RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-3301-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v. 

GEORGE DERUGIN, 

 Defendant-Appellant. 

_________________________ 

Argued September 11, 2024 – Decided October 8, 2024 

Before Judges Marczyk and Torregrossa-O'Connor. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 16-06-0809. 

James H. Maynard argued the cause for appellant 

(Maynard Law Office, LLC, attorneys; James H. 

Maynard, on the briefs). 

Edward F. Ray, Assistant Prosecutor, argued the cause 

for respondent (Mark Musella, Bergen County 

Prosecutor, attorney; William P. Miller, Assistant 

Prosecutor, of counsel and on the brief; Catherine A. 

Foddai, Legal Assistant, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-3301-22

Defendant, George Derugin, appeals from the Law Division's May 17, 

2023 order denying without a hearing his petition for post-conviction relief 

(PCR), claiming his defense counsel was ineffective for failing to advise about 

or assist him in applying for the pretrial intervention program (PTI) before he

pled guilty in 2016 to endangering the welfare of a child in distributing child 

pornography. After reviewing the record de novo in consideration of defendant's 

arguments, we affirm, but for reasons different than those expressed by the PCR 

judge. 

I.

We glean the following facts and procedural history from the record. 

A. The Offense, Plea, and Sentencing 

In 2015, police arrested defendant, then age twenty-nine, for soliciting and 

receiving numerous sexual videos and photographs from a ten-year-old child 

depicting the child naked. In return, defendant sent the child sexual images of 

himself. The child's parents discovered their daughter's ongoing sexually 

explicit communications with defendant, a stranger to the family, on an 

application on the child's Kindle device. 

Subsequently, defendant was indicted and charged with first-degree 

endangering the welfare of a child by manufacturing child pornography, 
3 A-3301-22

N.J.S.A. 2C:24-4(b)(3); second-degree endangering the welfare of a child by

distributing child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i); second-degree 

sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare 

of a child, N.J.S.A. 2C:24-4(a)(1). Defendant resided in California. He and his 

mother hired a New Jersey attorney to represent him regarding these offenses. 

Defendant certified, as recommended by his counsel, that he underwent a 

psychological evaluation with Dr. Phillip Witt, Ph.D., and commenced sex 

offender treatment with the Sexually Offending Behaviors Recovery Program 

(SOBR) in California. Defendant also completed a "[t]wo-[w]eek bootcamp" to 

"develop a support network" with others receiving similar therapy and 

participated in Sex Addicts Anonymous. Defendant's mother maintained 

communication with defense counsel, and defendant met with counsel in person 

on four to five occasions and spoke by telephone on several occasions. 

Defendant and his mother both certify there was no discussion with defense 

counsel regarding the possibility of application or admission to PTI prior to 

defendant's plea. 

Defense counsel provided the State evidence of the nature and extent of 

defendant's continued treatment efforts and other mitigating information during 

the plea negotiations. This included Dr. Witt's written evaluation revealing 
4 A-3301-22

"mixed findings." Dr. Witt characterized defendant as "an unusual man" with 

"little sense of direction," which, "combined with his emotional disengagement, 

suggest a relatively schizoid personality style." Although finding this 

"disengaged personality style and lack of drive in any area of his life have clearly 

impaired his functioning, sexually and otherwise," Dr. Witt found defendant's 

lack of social and emotional engagement was also "likely to prevent him from 

engaging in a contact sex offense." He recommended "relapse prevention 

training," "victim empathy exercises," and "individual psychotherapy." 

SOBR's Director described defendant as having "responded very 

positively to therapeutic interventions" and recommended continued outpatient 

therapy. She recommended no incarceration, opining "[defendant] is not a 

pedophile." Her report reflects defendant's perception of his actions, including 

his statement that "[t]he [i]nternet is like a fantasy world, not real. I never had 

any plans to see or touch anyone." 

Counsel's negotiations led the State to offer a plea avoiding the firstdegree manufacturing charge and the second-degree sexual assault charge, 

which threatened sentences between ten and twenty years' and five to ten years' 

incarceration, respectively. Defendant recounts counsel ultimately 

recommended that he accept the State's plea offer, and defendant pled guilty in 
5 A-3301-22

2016 to second-degree endangering the welfare of a child by distribution of child 

pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i), with the requirement of Megan's 

Law registration, N.J.S.A. 2C:7-1 to -23, and other mandatory assessments 

related to that offense. Critically, in exchange for defendant's plea, the State 

agreed to recommend a prison term in the third-degree range, although the State 

clarified it would seek the maximum five years. 

At his plea hearing, defendant admitted that he knowingly distributed 

fewer than twenty-five images of child pornography over several weeks between 

July and August of 2015. Defendant also affirmed the voluntariness of his plea 

and his satisfaction with his defense counsel, which he further confirmed in his 

written plea form. 

After his plea, but before sentencing, defendant's mother sent an email to 

counsel inquiring if a PTI application had been made on her son's behalf and if 

not, why counsel did not pursue this possibility. She recalled speaking to 

defense counsel's associate, who told her, "well you remember what the judge 

said." 

Defense counsel submitted a sentencing memorandum containing 

character attestations and details of defendant's life and treatment, which was 

recognized for its quality by both the sentencing court and the prosecutor. The 
6 A-3301-22

submission contained the evaluation by Dr. Witt and therapeutic reports and 

letters from treatment providers. In those materials, defendant admitted to 

exchanging sexually explicit videos and photographs with the ten-year-old 

child, including videos of the child performing sexual acts and depicting 

defendant engaged in such conduct. 

At the sentencing hearing in 2017, the State emphasized the serious nature 

of the offense. The prosecutor specifically described evidence showing 

defendant communicated with the child for approximately a month using 

"multiple screen names" and several internet services, "including one that 

provided live video." He highlighted that "this was not . . . a one-time 

transaction between a [thirty]-year-old man and a ten-year-old girl . . . [but] a 

pattern of conduct . . . ." 

The victim's mother described her anguish that her child was "stripped of 

her innocence through deplorable actions of another." She made clear that 

"[j]ustice may have been served in the eyes of the law, but not through [hers]." 

The prosecutor urged the public import of imposing a substantial term of 

incarceration for defendant and the danger this conduct poses to children in the 

internet age. 
7 A-3301-22

The sentencing court considered defendant's mitigating information and 

acknowledged that the "plea agreement was the product of . . . some lengthy and 

intense negotiations between his attorney and the State." Describing the 

circumstances as "horrendous and despicable," the court noted defendant sent 

the child pornographic videos including a video of himself masturbating. The 

court characterized the sexual communications and images as "every parent's 

nightmare." The court credited defendant's proactive therapy efforts as not 

something it "normally see[s]," but observed, "what I'm dealing with here is an 

individual who otherwise was leading a double life with a deep, dark, disgusting 

secret, quite frankly, unbeknownst to these family and friends who have put their 

good name to paper in support of him." The court was "not swayed by 

[defendant's] tears in court," finding them more about his "dark secret" being 

uncovered. 

The court raised concern that defendant's previous form of self-support 

was professional poker playing, noting, "[i]t gives me a little bit of a window 

into [defendant's] life. . . . Professional poker player, gambler, gambling with 

his life and, most importantly here, gambling with the health and welfare of a 

vulnerable child." The court found future risk of re-offense existed and 

addressed defendant, "[y]ou obviously have deep-seated mental health issues 
8 A-3301-22

that need to be addressed, not only for your sake, but more importantly for 

the . . . protection of the public and any other children [who] might ever cross 

paths with you." 

The court accordingly found aggravating factors three, the risk of another 

offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for deterring the defendant 

and others from violating the law, N.J.S.A. 2C:44-1(a)(9), outweighed the 

singular mitigating factor seven, defendant's lack of prior criminal history, 

N.J.S.A. 2C:44-1(b)(7). Emphasizing its view that defendant's mitigating 

information did not support the lowest sentence, the court instead imposed four 

years' imprisonment, subject to Megan's law, mandatory financial assessments, 

and no contact with the victim. 

Defendant did not appeal the conviction or sentence. 

B. The PCR Petition and Hearing 

In January 2022, defendant filed his PCR petition based solely on defense 

counsel's failure to advise him of his ability to apply for admission to PTI. He 

claimed his counsel's deficient performance was prejudicial as he would have 

applied for PTI and would have exhausted all appeals if denied. He asserted 

that his rehabilitative efforts and lack of prior history placed him in a favorable 

position for PTI. Defendant submitted his own certification and that of his 
9 A-3301-22

mother, as well as mitigating information, including the evaluations and 

treatment records provided to both the State and the sentencing court. 

The specific prosecutor who handled defendant's investigation, 

prosecution, plea negotiations and hearing, and sentencing proceeding opposed

the petition. He explained that he considered this case "one of the more serious" 

in his experience and offered his first-hand knowledge that "the State would 

have never agreed . . . [to PTI]." The prosecutor represented he would not have 

"agreed to PTI for an individual [who] asked a [ten]-year-old girl to take pictures 

of her vagina and breasts." He emphasized that defense counsel effectively 

advocated for defendant and provided the State with the same information relied 

upon in a PCR application. The prosecutor clarified that this information, 

coupled with the desire to spare the child from testifying at trial, led to the State's 

final plea offer from which the State would never have departed. 

The prosecutor represented that the victim's family was very involved 

throughout the process and would not have foregone prosecution of the matter. 

Further, the prosecutor found defendant's statement "outrageous" that the State 

might have agreed to any resolution that circumvented Megan's Law sex 

offender registration or legislatively mandated incarceration. The State 

contended defendant was not prejudiced because "that PTI application would 
10 A-3301-22

have never, ever, ever been granted. Ever." The prosecutor assured that its 

position was not a categorical denial, but one specific to the facts of defendant's 

case and personal characteristics. 

The PCR judge issued a written decision denying the application and the 

request for an evidentiary hearing. In reaching its decision, the judge recounted 

the serious nature of the offense, the specific findings and concerns of the 

sentencing court, and defense counsel's securing a favorable plea agreement and 

sentence following months of plea negotiations. 

Applying the standards of Strickland v. Washington, 466 U.S. 668 (1984) 

(setting forth the two-pronged showing for ineffective assistance of counsel 

requiring both deficient performance and prejudice), the PCR judge denied the 

petition based on the first prong, finding that defense counsel was not deficient. 

Because defendant faced prosecution of first- and second-degree crimes 

involving his exchanging graphic sexual images with a ten-year-old child, the 

PCR judge credited the trial prosecutor's representation that it would have 

opposed a PTI application. The judge also cited to Rule 3:28-1, not in effect at 

the time of defendant's pre-trial proceedings, that requires the prosecutor's 

"consent" to apply for PTI when a defendant faces charges of the first- or 

second-degree. Finding counsel was not deficient, the judge did not conduct a 
11 A-3301-22

prejudice analysis under Strickland's second prong. The judge denied an 

evidentiary hearing, finding defendant's "merely speculative assertions" did not 

warrant a hearing. 

II. 

Defendant appeals, raising the following arguments:

POINT I 

THE TRIAL COURT FAILED TO PROPERLY 

ANALYZE [DEFENDANT]'S INEFFECTIVE 

ASSISTANCE CLAIM UNDER THE FIRST PRONG 

OF STRICKLAND V. WASHINGTON. 

A. The Lower Court Conflated (and Confused) the 

Analysis of the Prejudice and Performance Prongs 

of Strickland, by Finding that [Defendant]'s Former

Trial Counsel's Performance was Not Deficient 

Because Former Counsel Obtained a Favorable Plea 

Offer and Sentence. 

B. The Court Below Incorrectly Cited to a PTI Court 

Rule that was Not Legally in Effect When 

[Defendant] Would Have Applied for PTI. 

C. [Defendant]'s Former Trial Counsel Failed to 

Properly Advise Him About His Eligibility to Apply 

for PTI, Which Was Based Upon His 

Misunderstanding about the PTI Process, as 

Evidenced by His Communications with 

[Defendant]'s Mother. 
12 A-3301-22

POINT II 

THE LOWER COURT'S FLAWED ANALYSIS OF 

THE FIRST STRICKLAND PRONG LED TO ITS 

DETERMINAT[I]ON THAT IT DID NOT NEED TO 

ASSESS THE SECOND STRICKLAND PRONG; 

HOWEVER, SINCE [DEFENDANT]'S FORMER 

ATTORNEY FAILED TO PROPERLY ADVISE HIM 

OF AN IMPORTANT STATUTORY RIGHT, THE 

SECOND PRONG ("PREJUDICE") IS SATISFIED. 

POINT III 

THE TRIAL COURT'S REFUSAL TO GRANT 

[DEFENDANT] AN EVIDENTIARY HEARING 

WAS A CLEAR ERROR OF LAW, AS 

[DEFENDANT]'S CERTIFICATION ESTABLISHED 

RELEVANT AND MATERIAL FACTS IN DISPUTE 

REQUIRING RESOLUTION VIA AN 

EVIDENTIARY HEARING. 

Defendant contends the PCR judge erred in denying his PCR petition, or 

at a minimum, his request for an evidentiary hearing. He argues that defense 

counsel's performance was deficient for failing to advise him of his ability to 

apply for PTI, and the judge's reliance on counsel's performance in plea 

negotiations and at sentencing was improper and "wholly irrelevant." Further, 

he argues that the prejudice flows directly from being denied the opportunity to 

apply for PTI and, if unsuccessful, to appeal his rejection. He asserts that to 

show prejudice he need not establish a reasonable probability that he would have 
13 A-3301-22

been admitted to PTI and need only show the reasonable probability that he 

would have applied, which he claims he demonstrated by certifying he would 

have done both.1 Defendant also urges that the PCR judge erred by relying on 

language in Rule 3:28-1 requiring prosecutorial consent, as it was adopted after 

his conviction, and by disregarding the import of his mitigating information in 

denying his petition or, at a minimum, his request for an evidentiary hearing. 

The State counters that counsel was not deficient, and defendant cannot 

establish the reasonable probability that the outcome would have been different 

had he been advised and applied for PTI. 

Defendant does not seek to have his plea and conviction vacated. Instead, 

he requests that this court remand for an evidentiary hearing to determine what, 

if anything, defense counsel advised regarding PTI. Defendant further seeks a 

prospective order allowing him, if successful at the hearing, to apply for PTI and 

appeal any rejection. He asks this court to vacate the plea and conviction, but 

"only upon a determination by the [p]rosecutor or the [c]ourt that [defendant] 

should be admitted to PTI." 

1

 Defendant's appellate counsel further claimed at oral argument that defendant 

would have applied and exhausted appeals even if that resulted in the State's 

withdrawing its plea offer, although defendant did not certify to that 

representation. 
14 A-3301-22

III. 

We review the legal conclusions of a PCR court de novo. See State v. 

Harris, 181 N.J. 391, 419 (2004). In the absence of an evidentiary hearing, as 

here, we may review without deference "both the factual findings and legal 

conclusions of the PCR court." Id. at 421. To prevail on a PCR application, the 

defendant must show by a preponderance of the evidence that he is entitled to 

relief. See State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, 

the defendant must allege and articulate specific facts that "provide the court 

with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 

565, 579 (1992). 

New Jersey's PCR petition serves as an "analogue to the federal writ of 

habeas corpus." Preciose, 129 N.J. at 459. "[N]either a substitute for direct 

appeal" for those criminally convicted, nor a vehicle to re-litigate matters 

already resolved on their merits, PCR proceedings can offer the best opportunity 

for ineffective assistance claims to be reviewed. Id. at 459-60.

The United States Supreme Court in Strickland, 466 U.S. at 687, 

established a two-part test to determine whether a defendant has been deprived 

of the effective assistance of counsel, which the New Jersey Supreme Court 

adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Failure to establish either prong 
15 A-3301-22

requires the denial of a PCR petition founded on an ineffective assistance of 

counsel claim. See Strickland, 466 U.S. at 700. To satisfy the first prong, a 

defendant must demonstrate counsel's performance was deficient and "fell 

below an objective standard of reasonableness" and "counsel made errors so 

serious that counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Id. at 687-88. Defendants "must allege 

specific facts and evidence supporting [their] allegations." State v. Porter, 216 

N.J. 343, 355 (2013). "Bald assertions" will not suffice. State v. Cummings, 

321 N.J. Super. 154, 170 (App. Div. 1999). Further, reviewing courts "must 

indulge a strong presumption that counsel's conduct falls within the wide range 

of reasonable professional assistance," and "the defendant must overcome the 

presumption that, under the circumstances, the challenged action [by counsel] 

'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting 

Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

Under Strickland's second prong, a defendant must "affirmatively prove" 

"a reasonable probability that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different." State v. Gideon, 244 N.J. 538, 

551 (2021) (quoting Strickland, 466 U.S. at 694). To show sufficient prejudice 

when a conviction results from a guilty plea, a defendant must show a 
16 A-3301-22

"'reasonable probability that, but for counsel's errors, [the defendant] would not 

have pled guilty and would have insisted on going to trial,'" State v. NuñezValdéz, 200 N.J. 129, 142 (2009) (alteration in original) (quoting State v. 

DiFrisco, 137 N.J. 434, 457 (1994)); see also State v. Gaitan, 209 N.J. 339, 351 

(2012), and that "a decision to reject the plea bargain would have been rational 

under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see 

also Missouri v. Frye, 566 U.S. 134, 147 (2012) (finding as to prejudice that "it 

is necessary to show a reasonable probability that the end result of the criminal 

process would have been more favorable by reason of a plea to a lesser charge 

or a sentence of less prison time."). An evidentiary hearing need not be granted 

simply upon request for PCR, see Cummings, 321 N.J. Super. at 170; however, 

a hearing may be warranted if a defendant demonstrates its necessity to develop 

a sufficient factual record. See Preciose, 129 N.J. at 462. 

As defendant's petition centered exclusively on counsel's alleged failure 

to advise of his eligibility for PTI, we begin by recognizing the program provides 

"an alternative procedure to the traditional process of prosecuting criminal 

defendants . . . through which certain offenders [may] avoid criminal 

prosecution by receiving early rehabilitative services expected to deter future 

criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). Subject to 
17 A-3301-22

certain exclusions and presumptive rejections, PTI is available to all defendants 

deemed suitable for admission. See State v. Gomes, 253 N.J. 6, 20 (2023). "[A] 

decision as to whether to admit a particular defendant into PTI has been treated 

as a fundamental prosecutorial function." Id. at 18 (citing State v. Leonardis, 

71 N.J. 85, 121 (1976)). Courts may not usurp a prosecutor's judgment in this 

arena absent a "'patent and gross abuse of discretion.'" Ibid. (quoting Nwobu, 

139 N.J. at 246-47). 

We review the PTI framework in existence at the time of defendant's pretrial proceedings. Specifically, "[u]ntil 2018, the assessment of a defendant's 

suitability for PTI was based on factors set out in both N.J.S.A. 2C:43-12(e) and 

Rule 3:28." Id. at 17 (citing State v. Johnson, 238 N.J. 119, 128 (2019)). 

Significantly, at times relevant to this appeal, pursuant to then-Rule 3:28, 

Guideline 3(i), and the Official Comment, a rebuttable presumption existed 

against admission for first- and second-degree offenses, providing that 

applicants charged with such offenses should ordinarily be rejected unless the 

prosecutor affirmatively joined in the application. Amended in 2018 to replace 

the prior Guidelines, Rule 3:28 now expressly requires prosecutorial consent 

before such defendants may even apply. See R. 3:28-1(d)(1). Although the PCR 
18 A-3301-22

court cited to the current rule, defendant overstates the significance of the rule's 

amendment. 

Importantly, the post-2018 version of Rule 3:28-1 essentially "codifie[d] 

past practice [now] making clear that persons charged with crimes for which 

there is a presumption of incarceration . . . may not have their applications 

considered without prosecutor consent." Pressler & Verniero, Current N.J. 

Court Rules, cmt. on R. 3:28-1(d) (2025). The presumption set forth in prior 

Guideline 3(i) was itself formidable and rebuttable only upon a defendant's 

showing of "something extraordinary or unusual" of an "idiosyncratic" nature 

commensurate with the sentencing showing necessary to overcome the 

presumption of incarceration. Nwobu, 139 N.J. at 252 (emphasizing that the 

defendant's second-degree charge was "the single most important factor" in 

overcoming the presumption against PTI, and the defendant must establish 

"compelling reasons" for admission into PTI). Thus, defendant faced this 

significant hurdle of overcoming presumptive rejection and legislatively 

mandated incarceration for these very serious first- and second-degree offenses 

even before the rule's amendment. 
19 A-3301-22

IV. 

Against this backdrop, we consider and reject defendant's claims, after 

affording defendant the favorable inferences to which he is entitled. See R.

3:22-10(b). Having reviewed the extensive record presented by defendant in 

support of his petition and the State's opposition, we need not remand for an 

evidentiary hearing. We will accept for purposes of argument that defense 

counsel never advised defendant of his eligibility and right to apply to PTI and 

that defendant would have applied had he known about the program. We further 

accept that in furtherance of that application defendant would have emphasized 

his personal information and mitigating sex-offender treatment efforts and 

vigorously appealed any rejection by the prosecutor. 

We need not determine whether counsel's performance here was deficient, 

because, even assuming it was, we are satisfied that defendant did not 

demonstrate any deficiency was prejudicial to him as required under Strickland's 

second prong. See Gaitan, 209 N.J. at 350 (recognizing that "[a]lthough a 

demonstration of prejudice constitutes the second part of the Strickland analysis, 

courts are permitted leeway to choose to examine first whether a defendant has 

been prejudiced." (citing Strickland, 466 U.S. at 697)).
20 A-3301-22

It was not sufficient for defendant to merely claim he would have applied 

to PTI to show prejudice. He must also show the reasonable probability that he 

would have been admitted to PTI had he applied. See State v. L.G.-M., 462 N.J. 

Super. 357, 369-70 (App. Div. 2020) (remanding for PCR hearing based on 

showing of counsel's flawed immigration advice and expressly directing the 

PCR court to determine "the probability of defendant's admission into the PTI 

program" had he applied and the resulting impact on the probability of 

deportation). 

Further, the record is clear regarding the improbability of PTI admission. 

The prosecutor who was involved at all stages of this case represented the State 

would never have joined in the application or admitted defendant into PTI. 

Guideline 3(i) presented a weighty obstacle for defendant that he has not shown 

he was likely to overcome. Citing with particularity the State's consideration of 

PTI factors, including the serious nature of this offense, the great public interest 

in formal prosecution of defendant and adherence to legislatively presumed 

incarceration and application of Megan's Law, the victim's strong interest in 

securing a conviction and opposition even to the favorable recommended 

sentence, defendant's therapeutic efforts and lack of a prior record, and the 

State's concerns engendered by information and conclusions in defendant's own 
21 A-3301-22

expert submissions, the prosecutor unequivocally maintained that in the State's 

discretion diversion was never an option. The prosecutor assured he would not 

have categorically rejected defendant's admission, but instead specifically 

rejected this defendant based on the particularized facts and circumstances. 

We recognize that the prosecutor's virtually certain rejection would have 

been subject to narrow appeal for abuse of discretion, but defendant has likewise 

failed to show a reasonable probability of success on appeal to either the trial 

court or this court. Given the extraordinary deference accorded to the 

prosecutor's decision, the record provides no support, even prima facie, for such 

a contention. The sentencing court's findings, declining to reduce the prison 

term to the lower end of the sentencing range, are generally emblematic of 

judicial evaluation of defendant's mitigating information. We also note that, to 

exhaust PTI appeals, defendant would have risked losing a plea offer to a prison 

term in the third-degree range, when he faced up to twenty years' incarceration 

on the first-degree charge and possible consecutive sentencing on the seconddegree sexual assault. 

Our independent review of the record taken in the light most favorable to 

defendant readily undermines his claims regarding the probable outcome had he 

known about the PTI program and applied. Defendant's insistence that this case 
22 A-3301-22

did not involve "contact" with the child victim, and reliance on the expert 

opinions that he is unlikely to commit a sexual offense involving actual physical 

contact, ignore the prosecutor's reasonable view of the magnitude and impact of 

his sexually explicit electronic contact and communication, continuous over a 

period of time, with a ten-year-old child. Defendant caused the child to film 

herself in sexually explicit acts, transmit those images to defendant, and view 

sexually graphic images of defendant, nearly twenty years her senior. While 

defendant characterized his conduct as pure virtual "fantasy," the prosecutor's 

recognition of the real and harmful impact of that conduct on a specific child 

was not likely to be deemed arbitrary. 

Although defendant's therapeutic efforts were certainly positive, he 

ignores the concerning aspects of those reports and this offense that the 

prosecutor assured would have caused the State to reject his application, and 

which made successful appeal of the PTI rejection, shrouded in deference, 

improbable. To find prejudice would require speculation regarding an unlikely 

outcome. 

Affirmed.