from channeling defendant into PTI. Additionally, the
court found that the prosecutor properly considered the
fact that codefendant was denied PTI, and the diversion
of this defendant would adversely affect the prosecution
of codefendant.
B. Standard of Review by Courts- Patent and Gross Abuse of Discretion
The prosecutor may be overruled by the trial court
when defendant meets the heavy burden of clearly and
convincingly establishing that the prosecutor acted in an
arbitrary and capricious manner, amounting to a “patent
and gross abuse of discretion.” State v. Wallace, 146 N.J.
at 582; State v. Leonardis, 73 N.J. at 375. The Supreme
Court of New Jersey defined a “patent and gross abuse of
discretion” in State v. Dalglish, 86 N.J. at 509 (citing
State v. Bender, 80 N.J. 84, 93 (1979)), explaining that
a defendant can establish such an abuse if he or she can
show that 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 judgment. For an abuse
of discretion to be “patent and gross,” it must further be
shown that the prosecutorial error complained of will
clearly subvert the goals underlying PTI. Id.
a. ExamplesIn State v. Baynes, 148 N.J. 434, 451 (1997), the
Supreme Court held the prosecutor had failed to consider
all relevant factors when rejecting defendant’s PTI
application based on the nature of the offense (possession
of controlled dangerous substance within a school zone).
Although acknowledging that judicial review of a
prosecutor’s PTI decision is “strictly limited” and that
the State’s decision to reject a PTI application is afforded
great deference, the Court held that the per se denial rule
was a patent and gross abuse of discretion, and affirmed
the decision admitting defendant into PTI.
In State v. Fitzsimmons, 291 N.J. Super. 375, 379-80
(App. Div. 1995), certif. denied, 146 N.J. 568 (1996),
the Appellate Division held that the denial of defendant’s
entry into PTI was a patent and gross abuse of discretion.
Defendant’s crimes were committed when he was just
two months past his 18th birthday; all occurred within
a three-week period; no evidence existed that defendant
was involved in organized, ongoing money-making
enterprise for profit; defendant had no juvenile record;
the offenses were motivated by his severe drug addiction
which began when he was 12 years old; and where the
State eschewed an opportunity to have defendant
examined to determine the bona fides of his assertion of
drug dependency. Id; but see State v. Wallace 146 N.J.
589.In State v. Davis, 244 N.J. Super. 180, 193 (App. Div.
1990), defendant had a legitimate expectation of
admission into PTI after the deputy attorney general in
charge of his case consented and gave valid reasons for
defendant’s admission. In reliance on the State’s
announced decision to admit defendant into PTI,
defendant undertook to fulfill conditions negotiated by
the deputy and defense counsel. It was only a change in
view of a new deputy assigned to defendant’s case that
prevented defendant’s PTI admission. Thus,
defendant’s legitimate expectation of admission into the
program overcame any subsequent decision to revoke his
admission.In State v. Hoffman, 224 N.J. Super. 149 (App. Div.
1988), the Appellate Division held that the State’s
objection to defendant’s diversion into PTI constituted a
patent and gross abuse of discretion. Defendant was
charged with official misconduct and criminal trespass.
These charges arose out of his duties as an officer of the
Special Civil Part of the Superior Court when he entered
a dwelling to recover property under a writ of replevin
which defendant believed to be valid but, in fact, was not
signed by a judge. The court concluded that, considering
the circumstances giving rise to defendant’s offenses and
the likelihood of his responsiveness to rehabilitation,
precluding his admission into PTI would be
counterproductive, ineffective or unwarranted, and
clearly subversive of the underlying PTI goals. Id. at 157.In State v. Lopes, 289 N.J. Super. 460, 481 (Law Div.
1995), the trial court held that the PTI director’s
decision rejecting defendant from admission into PTI,
over the consent of the prosecutor to admit defendant,
constituted a clear error of judgment and an abuse of
discretion. The court held that the director is an agent
of the judiciary, and his or her decision was not entitled
to the enhanced deference accorded to a prosecutor’s
decision.- Simple Abuse of Discretion
A prosecutor’s decision may be classified as a
“simple” abuse of discretion if it was not premised upon
a consideration of all the relevant or appropriate factors,
was premised upon a consideration of irrelevant or
inappropriate factors, or constituted a clear error in
judgment. State v. Caliguiri, 158 N.J. at 37 (citing State