child by a caretaker,  N.J.S.A. 2C:24-4(a) and one count of fourth-


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degree aggravated assault on a police officer,  N.J.S.A. 2C:12-1(b)(5). After

pleading guilty to the child endangerment charges and driving while intoxicated,

she was admitted into a PTI program for a three-year period. In conjunction

with her admission to PTI, defendant agreed to the following: notifying her

probation officer of any address change; reporting to her probation officer as

scheduled; maintaining employment; performing sixty hours of community

service; paying a $125 fine; and cooperating in any recommended testing,

treatment, or counseling. Defendant also acknowledged failure to successfully

complete the PTI requirements would result in the State seeking a three-year

term of imprisonment on the original charges.

      Defendant failed to meet the PTI program's requirements for reporting to

probation, attending scheduled appointments, performing community service,

and paying all fines. Defendant's probation officer issued a violation notice and

a termination hearing was scheduled for January 6, 2017. Because defendant

failed to appear at the hearing, she was terminated from the PTI program, and

the judge issued a bench warrant.

      Defendant attempted to file a motion for reinstatement to PTI in June

2017. However, the application was dismissed based on defendant's failure to




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submit a supporting brief. Defendant refiled a motion for reinstatement to PTI

in March 2018.

      The motion judge took testimony over three non-consecutive days

between August and November 2018. Defendant, her probation officer, and an

addiction counselor who participated in defendant's substance abuse evaluation

testified at the hearing. While the reinstatement motion was pending, the State

offered defendant an opportunity to re-plead to reduced charges of child abuse

and neglect that would have resulted in a non-custodial probationary sentence.

Defendant declined the plea offer.

      Defendant's probation officer provided the following testimony during the

motion hearings. According to the probation officer, defendant failed to report

to scheduled meetings on five occasions in 2016, failed to complete any of her

community service hours, and failed to pay the $125 fine. Defendant was placed

into a comprehensive enforcement program to ensure her compliance with the

PTI requirements, but she was not successful in the program.        Defendant

received a warning letter from the probation officer about possible termination

from PTI. Despite the warning letter, defendant did not comply with her PTI

requirements.




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      The probation officer told the judge all written notices, including the

violation notice, were sent to a Union Township address defendant provided.

However, the notice scheduling the PTI termination hearing sent to that address

came back as undeliverable. Defendant told the probation officer she lived at

two different addresses: her Union Township address and her mother's address.

Defendant mentioned she might move to Jersey City but never provided an

updated address to her probation officer. When the probation officer telephoned

defendant to discuss termination of PTI, defendant cursed, used abusive

language, and abruptly terminated the conversations.

      A substance abuse counselor testified regarding defendant's substance

abuse evaluation. While defendant tested negative for drugs and alcohol, the

counselor recommended defendant attend a preventive intervention program to

prevent any relapse.    Defendant declined to participate the recommended

program.

      Defendant also testified.    She explained her interactions with the

probation officer, including updating her mailing address.       According to

defendant, she did not receive a hearing notice regarding termination of PTI.

Defendant also believed a negative test as part of a substance abuse evaluation

would not require her participation in any preventative intervention education


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program. While defendant admitted not completing any community service

hours, she claimed she was turned away from the community service location

and reported the situation to her probation officer. Defendant also conceded she

was rude to her probation officer and failed to pay the court ordered fine.

      After considering the testimony of the witnesses, reviewing the exhibits

and briefs submitted, and hearing the arguments of counsel, in a January 10,

2019 order and attached written decision, the motion judge denied defendant's

motion, finding defendant willfully violated the conditions of PTI and was no

longer a viable candidate. The judge found defendant's testimony not credible

and the testimony of the probation officer credible. In her written decision, the

judge noted numerous inconsistencies in defendant's testimony, resulting in the

judge discrediting defendant's testimony as "unbelievable."

      After being denied reinstatement to PTI, defendant filed a motion to

withdraw her guilty plea. The judge denied the motion, stating "PTI is not just

privilege, it is a gift." The judge sentenced defendant to three years in prison.

      On appeal, defendant raises the following argument:

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            FAILING TO REINSTATE DEFENDANT INTO PTI.

      We review discretionary decisions by a trial court, such as reinstatement

to PTI, for abuse of discretion. State v. R.Y.,  242 N.J. 48, 65 (2020). We will

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reverse discretionary determinations "only when the exercise of discretion was

'manifestly unjust' under the circumstances." Newark Morning Ledger Co. v.

N.J. Sports & Exposition Auth.,  423 N.J. Super. 140, 174 (App. Div. 2011)

(quoting Union Cnty. Improvement Auth. v. Artaki, LLC,  392 N.J. Super. 141,

149 (App. Div. 2007)).

      The traditional patent and gross abuse of discretion standard applicable to

an initial decision regarding admission to PTI "does not govern a court's

discretionary decision on reconsideration to readmit a defendant into PTI." State

v. A.S.-M.,  444 N.J. Super. 334, 346 (App. Div. 2016). The decision to readmit

a defendant to PTI is committed to the sound discretion of the trial court .

 N.J.S.A. 2C:43-12(g). In reviewing a motion for readmission to PTI, the court

must consider whether (1) the defendant willfully violated the conditions of PTI

and (2) the defendant remains a viable candidate for PTI under the original or

modified PTI conditions. A.S.-M.,  444 N.J. Super. at 338-39.

      We also owe deference to factual findings made by trial courts and will

uphold such findings if the record contains sufficient credible evidence . State

v. Reece,  222 N.J. 154, 166 (2015). As a general matter, we "give deference to

those findings of the trial judge which are substantially influenced by his [or

her] opportunity to hear and see the witnesses and to have the 'feel' of the case,


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which a reviewing court cannot enjoy." State v. Locurto,  157 N.J. 463, 471

(1999). We may disregard those findings "only when a trial court's findings of

fact are clearly mistaken." State v. Hubbard,  222 N.J. 249, 262 (2015).

      Defendant argues the judge abused her discretion in denying reinstatement

to PTI. We disagree.

      Defendant contends remaining arrest free since the initial arrest supported

her reinstatement to PTI.     However, not re-offending is just one of the

requirements to maintain admission in a PTI program. Defendant overlooks her

failure to comply with nearly every other condition of PTI, including reporting

to her probation officer, completing community service, and paying the

outstanding fine.

      Further, defendant's contention her negative test for alcohol and drugs

warranted reinstatement to PTI misunderstands the purpose of the evaluation.

The substance abuse counselor recommended defendant participate in an early

intervention program to provide defendant with appropriate coping mechanisms

to avoid dangerous behaviors when confronted with daily stresses and

significant life events. In accepting admission to PTI, defendant agreed to

comply with recommendations made during her PTI supervision.               Here,




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defendant disregarded the recommendation of the substance abuse counselor and

her probation officer by declining to enroll in an early intervention program.

      We also defer to the judge's detailed findings after three days of

testimonial hearings.   In discrediting defendant's testimony as "completely

unbelievable," and relying on the probation officer's credible testimony, the

judge found defendant willfully violated the conditions of PTI.        Based on

defendant's "willful failure, and defendant's rude and disrespectful treatment of

[her probation officer]," the judge concluded defendant was "no longer a viable

candidate for PTI."

      Having reviewed the record, we are satisfied the judge did not abuse her

discretion in denying defendant's motion for reinstatement to PTI. Prior to

admission to PTI, defendant acknowledged the significant consequences if she

failed to comply with all aspects of the program. Admission to a PTI program

is a privilege. Defendant lost her opportunity to avoid incarceration when she

willfully failed to comply with the conditions of PTI.

      Affirmed.




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