### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. TAYLOR DOE , 1
Defendant

- Appellant.

_______________________

Submitted June 4, 2020

– Decided July 1 3 , 2020 Before Judges Alvarez and DeAlmeida On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 17

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- 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

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- 18 (App. Div. June 3, 2020). In this circumstance, defenda nt'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 NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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- 18T4 Charles A. Fiore, Gloucester County Prosecutor, attorney for respo ndent (Alec J. Gutierrez, Assistant Prosecutor, on the brief).
PER CURIAM Defendant Taylor Doe was prosecuted for two separate acts of third

degree criminal mischief, N.J.S.A. 2C:17

- 3, one committed in Camden County on April 8, 2017, at the Trump Nationa l 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
ad dressed in Gloucester County. On January 29, 2018, t he Crimin al Division manager reject ed 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 sta ted
in the PT I director's letter and for the following additional reasons : the application of each statutory factor in relation to defendant , and t he 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 G uidelines were eli minated. Now, m any of their pr e scriptions

-- 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.3 A

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improper disparate treatment . She also contends the rej ection was improperly anchored i n her political views, and that the prosecutor failed to take into

accou nt 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 f airways 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 p rocess 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 restitutio n obligation immediately. Defendant is an accomplished poet, first published at a young age.
T he Criminal Division letter included the following explanation of the discovery of defendant 's involve ment in the Rowan v andalism: "The tips provided personal contact information and also social media that showed her dislike for governm ent (Burning American Flag)." It also noted that during the course of the investigation , a Glassboro Police Department officer viewed a4 A

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number of videos of defendant at poetry re adings 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." I t 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 prosecution s 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 long

term supervision and psychological and substance abuse treatment not available through the PTI program." It concluded that defendant had neither established "compelling reasons justify ing admission nor . . . that a decision against
enrol l ment would be arbitrary and unreasonable[.]" The prosecutor's letter of rejecti o n "agree [ d ] " t he 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 factor s the prosecutor weig hed 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 a5 A

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somewhat puzzling comment, the prosecutor observed that defendant's motivation was "unknown to the P rosecutor 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 bene fit 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,

r ules, 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 decisi on 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:6 A

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THIS COURT SHOULD REVERSE THE DEN IAL 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 cons ider that [defendant] was a victim of childhood sexual assault.
I.
"I n 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. 236,7 A

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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 N wobu , 139 N.J. at 246; State v. He rmann , 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

consen t. ' " 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 considera tion 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 o f will clearl y subvert the goals underlying Pretrial Intervention. [ Id. at 83 (quoting State v. Bender , 80 N.J. 84, 93 (1979))].8 A

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- 18T4 II. In this case, defendant relies on State v. Maldonado , 314 N.J. Super. 53 9 (App. Div. 1998), as support for the position that those charged with the same offenses, who have similar prior personal histor ies , 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 conten tion that the denial was imp roper because of the Criminal Division office's disagreement with defendant's political views has some merit. It is importan t to society that the criminal justice system not become
an instrument for the suppress ion of First Amendment f r eedoms. T he langua ge in the letter referring to the burning of the American flag is troubling . In a different situation, the questionable comments regarding defendant's political

v iews might be more co n sequential

. E very citizen has the right to free speech, including burn ing the American flag as political expression. See Texas v. Johnson , 491 U.S. 397, 41 8

- 20 (1989). The issue here, however, is whether that impermissible outlook was mirrored by the prosecutor's rejection, and formed a9 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 we re violated by her conviction for criminal mischief. "[S]peech related to matters of public concern ' occupies the highest rung of the hierarch y of First Amendment values [.]' " Rocci v. Ecole Secondaire
Macdonald

- Cartier , 165 N.J. 149, 156 (2000) ( i nternal quo tations 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 the10 A

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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 princ ipal inquiry in determining content

neutrality

. . . 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 neut ral, "reasonable time, place, or manner restrictions" are appropriate. Clark v. C m ty

. 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 governmenta l interest, and [ ] they leave open ample alternative channels for communication

. . . . Ibid. [ Vawter , 136 N.J. at 68 (alteration in original) ]. Nonetheless, s tate governments may regulate graffiti , for example, to prevent vandalism , although regul atory 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 A MERICAN B AR A SSOCIATION 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

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17/winter/understanding_first_amendment_limitations_government_regulation _artwork/

. The definition of criminal mischief is content ne utral. I t 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. U nfortunately, 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. D efendant cites State v. Briggs , 34 9 N.J. Super. 496 (App. Div. 2002), in support of t he argument , but
t he case involves a murder committed by a spouse who had been physically and

men tally abused by the victim for twenty years. Th e expert opinions found that
defendant suffer ed from post

- traumatic stress disorder. T he record here does not include evidence con nect ing the trauma this defendant suffered to t he criminal conduct.12 A

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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 paten t and gross abuse of discretion. Affirmed.