NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
In this appeal, we review an April 7, 2010 order that admitted defendant Enver Cenalia into the Pretrial Intervention Program (PTI) over the objection of the Morris County Prosecutor's Office. We reverse.
I.
In January 2008, a Morris County grand jury indicted defendant for third-degree burglary, N.J.S.A. 2C:18-2(a), and third-degree theft, N.J.S.A. 2C:20-3(a). The allegations stem from the June 13, 2007, unauthorized entry into a garage at the Oakwood Village apartment complex in Mount Olive, and the taking of a new 32-inch flat screen television. Defendant was employed as a maintenance worker at Oakwood Village, and had master keys and access to all areas of the complex.
After charges were lodged against him, but before the indictment was filed, defendant sought admission to PTI pursuant to Rule 3:28. Although defendant's application received a favorable recommendation from the criminal division manager, defendant did not obtain the consent of the Morris County Prosecutor's Office. N.J.S.A. 2C:43-12(c). In the first of two challenges to the prosecutor's determination, the Law Division rejected defendant's appeal, indicating that it "cannot find that this decision represents an abuse of discretion nor a patent abuse of discretion."
Thereafter, defendant entered into plea negotiations with the State. These resulted in a plea arrangement by which, in exchange for dismissing the burglary count, defendant would plead guilty to theft, with a prosecutor's promise to recommend a non-custodial sentence. Additionally, the plea form expressly provided, "[defendant] will re-apply for PTI consistent [with] State v. Halm[1]."
True to the plea agreement, defendant filed a motion for reconsideration, again seeking admission into PTI, but now with the burglary charge removed from the calculus. On the date originally scheduled for sentencing, defendant was permitted to begin an ad hoc participation in a "probation-like interlude," with the court deferring its decision on the motion for reconsideration until sometime in the future.2
A month and a half later, the Law Division considered oral argument on the reconsideration motion. The prosecutor continued his objections to defendant's admission into PTI, notwithstanding the dismissal of the burglary charge. In the earlier rejection, the prosecutor had enumerated several reasons for not consenting to defendant's admission to PTI.
First, it believed that defendant's character and attitude demonstrated that he was not amenable to rehabilitation. This was based upon the prosecutor's perception of defendant's lackluster cooperation with the Mount Olive Police Department during its investigation of the television theft. Second, the prosecutor opined that there was "no nexus between the crime committed and the rehabilitation required" because defendant "at no time explained why he committed this crime." Third, the prosecutor believed that there were reasonable inferences from the investigation that defendant had "procured [other] televisions or other property by illegal means before." Defendant had supposedly admitted to stealing items from other tenants' garages, although he was never charged with such offenses. This, according to the prosecutor's compass, pointed to an insufficient basis to conclude that "future criminal behavior will not occur." Fourth, the prosecutor contended that "it was not until after the defendant was presented with the overwhelming and compelling evidence of his guilt that he stated he would repay [the victim] for her television." Fifth, the prosecutor was concerned that the then-pending charges included — by dint of the residential burglary — a virtual home invasion, which implicated heightened concerns about public safety. Finally, although not relying upon its unsubstantiated investigation of defendant's criminal history, which suggested that defendant was subject to several outstanding federal charges, the prosecutor nevertheless mentioned these allegations as part of its formal rejection.
At the time of oral argument of the reconsideration motion, the Law Division stated that defendant "has performed well during the test period of probation," making him "a suitable candidate for PTI." Several months later, the court amplified its determination in writing. After rejecting all of the rationales for rejection advanced by the State, the court held:
The [c]ourt, upon reconsideration of the defendant's application for P.T.I., has determined that when the burglary charge is "stripped away" from the bases given for the prosecutorial objection, the remaining factors are unsustainable. When weighed with the goals underlying P.T.I., and in consideration for the standard to be applied, the State's objection is not sustainable.
This appeal followed.
II.
The Law Division's conclusion that the State did not base its decision to reject a PTI application on appropriate factors is a question of law. State v. Nwobu, 139 N.J. 236, 245-46 (1995). Therefore, an appellate court reviews a motion judge's decision de novo. State v. Hupka, 203 N.J. 222, 231 (2010). "`[A] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" State v. McKeon, 385 N.J.Super. 559, 567 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
We are particularly mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977). Given "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing Nwobu, supra, 139 N.J. at 246). That deference to the prosecutor has been described as "`enhanced' or `extra' in nature." Id. at 82 (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). Consequently, judicial review of a prosecutor's objection to a defendant's admission into PTI is severely limited. Id. at 82; see also Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979); State v. Kraft, 265 N.J.Super. 106, 111 (App. Div. 1993).
Thus, "judicial review is `available to check only the most egregious examples of injustice and unfairness.'" State v. DeMarco, 107 N.J. 562, 566 (1987) (quoting Leonardis, supra, 73 N.J. at 384). Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his discretion." Leonardis, supra, 73 N.J. at 382. In State v. Bender, 80 N.J. 84 (1979), the Court elaborated on the patent and gross abuse of discretion standard:
Ordinarily, an abuse of discretion will be manifest if defendant 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. 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 Pretrial Intervention.
[Ibid. at 93 (citation omitted).]
With these principles in mind, we review the motion court's decision to overturn the prosecutor's rejection of defendant from PTI. Because we find factual support in the record for the reasons underlying defendant's rejection from PTI, we are unable to agree with the Law Division that there was "a patent and gross abuse of discretion." That is especially so because such an abuse of discretion must be established clearly and convincingly.
The elimination of the burglary charge was certainly a factor that the court properly took into account. See Halm, supra, 319 N.J. Super. at 575-78. However, significant evidence remained that the totality of defendant's conduct at the Oakwood Village complex militated against a successful period of diversionary rehabilitation. We, like the Law Division, are not persuaded that defendant's failure to profess culpability is an appropriate consideration for rejection of PTI. See State v. Smith, 92 N.J. 143, 147 (1983). On the other hand, we find little provenance in the law, or in logic, to conclude that a short-term ad hoc test-period of reporting to the probation department bespeaks anything more than defendant's attempt to maintain good behavior while the motion court reflected upon the motion for reconsideration. The fact remains, however, that there were significant other indicia in defendant's background, most significantly his breach of trust in taking property from the tenants he was obliged to serve,3 that militated in favor the prosecutor's legitimate concern about defendant's ultimate amenability to the rehabilitative aspects of PTI. To ignore those signals would undermine the fundamental principle that the decision of whether to divert a defendant from the criminal process lies within the discretion of the prosecutor. Nwobu, supra, 139 N.J. at 246. However well-disposed we may be to defendant's position, neither we nor the Law Division are free to substitute our judgment for that of the prosecutor under our stringent standard of review.
Consequently, we reverse the order under appeal and remand to the Law Division for further proceedings.
Reversed.
