NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-1121-18T4

 A-1122-18T4

 A-1123-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAMUEL W. CHEN,

Defendant-Appellant.

________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COLIN P. QUINN,

Defendant-Appellant.

_________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL T. SANTITORO,

Defendant-Appellant.

_________________________

APPROVED FOR PUBLICATION

November 24, 2020

APPELLATE DIVISION
2

A-1121-18T4

Argued October 1, 2020 – Decided

Before Judges Sumners, Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Middlesex County, Accusation Nos. 17-04-0261, 17-

04-0263, and 17-04-0262.

Alan L. Zegas, argued the cause for appellants (Law 

Offices of Alan L. Zegas; Alan L. Zegas, of counsel and 

on the briefs; Joshua M. Nahum, on the briefs).

Nancy A. Hulett, Assistant Prosecutor, argued the cause 

for respondents (Yolanda Ciccone, Middlesex County 

Prosecutor; Nancy A. Hulett, of counsel and on the 

brief).

The opinion of the court was delivered by 

SUMNERS, JR., J.A.D.

These consolidated appeals require us to determine whether the State can 

deny defendants' admission into the pretrial intervention program (PTI or 

program), N.J.S.A. 2C:43-12, after they spurned the State's offer to consider 

admission if they agreed to serve time in jail; defendants had all been released 

on their own recognizance (ROR). 

Defendants Samuel W. Chen, Colin P. Quinn, and Michael T. Santitoro

were each indicted on one count of third-degree arson, N.J.S.A. 2C:17-1(b)(2), 

for starting a fire in a garbage disposal bin. Unbeknownst to them, it contained

a propane tank, resulting in an explosion causing significant damage to 

November 24, 2020
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numerous cars and a fence. Over the ensuing four months, defendants refused 

the Middlesex County Prosecutor's Office's (Prosecutor's Office) proposal that 

their PTI applications include an agreement to serve time in jail. Thereafter, on 

the same grounds, the Prosecutor's Office separately advised each defendant that 

their PTI applications were denied based upon factors set forth in N.J.S.A. 

2C:43-12. Defendants subsequently entered into plea agreements in which they 

pled guilty to amended charges of third-degree criminal mischief, N.J.S.A. 

2C:17-3. They each were sentenced to a four-year term of noncustodial 

probation. 

Pursuing rights preserved in their plea agreements, defendants 

unsuccessfully appealed their PTI rejections to the Law Division. The court 

determined defendants did not establish by clear and convincing evidence that 

the Prosecutor's Office's refusal to admit them into PTI was "a patent and gross 

abuse of discretion or arbitrary and irrational."

Before us, defendants jointly argue:

POINT I 

THE TRIAL JUDGE ERRED IN FAILING TO 

DIRECT THE DEFENDANTS' ADMISSION INTO 

PTI BECAUSE THE PROSECUTOR'S 

REQUIREMENT OF AN ILLEGAL CONDITION 

WAS A PATENT AND GROSS ABUSE OF 

DISCRETION. 
4

A-1121-18T4

POINT II

THE TRIAL JUDGE ERRED IN FAILING TO 

DIRECT THE DEFENDANTS' ADMISSION INTO 

PTI BECAUSE THE PROSECUTOR'S 

EVALUATION OF THE RELEVANT STATUTORY 

FACTORS DEMONSTRATES THAT THE DENIAL 

WAS A PATENT AND GROSS ABUSE OF 

DISCRETION. 

A. The PTI Determination Is Invalid Because the

Prosecutor Improperly Focused on the Nature of 

the Offense. 

B. The Prosecutor's Office's PTI Determination 

Is Invalid Because It Failed to Treat the 

Defendants as Individuals. 

We reverse. The Prosecutor's Office abused its discretion by tainting the 

PTI application process when it required defendants to agree to serve jail time 

as a means to gain admission. Imposing the condition of jail time for PTI 

admission is not expressly permitted or prohibited in N.J.S.A. 2C:43-12, Rule

3:28, or the PTI Guidelines. We conclude, however, it is illegal because to vest 

such authority to the Prosecutor's Office would give it powers contrary to the 

Legislature's intent in creating the program. Accordingly, the trial court shall 

enter orders vacating defendants' guilty pleas and admitting them into PTI.

I.

The Fire
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A-1121-18T4

On November 19, 2016, recently graduated Rutgers University students 

Quinn and Santitoro, while under the influence of alcohol, took a textbook and 

set it on fire in a dumpster in the rear parking lot of their New Brunswick

fraternity house.

1

 Quinn then lit a mattress that was in the dumpster. Chen, a 

member of the same fraternity and also a recent Rutgers University graduate,

who had been drinking, joined the mischief by throwing pieces of drywall into 

the fire with Quinn and Santitoro. 

The fire caused a propane tank concealed underneath the mattress to 

explode, resulting in burns to Quinn and Chen. After an unsuccessful attempt

to put out the fire with a bucket of water, defendants fled. The fire spread, 

damaging the fraternity house fence and nine vehicles in the fraternity house 

parking lot and an adjacent parking lot. The fire department responded to the 

scene and extinguished the fire. 

The Prosecution

The day of the fire, each defendant was charged with one count of thirddegree arson, N.J.S.A. 2C:17-1(b)(1), and one count of conspiracy to commit 

arson, N.J.S.A. 2C:5-2(a)(1). They subsequently applied for PTI. On February 

1 Based on the record provided, it is unclear which defendant set the textbook 

on fire. 
6

A-1121-18T4

14, 2017, the Middlesex County Probation Department recommended to the 

Prosecutor's Office that defendants' applications be approved. Defendants had 

no juvenile or adult criminal history and were gainfully employed. 

The Prosecutor's Office, however, did not agree. In initial discussions, 

according to Quinn's counsel's2 March 7 letter to the negotiating assistant 

prosecutor, defendants were advised they could be admitted into PTI if they 

served 180 days in county jail by agreeing to revoke their ROR status. 

Defendants counter-proposed performing 150 hours each of community service

related to the offense such as working with victims of fires and volunteering 

with fire departments.

In a March 10 letter addressing concerns raised in a conversation with the 

assistant prosecutor related to the March 7 correspondence, defense counsel 

proposed no jail time if defendants performed community service at a prison and 

at one of six specified hospitals. 

2

 Throughout the negotiations regarding defendants' PTI applications, Quinn's 

counsel, on behalf of all defendants, took the lead in corresponding with the 

Prosecutor's Office to confirm discussions and advance counter-proposals. 

Hereinafter, references to defense counsel denotes Quinn's counsel.
7

A-1121-18T4

The assistant prosecutor rejected defendants' counter-offer but advised his 

office would sign off on PTI if defendants served thirty days in jail and 

performed 150 hours each of community service. 

In an April 3 letter to the First Assistant Prosecutor, defense counsel 

memorialized the Prosecutor's Office's new proposal discussed in a March 20 

meeting: that each defendant serve thirty days in jail, along with performing 150 

hours of community service. Counsel requested reconsideration of the jail time

condition. Additionally, counsel pointed out the difficulty in getting the trial 

court to "implement incarceration . . . where [defendants] pose no flight risk and 

have attended all proceedings in their present ROR status[,]" and in finding "a 

[c]ounty or other prison facility [to] cooperate in this highly unusual approach."

While defendants' PTI applications were pending, the Prosecutor's Office 

presented the charges against them to a grand jury on April 13, 2017, resulting 

in the indictments. 

Two months later, defendants advised the Prosecutor's Office of a 

potential way to satisfy the jail-time condition to gain PTI admission. In a June 

9 letter to the First Assistant Prosecutor, counsel proposed downgrading 

defendants' charges to municipal court so they could enter into a weekend jail 

program, such as the Sheriff's Labor Assistance Program or Learning Assistance 
8

A-1121-18T4

Program, and serve fifteen weekends in lieu of serving thirty consecutive days 

in county jail. The Prosecutor's Office rejected the proposal. 

Each defendant was subsequently denied admission into PTI. The 

Prosecutor's Office's July 20 written rejection recited the following factors set 

forth in N.J.S.A. 2C:43-12(e) as weighing strongly against admission:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(7) The needs and interests of the victim and society;

(10) Whether or not the crime is of an assaultive or 

violent nature, whether in the criminal act itself or in 

the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would 

exacerbate the social problem that led to the applicant's 

criminal act;

(14) Whether or not the crime is of such a nature that 

the value of supervisory treatment would be 

outweighed by the public need for prosecution;

(16) Whether or not the applicant's participation in 

pretrial intervention will adversely affect the 

prosecution of codefendants; and

(17) Whether or not the harm done to society by 

abandoning criminal prosecution would outweigh the 

benefits to society from channeling an offender into a 

supervisory treatment program.
9

A-1121-18T4

The letter made no mention of the parties' prior four months of negotiations 

regarding the Prosecutor's Office's demand that defendants serve jail time as a 

condition to enter PTI.

PTI Denial Appeal to Law Division 

Defendants appealed the denial of their PTI applications to the Law 

Division. During argument before the trial judge, defendants contended the 

Prosecutor's Office conditioned their admission into PTI, which was illegal and 

tainted the PTI application process.

The Prosecutor's Office denied defendants' service of jail time was a 

condition for their PTI admission. The assistant prosecutor claimed the jail time 

negotiations "[were] a way for us to get to it from a difficult point, because 

[defendants] didn't meet the conditions for PTI. They didn't meet them from the 

beginning." The assistant prosecutor further asserted that jail time negotiations 

were "irrelevant," yet "a creative way maybe to resolve a problem," and that jail 

time "was not some quid pro quo" to get into PTI. 

The parties also disputed the soundness of the reasons stated by the 

Prosecutor's Office in denying defendants' PTI applications; the Prosecutor's 

Office contended it looked at the totality of the offense in which defendants 

recklessly started a fire in a populated area and left the scene.
10 A-1121-18T4

On February 26, 2018, the judge executed separate orders, together with 

separate but similar written decisions, denying each defendant's appeal. As to 

each defendant, the judge wrote:

While it may have been inappropriate for the State to 

suggest that the State would more favorably consider 

[d]efendants' PTI applications if [d]efendants served 

time in the county jail, the issue before the [c]ourt 

remains whether or not [d]efendants clearly and 

convincingly established that the [State's] decision to 

deny PTI constituted a patent and gross abuse of 

discretion.

The judge ruled defendants did not meet their burden of proving the 

Prosecutor's Office's denial of their PTI applications was a patent and gross 

abuse of discretion, and detailed the reasonableness of the N.J.S.A. 2C:43-12(e)

factors the Prosecutor's Office applied in reaching its decisions. The judge 

concluded:

[T]he [c]ourt "does not have the authority in PTI 

matters to substitute [its] discretion for that of the 

prosecutor." State v. Von Smith, 177 N.J. Super. 203, 

208 (App. Div. 1980). 

[T]he State considered all of the relevant factors 

in its decision to deny [d]efendants['] PTI application .

. . . The [c]ourt finds that the State did not make a clear 

error in judgment, such that remand is required. Nor 

did the State's decision to not admit [d]efendant into 

PTI clearly subvert the goals underlying the program.
11 A-1121-18T4

II.

We begin with the understanding that "PTI is a 'diversionary program 

through which certain offenders are able to avoid criminal prosecution by 

receiving early rehabilitative services expected to deter future criminal 

behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. 

Nwobu, 139 N.J. 236, 240 (1995)). PTI programs are governed both by statute 

and court rule, which "generally mirror[] each other." Ibid. (citation omitted). 

The criteria for admission to PTI, as well as the procedures concerning 

applications for admission to the program, are set forth in N.J.S.A. 2C:43-12 to 

-13 (the PTI statute). At the time of defendants' applications, Rule 3:28 and the 

corresponding "Guidelines for Operation of Pretrial Intervention in New Jersey"

(PTI Guidelines) also governed PTI applications. See RSI Bank v. Providence 

Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4 (2018) (Rule 3:28 and PTI Guidelines 

repealed and replaced effective July 1, 2018, by Rule 3:28-1 to -10). 

The PTI statute prescribes a non-exclusive list of seventeen criteria a 

prosecutor must consider in determining a defendant's admission into the 

program. N.J.S.A. 2C:43-12(e). This "include[s] 'the details of the case, 

defendant's motives, age, past criminal record, standing in the community, and 
12 A-1121-18T4

employment performance[.]'" Roseman, 221 N.J. at 621 (second alteration in 

original) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). 

A prosecutor's PTI decision must be "an individualized assessment of the 

defendant considering his or her 'amenability to correction' and potential 

'responsiveness to rehabilitation.'" Id. at 621-22 (quoting Watkins, 193 N.J. at

520). Whether to permit a defendant's diversion to PTI "is a quintessentially 

prosecutorial function[,]" State v. Wallace, 146 N.J. 576, 582 (1996), and our 

review of a PTI rejection is "severely limited[,]" State v. Negran, 178 N.J. 73, 

82 (2003). "Prosecutorial discretion in this context is critical for two reasons. 

First, because it is the fundamental responsibility of the prosecutor to decide 

whom to prosecute, and second, because it is a primary purpose of PTI to 

augment, not diminish, a prosecutor's options." Nwobu, 139 N.J. at 246 (quoting 

State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Prosecutors are 

therefore afforded "broad discretion" to decide whether to divert a defendant 

into PTI. State v. K.S., 220 N.J. 190, 199 (2015). An appellate court reviews a 

prosecutor's PTI decision through the lens of "enhanced deference." State v. 

Brooks, 175 N.J. 215, 225 (2002).

Nonetheless, a prosecutor's decision is subject to judicial review. In order 

"to overturn a prosecutor's decision to exclude a defendant from the program, 
13 A-1121-18T4

the defendant must 'clearly and convincingly' show that the decision was a 

'patent and gross abuse of . . . discretion.'" K.S., 220 N.J. at 200 (quoting 

Wallace, 146 N.J. at 582)." A patent and gross abuse of discretion is defined as 

a decision that 'has gone so wide of the mark sought to be accomplished by PTI 

that fundamental fairness and justice require judicial intervention.'" Watkins, 

193 N.J. at 520 (citation omitted). A prosecutor's abuse of discretion requires a 

defendant to show that admission into PTI was denied because it:

[(a)] [was not premised upon a] consider[ation of] all 

relevant factors, [(b)] was based on irrelevant or 

inappropriate factors, or [(c)] constituted a "clear error 

in judgment." Additionally, an abuse of discretion is 

"patent and gross," if it is shown "that the prosecutorial 

error complained of will clearly subvert the goals 

underlying Pretrial Intervention."

[Nwobu, 139 N.J. at 247 (quoting State v. Bender, 80 

N.J. 84, 93 (1979)).]

 III. 

PTI statutes and court rules regarding the criteria for admission make no 

mention of a prosecutor's authority to require a defendant to serve jail time as a 

condition to be admitted into the program. N.J.S.A. 2C:43-12 and -13; Rule

3:28. Where statutory language is not clear, "we may turn to extrinsic evidence." 

State v. Frank, 445 N.J. Super. 98, 105 (App. Div. 2016) (citing In re Kollman, 

210 N.J. 557, 568 (2012)). "[L]egislative history is examined where the statute's 
14 A-1121-18T4

plain language is unclear or can be given 'more than one possible meaning[.]'" 

Id. at 105-06 (quoting Marino v. Marino, 200 N.J. 315, 329 (2009)). "When all 

is said and done[,] the matter of statutory construction . . . will not justly turn 

on literalisms, technisms or the so-called formal rules of interpretation; it will 

justly turn on the breadth of the objectives of the legislation and the 

commonsen[s]e of the situation." Jersey City Chapter of Prop. Owner's 

Protective Ass'n v. City Council of Jersey City, 55 N.J. 86, 100 (1969).

Before determining the legislative objectives of PTI, we must first address 

defendants' argument that the Prosecutor's Office conditioned PTI admission on 

their consent to serve jail time. The court chose not to address this issue, opining 

that it was only necessary to decide whether the Prosecutor's Office properly 

applied the PTI statute. We disagree.

The Prosecutor's Office contends it did not believe defendants were 

appropriate for PTI based on the offenses, and that some jail time was 

appropriate despite defendants' efforts to strike a balance that did not require it.

In support of the claim, the Prosecutor's Office conceded at oral argument before 

us that admission into PTI conditioned upon jail time was not authorized by law.

The record belies the Prosecutor's Office's position that it did not 

condition defendants' PTI admission upon serving a short jail stint. Serving jail 
15 A-1121-18T4

time was not defendants' offer to gain admission into the program. Before 

formally deciding defendants' PTI applications, the Prosecutor's Office 

proposed that defendants serve some jail time as "a way" to get into PTI, and 

then negotiated with them over the course of four months in an effort to have 

them agree. 

The Prosecutor's Office's contention that defendants were not candidates

for PTI is illogical considering its attempts to get them to agree to serve jail time

as part of its negotiations with defendants regarding their admission. It was only 

after defendants rejected the jail proposals of 180 days, and then thirty days, 

followed by the First Assistant Prosecutor's refusal to downgrade the indicted 

charges to municipal court to possibly facilitate weekend jail time, that the 

Prosecutor's Office rejected defendants' PTI applications outright. 

Significantly, at no point did the Prosecutor's Office dispute representations in

Quinn counsel's letters that defendants had to serve jail time as a condition for 

PTI admission. Thus, we agree with defendants that serving jail time was a 

condition imposed by the Prosecutor's Office to admit them into PTI.

Turning to the legislative history and language of the PTI statute and Rule

3:28, there is nothing that specifically addresses whether a prosecutor can 

impose the condition of jail time for a defendant's admittance into PTI. That 
16 A-1121-18T4

said, in examining the statutory language and policy goals of PTI, we are 

convinced defendants' PTI admission should not have been conditioned on 

serving jail time. 

N.J.S.A. 2C:43-12(a) sets forth the public policy goals of PTI:

(1) Provide applicants, on an equal basis, with 

opportunities to avoid ordinary prosecution by 

receiving early rehabilitative services or supervision, 

when such services or supervision can reasonably be 

expected to deter future criminal behavior by an 

applicant, and when there is apparent causal connection 

between the offense charged and the rehabilitative or 

supervisory need, without which cause both the alleged 

offense and the need to prosecute might not have 

occurred; or

(2) Provide an alternative to prosecution for applicants 

who might be harmed by the imposition of criminal 

sanctions as presently administered, when such an 

alternative can be expected to serve as sufficient 

sanction to deter criminal conduct; or

(3) Provide a mechanism for permitting the least 

burdensome form of prosecution possible for 

defendants charged with "victimless" offenses, other 

than defendants who were public officers or employees 

charged with offenses that involved or touched their 

office or employment; or

(4) Provide assistance to criminal calendars in order to 

focus expenditure of criminal justice resources on 

matters involving serious criminality and severe 

correctional problems; or
17 A-1121-18T4

(5) Provide deterrence of future criminal or disorderly 

behavior by an applicant in a program of supervisory

treatment. 

The same policy goals are expressed in PTI Guideline 1. Guidelines for 

Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current 

N.J. Court Rules, Guideline 1, following R. 3:28 at 1233 (2017). Guideline 1(b) 

mirrored the language of N.J.S.A. 2C:43-12(a)(2), and its commentary,

"recognizes that diversion in appropriate circumstances can serve as sufficient 

sanction to deter future criminal conduct." Ibid.

Our case law is further instructive on the policy goals of PTI. PTI "is 

designed 'to assist in the rehabilitation of worthy defendants, and, in the process, 

to spare them the rigors of the criminal justice system.'" State v. Randall, 414 

N.J. Super. 414, 419 (App. Div. 2010) (quoting Watkins, 193 N.J. at 513). PTI 

is an "alternative to the traditional system of prosecuting and incarcerating 

criminal suspects." State v. Leonardis, 71 N.J. 85, 92 (1976). The program is 

meant to "avoid criminal prosecution." Roseman, 221 N.J. at 621. Although 

not expressly forbidden, it is illogical to conclude that application of these

legislative goals would be furthered by allowing the prosecutor to impose a jail 

term as a condition for PTI admission.
18 A-1121-18T4

Our research reveals one published decision involving jail time as part of 

entry into PTI. In State v. Mosner, 407 N.J. Super. 40, 47 (App. Div. 2009),

the defendant was charged with two fourth-degree criminal offenses and five 

motor vehicle offenses in connection with a hit-and-run snowmobile accident 

that seriously injured a teenage boy. The defendant's PTI application was 

rejected when he refused to plead guilty to the five motor vehicle charges, one

of which required a mandatory 180-day jail term. Id. at 47, 53. After being 

found guilty on all charges, he appealed arguing he was improperly denied 

admittance into PTI. Id. at 48, 53-54. We disagreed, ruling the prosecutor could 

condition defendant's PTI admission on guilty pleas to all the motor vehicle 

offenses to achieve the purpose of the PTI statute. Id. at 57.

Mosner, however, is distinguishable. There, the defendant was required

to plead to a motor vehicle offense that included a mandatory jail term. In this 

case, the Prosecutor 's Office imposed a condition of PTI admission that was not 

based on any determination of guilt. Just as important, the 180-day jail term in 

Mosner was required by statute, whereas here, the condition of jail time was 

arbitrarily set by the Prosecutor's Office without any mandatory statutory 

framework. 
19 A-1121-18T4

We do, on the other hand, find guidance in Justice Handler's dissent in 

State v. DeMarco, 107 N.J. 562, 583 (1987). In discussing the prosecutor's 

authority under PTI and legislative intent behind the program, he writes:

This authority encompasses broadly the discretion to 

consider a host of factors bearing on eligibility for PTI. 

This does not, however, include the use of PTI as an 

extension of the penal laws. PTI is an alternative to the 

criminal justice system; it is not a supplement to 

criminal prosecution. This strongly suggests that a 

prosecutor may not use PTI to achieve the ends of 

criminal prosecution that encompass punishment and 

deterrence. It is within this frame of reference that the 

discretion of the prosecutor will permit the imposition 

of conditions on PTI enrollment-if they bear a rational 

relationship to the rehabilitation of diverted offenders. 

This discretion, however, does not enable a prosecutor 

to use PTI as a vehicle for the imposition of discipline 

that is otherwise vested in other governmental and 

regulatory entities.

By imposing jail time as a condition for defendant's PTI admission, the 

Prosecutor's Office is essentially imposing a penal sanction not found in the PTI 

statute or elsewhere, thereby exceeding its legal authority.

Based upon the legislative intent and spirit of PTI to divert a defendant 

who satisfies the criteria articulated in the PTI statute and Rule 3:28 from the 

criminal process, we are convinced the Prosecutor's Office imposed an unlawful 

condition by requiring the service of jail time for defendants' admission into 

PTI. Clearly, the policy goal of avoiding traditional prosecution through PTI 
20 A-1121-18T4

would be subverted by one of the most onerous consequences of all –

incarceration. The Prosecutor's Office had no legal right to impose some form 

of penal punishment as a condition for defendants' admission into PTI.

As mentioned, the Prosecutor's Office acknowledged at argument before 

us that it may not condition a defendant's PTI admission on serving jail time. 

We are unpersuaded, however, by its contention that defendants were never 

appropriate candidates for PTI, given the negotiations seeking to compel

defendants to serve some jail time. Furthermore, the Prosecutor's Office agreed 

to a plea deal in which defendants would serve no jail time but receive probation.

Considering defendants were ROR, the probation department recommended 

their acceptance into PTI, and there was no legal authority to require them to 

serve jail time as a condition to get into PTI, the Prosecutor's Office's denials of 

their applications were tainted. 

Under these circumstances, the Prosecutor's Office patently and grossly 

abused its discretion in denying defendants' PTI entry because they would not 

serve jail time. They should be admitted into the program. Accordingly, it is 

unnecessary to address the Prosecutor's Office's weighing of PTI factors in 

denying defendants' PTI admission. 
21 A-1121-18T4

Reversed and remanded to vacate defendants' guilty pleas and admit them 

into PTI.