### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A

- 4437

- 18T3

STATE OF NEW JERSEY,

Plaintiff

- Appellant,

v.

EMMET J. RYDER,

Defendant

- Respondent.

_______ _______________ ____

Submitted October 16, 2019

– Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, Law

Division, Hudso n County, Indictment No. 18

- 10

- 0933.

Esther Suarez, Hudson County Prosecutor, attorney for

appellant (Roseanne Sessa, Assistant Prosecutor, of

counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for

respondent (Daniel S. Rockoff, Assistant Deputy Public

Defender, of counsel and on the brief).

PER CURIAM NOT FOR PUBLICATION WITHOUT THE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.

November 1, 20192 A

- 4437

- 18T3

In thi s appeal, the State argues the motion judge e rred in admitting

defendant to pretrial i ntervention (PTI) over the prosecutor's objection and

without requi ring a guilty plea for a second

- degree offense. After careful

consideration, we conclude that the motion judge's decision to override the

prosecutor's objection constituted an abuse of discretion.

The facts are simple. A handgun with a defaced serial number and a

loaded m agazine were found in defendant 's vehicle by a company hired to

r epossess it. During questioning, defendant told police he found the gun about

two weeks earlier and meant to turn it over to them but forgot.

Defendant was indicted and charged with second

- degree unlawful

possessio n of a weapon without a permit, N.J.S .A. 2C:39

- 5(b)(1) , fourth

- degree

possession of a prohibited weapon and device

, N.J.S.A. 2C:39

- 3 ( d), and fourth

degree p ossession of hollow nose bullets, N.J.S.A. 2C:39

- 3 ( f )(1).

Defendant applied for entry into PTI

. The criminal division manager's

office r ecommended acceptance , but the prosecutor expressed disagreement

,

prompting defendant to seek relief in the trial court. In an oral opinion, the

judge granted defendant's motion and ordered PTI enrollment. T he motion

judge also sta yed the order pendi ng appeal

.3 A

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In appe al ing , the State argues that the motion judge erred in ordering PTI

admission over the prosecutor's objection and by permitting PTI admission

without a guilty plea. Because we agree with the State's first point, we need not

reach the seco nd.

Deciding to admit a defendant into PTI is a "quintess entially prosecutorial

function, " State v. Roseman

, 221 N.J. 611, 624 (2015)

, which must be afforded

"extreme deference," State v. Nwobu

, 139 N.J. 236

, 246 (1995). The prosecutor

is statutorily charged with conducting a n "individualized assessment

, " Roseman

,

221 N.J. at 621, of the defendant's "amenability to correction" and potential

" r esponsiveness to rehabilitation, " State v. Watkins

, 193 N.J. 507, 520 (2008)

(quoting N.J.S.A. 2C:4 3

- 12(b)), through a consideration of N.J.S.A. 2C:43

- 12 's

factors

. The prosecutor's written statement when opposing admission facilitates

judicial review, assists in evaluating program success, allows defendants an

opportunity to respond, and dispels suspicions of arbitrariness. State v. Negran

,

178 N.J. 73, 82 (2003). The prosecutor's statement must be specific enough to

give the defendant a "meanin gful opportunity" to argue the prosecutor's position

is unfounded. Nwobu

, 139 N.J. at 249

.

The prosecutor objected to defendant's admission into PTI on the basis of

four o f the statutory factors : the nature of the offense; the fa cts of the case; a4 A

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continuing pattern of antisocial behavior; and the balancing of the costs and

benefits regarding potential societal harm

. N.J.S.A. 2C:43

- 12( e ) (1) , ( 2 ), ( 8 ),

and ( 17 ). In support of the first, second, and fourth of these cited factors, t he

prosecutor assert ed that defendant had "possession of a black colored handgun

and a loaded magazine" in the trunk of his vehicle, that a serial number was

defaced, and that defendant la cked a permit to possess the weapon. To support

the third factor c ited, the prosecutor referred to defendant's various motor

vehicle infractions and a thirty

- five

- year

- old disorderly persons conviction. In

obj ecting, the prosecutor invoked the State's " obligation to prosecute gun

crimes" and cited in particular the obvi ous dangers presented by an individual's

possession of a loaded weapon in a motor vehicle.

To convince a court to override the prosecutor's position, a n accused must

"clearly and convincingly " show that the refusal was " based on a patent and

gross abuse of

. . . discretion. " State v. Wallace

, 146 N. J. 576, 582 (1996)

. Such

an a buse of discretion occurs when it can be shown that the " 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 ." Id. at 583

. To rise to th e level of patent and gross, the

accused must show that the decision to deny adm ission "will clearly subvert5 A

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[PTI's] goals

, " Roseman

, 221 N.J. at 625

, and "has gone so wide of the mark " of

PTI's goals " that fundamental fairness and justic e require judicial intervention, "

Watkins

, 193 N.J. at 520

.

In ordering defendant enrolled in PTI over the prosecutor's o bjection, the

motion judge referred to the applicable legal authorities and recognized that the

prosecutor's decision was owed great deference

, particularly when considering

the presumpt ion against admission for second

- degree crimes and the application

of the patent an d gross standard

. The judge noted that she believed the

prosecutor's statement of rea sons to be a mere list of facts and that the

prosecutor's assertion of a continuing pattern of anti social behavior was

erroneous because of the many y ears that had elapsed since defendant's

disorderly persons conviction

. The judge also stated that she "fe[lt] " all

" relevant factors may not have been considered " and that some that were

considered factors were "not appropriate

. "

We con clude that the judge erred by not giving the p rosecutor's position

sufficient de ference and by discounting the factors on which the prosecutor

relied

. For example, there is a presumption against PTI admission when a

defendant fa ce s a second

- degree offense

. N.J.S.A. 2C:43

- 12(g)(3); R. 3:28

-

5(b)(2). T o be sure, this fact can be overcome by showing that the defendant6 A

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would be amenable to the rehabilitative process, when there are compelling

reasons justifying admission, and when rejection of the defendant's PTI

application would otherwise be "arbitrary and unreasonable," State v. Coursey

,

445 N.J. Super. 506, 510 (App. Div. 2016), but, even then, societal interests may

still justify denial

, State v. Waters

, 439 N.J. Super. 215, 227 (App

. Div. 2015).

The State argues that public policy militates against PTI because of " the

strong interest " in deterring individuals from possessing "loaded weapons . . .

without permits," and that the public is better served when such matters are

adjudicated through prosecution. We agree with the State that this is a

compelling factor that fully supported the prosecutor's position. It may be, as

defendant persuasively argues and as the motion judge determined, that factor

seventeen

– the pattern of continuing antisocial behavior

, N.J.S.A. 2C:43

-

12(e)(8)

– might not have been applicable or certainly should not have been

given much weight due to the lengthy passage of time since defendant's prior

conviction

. See State v. K .S. , 220 N

. J

. 190

, 201 (2015 )

. E ven if this factor was

remo ved from the calculus, the prosecutor's basis for objecting was entitled to

considerable de ference because of the particular threat to society caused by

handguns

. The allegations here are that d efendant lacked a permit to possess a

handgun, he knew he sho uld not have been in possession of the handgun

– as he7 A

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demonstrated when stating he meant to turn the weapon in but "forgot"

– and

yet he kept the loaded weapon in his vehicle. Indeed, the handgun had a defaced

serial number and was not only loaded but lo aded with hollow point bullets. The

prosecutor was fully justified in objecting to PTI enrollment and the judge

mistakenly failed to give the prosecutor's position sufficient deference.

Reversed.