RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4693-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAYLOR DOE,

1

Defendant-Appellant.

_______________________

Submitted June 4, 2020 – Decided July 13, 2020

Before Judges Alvarez and DeAlmeida

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 17-10-

0855.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Daniel S. Rockoff, Assistant Deputy Public 

Defender, of counsel and on the brief).

1

 Defendant did not move to proceed under a pseudonym. However, we have 

elected to use one (Taylor Doe) when referring to defendant. See Sonia Doe, a 

Pseudonym v. N.J. Dep't of Corr., No. A-5101-18 (App. Div. June 3, 2020). In 

this circumstance, defendant's privacy interests outweigh the Judiciary's policy 

of transparency. See ABC v. XYZ Corp., 282 N.J. Super. 494, 501-02 (App. 

Div. 1995); see also N.J.S.A. 2A:82-46(b).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-4693-18T4

Charles A. Fiore, Gloucester County Prosecutor, 

attorney for respondent (Alec J. Gutierrez, Assistant 

Prosecutor, on the brief).

PER CURIAM

Defendant Taylor Doe was prosecuted for two separate acts of thirddegree criminal mischief, N.J.S.A. 2C:17-3, one committed in Camden County 

on April 8, 2017, at the Trump National Golf Course, allegedly causing $32,000 

in damages, the other on the Gloucester County Campus of Rowan University, 

allegedly causing $15,341.83 in damages. The matters were consolidated and 

addressed in Gloucester County. On January 29, 2018, the Criminal Division 

manager rejected defendant's pre-trial intervention (PTI) application. See

N.J.S.A. 2C:43-12 and former R. 3:28.2 On February 16, 2018, the Gloucester 

County Prosecutor's Office also rejected the application, for the reasons stated 

in the PTI director's letter and for the following additional reasons: the 

application of each statutory factor in relation to defendant, and the nature of 

the charges. Defendant appeals, claiming that because her co-defendants in 

Camden were admitted into PTI, her exclusion from the program establishes

2

 "Following changes to Rule 3:28, however, the Guidelines were eliminated. 

Now, many of their prescriptions -- with significant variations -- are contained 

in Rules 3:28-1 to -10." State v. Johnson, 238 N.J. 119, 128 (App. Div. 2019). 

The changes went into effect July 1, 2018, months after the argument in this 

case. 
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improper disparate treatment. She also contends the rejection was improperly 

anchored in her political views, and that the prosecutor failed to take into 

account her personal characteristics. For the reasons stated by Judge Robert P. 

Becker, Jr., we affirm. We add the following comments.

In the first incident, defendant and two others spray painted foul language 

on the Trump National Golf Course fairways and putting green. In the second 

incident, while a student at Rowan, defendant spray painted slogans on a 

veteran's memorial, portions of the pavement, and campus police vehicles.

Defendant, a transgender person, when interviewed during the PTI 

application process disclosed a mental health and possible alcohol abuse history. 

She also disclosed sexual victimization as a child and abusive relationships in 

adolescence. Defendant's parents agreed that if she were admitted into PTI, they 

would pay any restitution obligation immediately. Defendant is an 

accomplished poet, first published at a young age.

The Criminal Division letter included the following explanation of the 

discovery of defendant's involvement in the Rowan vandalism: "The tips 

provided personal contact information and also social media that showed her 

dislike for government (Burning American Flag)." It also noted that during the 

course of the investigation, a Glassboro Police Department officer viewed a 
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number of videos of defendant at poetry readings in which she objected to

Rowan's withdrawal of "funding from the office that supports the LGBT 

community . . . . the fact that her friend was arrested during a protest . . . . [and

expressed] distaste for anything that represented the 

government/establishment." It also concluded that the program was designed to 

provide minimal supervision for those charged "with relatively minor 

offenses[,]" and that the amount of damage in these prosecutions made the acts 

"more than relatively minor offenses." After noting defendant was charged with 

"separate planned acts of vandalism[,]" the letter referred to the "need for longterm supervision and psychological and substance abuse treatment not available

through the PTI program." It concluded that defendant had neither established 

"compelling reasons justifying admission nor . . . that a decision against 

enrollment would be arbitrary and unreasonable[.]"

The prosecutor's letter of rejection "agree[d]" the application "should be 

denied for substantially the same reasons [as the Criminal Division]," but 

engaged in a detailed discussion of each statutory factor then in effect. The first 

two factors the prosecutor weighed heavily against admission were the "separate 

instances of third-degree criminal mischief in both Camden and Gloucester 

Counties resulting in severe monetary loss," and the "facts of the case." In a 
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somewhat puzzling comment, the prosecutor observed that defendant's 

motivation was "unknown to the Prosecutor at this point . . . ." He also weighed 

defendant's unique personal characteristics as moderately against admission 

because it seemed "unlikely the program can be tailored to meet her needs." 

Ultimately, the prosecutor concluded any benefit from admission into PTI would 

be offset by harm to society in abandoning criminal prosecution.

Following oral argument on defendant's appeal to the Law Division, the 

court issued a thorough written decision. After canvassing the pertinent statutes, 

rules, and caselaw, the judge found defendant had failed to meet the heavy 

burden of establishing by clear and convincing evidence that rejection from the 

program constituted a patent and gross abuse of prosecutorial discretion. The 

offenses were committed three months apart, caused substantial damage to 

property, and the prosecutor properly assessed each of the seventeen statutory 

factors. The judge opined defendant did not "show[] compelling reasons 

justifying her admission and establishing that a decision against enrollment 

would be arbitrary and unreasonable." He found "no clear error in judgment," 

nor that the failure to admit her into the program would subvert program goals.

Now on appeal, defendant argues:
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POINT I

THIS COURT SHOULD REVERSE THE DENIAL OF 

[DEFENDANT]'S PTI APPLICATION, AND EITHER 

ADMIT [DEFENDANT] INTO PTI, OR REMAND 

FOR A FRESH LOOK. 

1. The Gloucester County Prosecutor and 

Criminal Division Manager failed to consider 

that Camden County admitted [defendant]'s two 

co-defendants into PTI for the same or similar 

acts.

2. The prosecutor's denial of [defendant]'s 

PTI application improperly relied on 

disagreement with [defendant]'s political 

viewpoint, in violation of the First Amendment.

3. The prosecutor's denial of [defendant]'s 

PTI application failed to consider the cost to 

society of using the criminal-justice system to 

chill speech on matters of public concern. 

4. The prosecutor's denial of [defendant]'s 

PTI application failed to consider that 

[defendant] was a victim of childhood sexual 

assault. 

I.

"In respect of 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 State v. Nwobu, 139 N.J. 236, 
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246 (1995)). "Thus, the scope of review is severely limited[,]" in which we 

"check only the ‘most egregious examples of injustice and unfairness.'" Ibid.

(citing Nwobu, 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)) (quoting State v. Leonardis, 

73 N.J. 360, 384 (1977); State v. DeMarco, 107 N.J. 562, 566 (1987)). 

Defendants "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 before 

a court can suspend criminal proceedings under Rule 3:28 without prosecutorial 

consent.'" Ibid. (internal quotations omitted) (quoting Nwobu, 139 N.J. at 246).

A prosecutor's abuse of discretion requires defendant show 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. 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.

[Id. at 83 (quoting State v. Bender, 80 N.J. 84, 93 

(1979))]. 
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II.

In this case, defendant relies on State v. Maldonado, 314 N.J. Super. 539 

(App. Div. 1998), as support for the position that those charged with the same 

offenses, who have similar prior personal histories, must be treated on an equal 

basis. Id. at 544-45. But, in contrast to this case, in Maldonado, the four

defendants were charged with precisely the same offenses. Here, defendant was 

separately charged with an unrelated offense of third-degree criminal mischief 

resulting in substantial monetary loss to a different victim.

III.

Defendant's contention that the denial was improper because of the 

Criminal Division office's disagreement with defendant's political views has 

some merit. It is important to society that the criminal justice system not become 

an instrument for the suppression of First Amendment freedoms. The language 

in the letter referring to the burning of the American flag is troubling. In a 

different situation, the questionable comments regarding defendant's political 

views might be more consequential. Every citizen has the right to free speech, 

including burning the American flag as political expression. See Texas v. 

Johnson, 491 U.S. 397, 418-20 (1989). The issue here, however, is whether that 

impermissible outlook was mirrored by the prosecutor's rejection, and formed a 
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significant element in the denial of defendant's application. We cannot agree 

that it did. 

The prosecutor did by reference adopt the director's letter, however, the 

prosecutor's analysis of the statutory factors made no reference to defendant's 

political beliefs. He instead referred to "[t]he existence of personal problems 

and character traits which may be related to the . . . crime." The reference is to 

defendant's past history and personal problems, not her political views.

Not unsurprisingly, the prosecutor weighed most heavily the fact 

defendant was involved in two separate offenses causing substantial damage. 

This was not a continuing offense, such as a bookkeeper's theft of her employer's 

funds over time—this was two distinct and separate incidents. 

The record also does not support a conclusion that defendant's First 

Amendment rights were violated by her conviction for criminal mischief. 

"[S]peech related to matters of public concern 'occupies the highest rung of the 

hierarchy of First Amendment values [.]'" Rocci v. Ecole Secondaire 

Macdonald-Cartier, 165 N.J. 149, 156 (2000) (internal quotations omitted) 

(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 

(1985). "Such speech ‘requires maximum protection.'" Ibid. (quoting Sisler v. 

Gannett, Co., Inc., 104 N.J. 256, 266 (1986)). If a statute "relate[s] to the 
10 A-4693-18T4

suppression of free expression, [the court] must decide if the statute[] [is] 

content neutral or content based to determine the level of scrutiny . . . [to] apply 

under the First Amendment." State v. Vawter, 136 N.J. 56, 68 (1994). 

"The principal inquiry in determining contentneutrality . . . is whether the government has adopted a 

regulation of speech because of disagreement with the 

message it conveys." Ward v. Rock Against Racism, 

491 U.S. 781, 791 (1989). If a regulation is content 

neutral, "reasonable time, place, or manner restrictions" 

are appropriate. Clark v. Cmty. for Creative Non–

Violence, 468 U.S. 288, 293 (1984). Time, place, or 

manner regulations are reasonable if they are "narrowly 

tailored to serve a significant governmental interest, 

and [ ] they leave open ample alternative channels for 

communication . . . . Ibid.

[Vawter, 136 N.J. at 68 (alteration in original)]. 

Nonetheless, state governments may regulate graffiti, for example, to 

prevent vandalism, although regulatory laws cannot be so narrow as to burden 

speech more than necessary to prevent property damage. See Vincenty v. 

Bloomberg, 476 F.3d 74, 90 (2d Cir. 2007); see also AMERICAN BAR

ASSOCIATION Understanding the First Amend. Limitations on Gov't Reg. of 

Artwork, (Jan. 2, 2017),

https://www.americanbar.org/groups/state_local_government/publications/stat

e_local_law_news/2016-
11 A-4693-18T4

17/winter/understanding_first_amendment_limitations_government_regulation

_artwork/.

The definition of criminal mischief is content neutral. It does not limit 

speech. The State has a legitimate interest in suppressing graffiti where the 

result is property damage as opposed to mere expression of ideas. The 

prosecution here was certainly content neutral. Defendant's rejection from PTI 

because of her involvement in two events, not one, also appears content neutral.

IV.

Finally, defendant contends that the sexual abuse she suffered earlier in 

life presents a compelling reason for admission. Unfortunately, that factor is 

not included in the statutory scheme, nor have we found any case in which that 

history created a compelling reason for admission. Defendant cites State v. 

Briggs, 349 N.J. Super. 496 (App. Div. 2002), in support of the argument, but 

the case involves a murder committed by a spouse who had been physically and 

mentally abused by the victim for twenty years. The expert opinions found that 

defendant suffered from post-traumatic stress disorder. The record here does 

not include evidence connecting the trauma this defendant suffered to the 

criminal conduct. 
12 A-4693-18T4

Therefore, we agree with Judge Becker that defendant failed to meet her 

burden of proving by clear and convincing evidence that the prosecutor's 

rejection of her application was a patent and gross abuse of discretion.

Affirmed.