NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff State of New Jersey appeals from the September 16, 2015 order that granted the motion of defendant Suzanne Epp to compel entry into the pre-trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12(f). Because we find the prosecutor's decision to deny PTI was not a patent and gross abuse of its discretion, we reverse.

Prior to April 2014, defendant was convicted three times of driving while intoxicated (DWI), N.J.S.A. 39:4-50; the convictions were in 2000, 2005, and 2007. Following the third conviction, defendant's license was suspended for a period of ten years.

Shortly after midnight on April 2, 2014, defendant was stopped by a police officer for crossing over the fog line and then driving on the center double yellow lines. She was charged with driving while her license was suspended (DWS), N.J.S.A. 39:3-40, and received several other traffic summonses. Defendant was thereafter indicted on one count of fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(b).1

Defendant applied for and was rejected admittance into the PTI program. After an appeal of the decision to the Law Division, the matter was remanded for the State to consider the criteria set forth in N.J.S.A. 2C:43-12(e) in assessing defendant's PTI application. As a result, the State addressed the seventeen factors set forth in the PTI statute and again rejected defendant's application. Following defendant's appeal of that decision to the Law Division, the judge found that the State had "failed to consider [defendant] as an individual after two opportunities. All of the reasons provided for the rejection involve the nature of the offense or an element of N.J.S.A. 2C:40-26(b)." Finding a patent and gross abuse of discretion, the judge reversed the prosecutor's decision and admitted defendant into PTI. This appeal followed.

The State argues that the judge erred in ordering defendant's admission into PTI over its objection as the prosecutor followed the judge's direction on remand and assessed each of the statutory criteria prior to making her decision.

Our scope of review of a prosecutor's decision to deny admission to PTI is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). We afford the prosecutor's decision great deference. State v. Wallace, 146 N.J. 576, 582 (1996). A trial judge can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. State v. Kraft, 265 N.J.Super. 106, 112-13 (App. Div. 1993).

We find the judge erred in her ruling that reversed the prosecutor's decision to deny defendant PTI admission. It is not the place of the judge to disagree with the State's decision, but rather the reviewing judge must determine that the prosecutor "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Wallace, supra, 146 N.J. at 583. An abuse of discretion is shown where it can be proven "that the [PTI] denial `(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.'" State v. Lee, 437 N.J.Super. 555, 563 (App. Div. 2014), certif. denied, 222 N.J. 18 (2015) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

In analyzing the statutory criteria, the State found the factors weighed heavily against admission into PTI with only two factors in favor. In assessing whether the harm done to society by abandoning criminal prosecution was greater than the benefits to society in admitting defendant to PTI, the prosecutor stated:

The State also considered defendant's three prior DWI convictions to establish a continuing pattern of anti-social behavior. We disagree with the motion judge's finding that Negran precluded the consideration of the prior convictions as being temporally distant, 178 N.J. at 77. As the Court stated in Negran, an "applicant's past driving record might be relevant in considering the alleged `pattern of anti-social behavior' cited by the State for denying admission to PTI." Id. at 84. The prosecutor noted that defendant had been convicted three times of DWI (two more times than the defendant in Negran) and was seven years into a ten-year suspension from driving. Despite these convictions and lengthy period of license suspension, defendant was not deterred from driving. Defendant did not argue any exigent circumstances existed which might be weighed as a justification for driving while on the revoked list. She simply stated she was going to a store for a cup of coffee.

The Legislature has deemed a violation of driving on the suspended list due to a DWI conviction to be a serious offense with a mandatory minimum sentence of 180 days. We find that the prosecutor's decision to deny PTI to defendant was not a patent and gross abuse of discretion.

Reversed.