RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3798-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.E.C.,

1

Defendant-Appellant.

________________________

Argued January 3, 2022 – Decided January 21, 2022

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 18-07-

0303.

Robin Kay Lord argued the cause for appellant.

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued 

the cause for respondent (Scott A. Coffina, Burlington 

County Prosecutor, attorney; Jennifer B. Paszkiewicz, 

of counsel and on the brief).

1 We use initials to protect the privacy of the victim, R. 1:38-3(c)(9); N.J.S.A. 

2A:82-46, and to protect the confidentiality of records related to applications for 

enrollment in the pretrial intervention program, R. 1:38-3(c)(5).

NOT FOR PUBLICATION WITHOUT THE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-3798-19

PER CURIAM 

After the trial court denied her motion for admission into the pretrial 

intervention (PTI) program, defendant R.E.C. pled guilty to third-degree child 

endangerment and was sentenced to a noncustodial probationary term. She now 

appeals from a June 2, 2020 judgment of conviction. Because defendant failed 

to demonstrate the prosecutor's rejection of her PTI application represented a 

patent and gross abuse of discretion, see State v. Roseman, 221 N.J. 611, 624-

25 (2015), we affirm.

Evicted from his uncle's home at age fifteen, L.H. began living with 

defendant, a forty-two-year-old educator, who worked at his former grade 

school. Defendant became L.H.'s legal guardian; they developed a close 

relationship; and within a few months, defendant engaged L.H. in various sexual

acts that lasted the better part of a year. Two months after the abuse ended, L.H. 

disclosed defendant's misconduct to the authorities. L.H. said they engaged in 

sexual relations every day when he was between the ages of fifteen and sixteen. 

L.H. was afraid defendant would evict him if he attempted to end their sexual 

relationship. His text message exchanges with defendant – whom L.H. called, 

"Mom," – detailed their sexual acts. In May 2017, defendant was charged in a 

two-count complaint-warrant with second-degree sexual assault, N.J.S.A. 
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2C:14-2(c)(4), and second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-4(a)(1). 

On May 18, 2018, following a pre-indictment conference, the assistant 

prosecutor assigned to the matter sent the following email to defense counsel: 

We have since spoken to the victim and he provided us 

with his thoughts. Without getting into specifics, he is 

cooperative but he also candidly acknowledged all the 

positive things that [defendant] did for him. In that 

regard, he feels sympathies towards her current 

situation. Considering his wishes and in an effort to 

resolve this matter pre-indictment, I would be willing 

to consider admittance into PTI. I would be willing to 

discuss any terms of PTI, however, one condition 

would have to be the forfeiture of her teaching 

credentials. I know that is a big part of her life but I 

think you would agree that there is a very good chance 

of revocation administratively on the merits. All of this 

can be wrapped up and everyone can have closure if 

your client has an interest in achieving that result. I 

believe th[e] matter is scheduled for [grand jury] the 

end of this month . . . . At your convenience, please 

review with your client and let me know if this preindictment proposal is acceptable. 

[(Emphasis added).]

Unwilling to relinquish her teaching credentials, defendant did not apply 

for PTI prior to indictment. In July 2018, defendant was charged in an eightcount Burlington County indictment with two counts each of: first-degree 

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); second-degree sexual 
4 A-3798-19

assault, N.J.S.A. 2C:14-2(c)(4); second-degree sexual assault, N.J.S.A. 2C:14-

2(c)(3)(a); and second-degree endangering the welfare of a child, N.J.S.A. 

2C:24-4(a)(1). 

About six months later, on January 2, 2019, defendant applied for PTI, but 

her application was rejected by the criminal division manager as incomplete for 

failure to file a statement of compelling reasons in view of her first- and seconddegree charges. See R. 3:28-3(b)(1) (requiring "a statement of the extraordinary 

and compelling circumstances that justify consideration of the application 

notwithstanding the presumption of ineligibility based on the nature of the crime 

charged"); see also R. 3:28-1(d)(1) (mandating the prosecutor's consent for 

crimes that carry a presumption of incarceration); N.J.S.A. 2C:44-1(d) 

(generally requiring imprisonment for first- and second-degree offenses). 

Defendant thereafter submitted a two-sentence letter, stating she was 

forty-five years old, had no prior criminal record, was the mother of an adult 

daughter, and had "a long-standing work history." She later submitted a 

supplemental letter, expounding upon her compelling circumstances. 

Emphasizing her life-long dedication to elementary education, defendant 

claimed giving up teaching was "the hardest decision she has ever had to make," 

and she would "do everything in her power to put this isolated incident behind 
5 A-3798-19

her so that she can move forward with her life with her family." Defendant

provided letters attesting to her good character from her mother, sister-in-law, 

and the mother of a former student. 

Upon reviewing defendant's application, the assistant prosecutor 

designated by the Burlington County Prosecutor as PTI director, rejected the 

compelling reasons defendant raised in support of her application and concluded

she failed to overcome the presumption against enrollment. Defendant appealed 

her rejection to the Law Division. Citing the pre-indictment prosecutor's May 

18, 2018 email, defendant argued the prosecutor failed to consider her individual 

characteristics and amenability to rehabilitation. 

Finding the director might not have been aware of the pre-indictment 

negotiations between her colleague and defense counsel, the court was not 

convinced the State had considered all relevant factors. The court therefore 

remanded the matter only for the director to consider those negotiations and the 

victim's position on PTI. See State v. Johnson, 238 N.J. 119, 129 (2019) 

(reiterating a remand is appropriate where, for example, the prosecutor failed to 

consider all relevant factors). 

On June 6, 2019, the director issued an amplified rejection letter, 

specifically addressing the issues raised by defendant. Noting defendant failed 
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to accept the pre-indictment offer, the director found: "Whatever sympathy the 

victim may have had for defendant's position in pre-indictment discussions a 

year ago d[id] not render defendant's background idiosyncratic or unusual." 

Referencing a February 13, 2019 letter2 from the pre-indictment prosecutor to 

defense counsel, the director further stated "the ultimate decision regarding PTI 

was not his to make." The director also confirmed she had "thoroughly reviewed 

the compelling reasons statements and character letters submitted by defendant 

in support of her PTI application." Citing our Supreme Court's decision in State 

v. Nwobu, 139 N.J. 236, 252 (1995), the director concluded defendant failed to 

"demonstrate something extraordinary or unusual, something idiosyncratic in 

[her] background."

The trial court denied defendant's ensuing appeal in a cogent written 

decision. Citing the governing law, the court distinguished defendant's failure 

to accept the State's pre-indictment offer from the prosecutor's revocation of a 

colleague's PTI offer to the defendant in State v. Davis, 244 N.J. Super. 180, 

193-94 (App. Div. 1990) (holding a change in prosecutors did not negate an 

offer by the initial prosecutor, who gave assurances that the defendant would be 

2 The letter was not included in the record on appeal, but defendant does not 

dispute its contents.
7 A-3798-19

admitted to PTI). The court acknowledged defendant's statement of compelling 

reasons and character letters, but found she failed to demonstrate her reasons 

were extraordinary or unusual under Nwobu. Finding the prosecutor's rejection 

of defendant's PTI application did not go "so wide of the mark sought to be 

accomplished by PTI," State v. Wallace, 146 N.J. 576, 583 (1996), the court 

concluded defendant did not clearly and convincingly establish a patent and 

gross abuse of the prosecutor's discretion.

Following her guilty plea to an amended charge of third-degree 

endangering the welfare of a child by non-sexual conduct, N.J.S.A. 2C:24-

4(a)(2), defendant was sentenced to a one-year term of probation. The court 

imposed various conditions, including: forfeiture of public employment and all 

teaching certificates; no contact with L.H.; and an evaluation by a psychologist. 

Because defendant did not admit to any wrongdoing of a sexual nature, her

conviction did not require registration under Megan's Law. This appeal 

followed. 

On appeal, defendant raises the following points for our consideration: 

POINT I

THE TRIAL COURT ERRED IN FINDING THAT 

THE STATE'S REJECTION OF [DEFENDANT]'S 

APPLICATION FOR THE [PTI] PROGRAM WAS 

NOT A PATENT AND GROSS ABUSE OF 
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DISCRETION OR A CLEAR ERROR IN 

JUDGMENT. 

POINT II

THE STATE ARBITRARILY AND CAPRICIOUSLY 

REFUSED TO CONSENT TO CONSIDERATION OF 

[DEFENDANT]'S PTI APPLICATION. 

More particularly, defendant maintains the State improperly withdrew its 

consent to her application post-indictment, when the circumstances 

underscoring defendant's amenability to rehabilitation had not changed and the 

victim continued to support diversion. Defendant also argues the State's cursory 

rejection letter failed to include a consideration of her compelling reasons 

pursuant to the relevant factors set forth in N.J.S.A. 2C:43-12(e), and gave 

undue weight to the nature of the offense.3

 

Having reviewed the record in view of the governing law and our 

"severely limited" scope of review, State v. Negran, 178 N.J. 73, 82 (2003), we 

conclude, as did the trial court, the director's decision was not a patent and gross 

abuse of discretion or "so wide of the mark sought to be accomplished by PTI," 

Wallace, 146 N.J. at 583, that would otherwise require our intervention. See

3 As part of her appendix on appeal, defendant included three character letters 

and a psychological evaluation that were submitted to the sentencing court, but 

not presented to the PTI court. As such, these materials are inappropriate for 

consideration on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014). 
9 A-3798-19

State v. K.S., 220 N.J. 190, 199 (2015) (recognizing courts afford prosecutors 

"broad discretion" in determining whether to divert a defendant to PTI). Instead, 

the director on remand considered the relevant factors and determined defendant 

failed to sustain her burden of demonstrating compelling reasons for PTI. We 

affirm primarily for the reasons stated by the trial court, adding the following 

comments. 

Although the trial court did not specifically address the prosecutor's 

consideration of L.H.'s consent to diversion, we are persuaded the director 

reasonably rejected the "victim's sympathies toward defendant." As the State 

correctly notes, the victim's position on PTI admission should be considered, R.

3:28-4(c), but "it is not dispositive," RSI Bank v. Providence Mut. Fire Ins. Co. ̧ 

234 N.J. 459, 476 (2018). The victim's position is particularly precarious in this 

case, where defendant was L.H.'s legal guardian and mother-figure, who 

betrayed his trust and breached her duty of care. Indeed, L.H. feared ending 

their sexual relationship would subject him to eviction by yet another caregiver. 

It is thus not surprising that the director found the victim's sympathy for 

defendant did not give rise to anything extraordinary, unusual, or idiosyncratic 

about defendant's background. 
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Nor are we persuaded that the director failed to consider defendant's 

amenability to rehabilitation. Rather, after fully reviewing defendant's 

statement of compelling reasons, including her educational background, 

employment history, and post-arrest enrollment in college, the director was not 

persuaded defendant had overcome the presumption against admission to PTI. 

The record supports the director's assessment. Indeed, defendant's statement of 

reasons focused not on remorse or concern for L.H., but rather on the difficulty

she faced in relinquishing her teaching career and her goal of "moving forward" 

from "this isolated incident." Daily sexual relations with one's teenage ward 

hardly can be considered an "isolated incident." 

We hasten to add, as defendant correctly states, the director's rejection 

letter failed to cite the factors set forth in N.J.S.A. 2C:43-12(e).4

 And we are 

4 "N.J.S.A. 2C:43-12(e) sets forth a list of seventeen nonexclusive factors that 

prosecutors must consider in connection with a PTI application." Johnson, 238 

N.J. at 128; see also R. 3:28-4 (incorporating these factors and providing for the 

consideration of certain additional factors, including the victim's position under 

paragraph (c)). Further, effective July 1, 2018, "following changes to Rule

3:28," the PTI "Guidelines were eliminated. Now, many of their prescriptions 

– with significant variations – are contained in Rules 3:28-1 to -10." Johnson, 

238 N.J. at 128. Although defendant filed her PTI application after the rule 

change, the parties' briefs reference the Guidelines. We nonetheless find no 

reason to remand because the reasons cited in the court's decision, the record 

provided, and the parties' arguments permit us to consider the issues raised on 

appeal.
11 A-3798-19

not persuaded by the State's contention that the prosecutor need not "formally" 

consider these factors "unless the State first finds compelling reasons 

overcoming the presumption against enrollment." Notably, the State cites no 

authority for its position, and we are aware of none. The State's review of a 

defendant's statement of compelling reasons should include an assessment of the 

factors set forth in Rule 3:28-4 and N.J.S.A. 2C:43-12(e), and its written 

decision should reference those factors. As noted, however, in this case we are 

satisfied the director considered the applicable factors, and defendant failed to 

demonstrate compelling reasons for PTI. 

To the extent not addressed, defendant's remaining contentions lack 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). 

Affirmed.