STATE OF NEW JERSEY v. DELEDIN TWINE

Defendant Deledin Twine appeals from a July 31, 2015 order

denying his application to compel his admission into the pre-trial

intervention (PTI) program over the prosecutor's objection. We

affirm because the Law Division correctly determined that the

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

discretion.

In 2014, defendant was indicted on one count of third-degree

shoplifting, N.J.S.A. 2C:20-11(b). He was also charged with a

disorderly persons offense of possessing a burglary tool, N.J.S.A.

2C:5-5(a). Those charges arose out of events that occurred on

August 9, 2014. A Verizon wireless store reported that an

individual had stolen two cellular phones and fled in a red two

door coupe. Defendant's vehicle was observed in the area, stopped,

and he was placed under arrest. The arresting officer observed

two iPhones and a pair of wire cutters on the front seat of

defendant's vehicle. Defendant was advised of his Miranda1 rights,

waived those rights, and admitted to stealing the cellular phones.

The two stolen cellular phones had a value of over $1300.

Defendant applied for PTI. His initial application was denied

without an interview. He appealed to the Law Division, which

vacated and remanded the matter so that defendant could be

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).







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interviewed. Following his interview, the PTI director

recommended defendant's admission to PTI, but the prosecutor

rejected that recommendation.

The prosecutor based his rejection of defendant's PTI

application on seven factors: (1) defendant's lack of motivation

to successfully complete the program, N.J.S.A. 2C:43-12(e)(3); (2)

Verizon's objection to foregoing prosecution, N.J.S.A. 2C:43

12(e)(4); (3) the needs and interest of the victim and society,

N.J.S.A. 2C:43-12(e)(7); (4 and 5) a pattern of antisocial behavior

and defendant's criminal record, N.J.S.A. 2C:43-12(e)(8) and (9);

and (6 and 7) the public's need for prosecution and the harm done

to society, N.J.S.A. 2C:43-12(e)(14) and (17).

Defendant again appealed to the Law Division and the Law

Division denied his application to compel his admission into the

PTI program. Following the rejection of his PTI application,

defendant pled guilty to third-degree shoplifting. The disorderly

persons offense was dismissed. Defendant was then sentenced to

one year of probation and he was required to do fifty hours of

community service and pay the requisite fines and fees.

On this appeal, defendant argues:

THE PROSECUTOR'S DECISION TO REJECT DEFENDANT'S PTI APPLICATION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE PROSECUTOR FAILED TO CONSIDER ALL RELEVANT FACTORS AND CONSIDERED IRRELEVANT AND







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INAPPROPRIATE FACTORS, SUBVERTING THE GOALS UNDERLYING PTI.



We are not persuaded by this argument.

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. Nwobu, 139 N.J. 236, 240 (1995). The goal

of PTI is to allow, in appropriate situations, defendants to avoid

the potential stigma of a conviction and the State to avoid "the

full criminal justice mechanism of a trial." State v. Bell, 217

N.J. 336, 348 (2014).

PTI is governed by statute and court rule. See N.J.S.A.

2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court

Rules, Guidelines to R. 3:28 (2016). Deciding whether to permit

diversion to PTI "is a quintessentially prosecutorial function."

State v. Wallace, 146 N.J. 576, 582 (1996). "Prosecutorial

discretion in this context is critical for two reasons. First,

because it is the fundamental responsibility of the prosecutor to

decide whom to prosecute, and second, because it is a primary

purpose of PTI to augment, not diminish, a prosecutor's options."

Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J.

Super. 106, 111 (App. Div. 1993)). Accordingly, "prosecutors are

granted broad discretion to determine if a defendant should be







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diverted" to PTI instead of being prosecuted. State v. K.S., 220

N.J. 190, 199 (2015) (citing Wallace, supra, 146 N.J. at 582); see

also State v. Negran, 178 N.J. 73, 82 (2003) (stating that courts

must "allow prosecutors wide latitude").

"Thus, the scope of review is severely limited." Negran,

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

Reviewing courts must accord the prosecutor "extreme deference."

Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J.

Super. at 112); State v. Leonardis, 73 N.J. 360, 381 (1977) ("great

deference should be given to the prosecutor's determination not

to consent to diversion"). To overturn a prosecutor's rejection,

a defendant must "clearly and convincingly establish that the

prosecutor's decision constitutes a patent and gross abuse of

discretion." State v. Watkins, 390 N.J. Super. 302, 305 (App.

Div. 2007), aff'd, 193 N.J. 507 (2008).

"[I]nterference by reviewing courts is reserved for those

cases where needed 'to check [] the "most egregious examples of

injustice and unfairness."'" State v. Lee, 437 N.J. Super. 555,

563 (App. Div. 2014) (quoting Negran, supra, 178 N.J. at 82). We

apply the same standard of review as the Law Division. See State

v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015).

Defendant argues that the rejection of his PTI application

by the prosecutor constituted a patent and gross abuse of







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discretion for three reasons. First, defendant contends that the

prosecutor relied on factors that were not supported by the record.

As previously noted, the prosecutor identified seven of the

seventeen factors that are set forth in N.J.S.A. 2C:43-12(e). In

citing to the seven factors, the prosecutor summarized the facts

supporting each of those factors. Thus, defendant's real argument

is that he disagrees with the prosecutor's assessment of the facts.

For example, defendant contends that the prosecutor misstated his

juvenile and criminal record. The record establishes, however,

that defendant had been adjudicated delinquent as a juvenile. More

tellingly, defendant had also been convicted of a disorderly

persons offense of theft less than a year before he committed the

shoplifting from the Verizon wireless store. Accordingly,

defendant has not demonstrated that the prosecutor engaged in a

patent and gross abuse of discretion in considering the factors

supporting defendant's rejection from PTI.

Defendant also argues that the prosecutor failed to consider

relevant mitigating factors, which included defendant's age,

employment, enrollment in college, and remorse. In rejecting

defendant's PTI application, the prosecutor discussed each of

these mitigating factors, but found that some were not supported

by the record and the prosecutor gave limited weight to the other

mitigating factors. Consequently, defendant has not shown that







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the prosecutor abused his discretion in weighing the mitigating

factors.

Finally, defendant contends that the denial of his

application subverts the goal of PTI because it frustrates his

rehabilitation. In particular, defendant argues that a criminal

record will adversely affect his future employment prospects. Such

consideration is quintessentially committed to the discretion of

the prosecutor in deciding whether or not to allow a particular

defendant into the PTI program.