SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4808-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDRA POJAWA,

Defendant-Appellant.

_______________________

Submitted January 25, 2021 – Decided

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 11-10-1772.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Zachary Markarian, Assistant Deputy Public 

Defender, of counsel and on the brief).

Mark Musella, Bergen County Prosecutor, attorney for 

respondent (Craig A. Becker, Assistant Prosecutor, of 

counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

February 9, 2021
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Defendant appeals from her conviction for third-degree theft by unlawful 

taking. Defendant argues it was a patent abuse of discretion to reject her 

application for admission into the pre-trial intervention program (PTI) based on 

her inability to pay restitution up front. The record does not support this 

characterization and instead reflects that defendant's inability to pay was one of 

several relevant statutory factors supporting the denial. We therefore affirm. 

In October 2011, a Bergen County grand jury charged defendant with 

third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Defendant failed to 

appear for her arraignment in late 2011 and the judge issued a bench warrant. 

Two years later, defendant was picked up on the bench warrant. In August 2013, 

defendant appeared for a status conference, however the judge adjourned the 

conference to allow the State to determine restitution. The State resolved the 

issue and defendant was to appear on September 23, 2013, which she failed to 

do, resulting in the issuance of a second bench warrant. 

In May 2018, police picked defendant up on the second bench warrant as 

a result of a motor vehicle stop. The judge held a status conference on May 14, 

2018 and set a June date for defendant's next appearance. Thereafter, defendant 

applied for PTI. On June 25, 2018, defendant failed to appear again and 

represented to her attorney that she had a family medical issue, which she failed 
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to proffer documentation of, thereby resulting in the issuance of a third bench 

warrant. 

Although the PTI director recommended accepting defendant's 

application, in August 2018, the prosecutor objected. On September 24, 2018,

the judge heard argument on defendant's appeal from the prosecutor's denial of 

her application and upheld that determination. 

Defendant then pled guilty to the charge. The plea agreement reflected 

the State would recommend a five-year probationary term, and restitution in the 

amount of $15,000 to be paid in monthly increments of $50. The judge 

sentenced defendant to three-years' probation and imposed the fines. 

On appeal, defendant raises the following issue for this court's 

consideration: 

POINT I

THE TRIAL [JUDGE] ERRED IN FINDING THE 

STATE'S DENIAL OF [DEFENDANT'S] 

APPLICATION FOR [PTI], WHICH

IMPERMISSIBLY OPPOSED HER ENTRY INTO 

THE PROGRAM ON THE BASIS OF HER 

INABILITY TO PAY FULL RESTITUTION 

UPFRONT, WAS NOT AN ABUSE OF 

DISCRETION.

Deciding whether to permit a defendant to divert to PTI "is a 

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 
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(1996), for which a prosecutor is given "broad discretion," State v. K.S., 220 

N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list 

of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to 

"make an individualized assessment of the defendant considering his or her 

amenability to correction and potential responsiveness to rehabilitation." State 

v. Roseman, 221 N.J. 611, 621-22 (2015) (citations and internal quotation 

marks omitted). "These factors include 'the details of the case, defendant's

motives, age, past criminal record, standing in the community, and employment 

performance[.]'" Id. at 621 (alteration in original) (quoting State v. Watkins, 

193 N.J. 507, 520 (2008)). 

That said, the scope of this court's review of a PTI rejection is severely 

limited and designed to address "only the 'most egregious examples of injustice 

and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. 

Leonardis, 73 N.J. 360, 384 (1977)). "In order to overturn a prosecutor's 

rejection, a defendant must 'clearly and convincingly establish that the 

prosecutor's decision constitutes a patent and gross abuse of discretion,'" 

meaning that the decision "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 (first quoting State v. Watkins, 390 
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N.J. Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J. 

at 582-583). 

An abuse of discretion has occurred where defendant can prove "that the 

denial '(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[.]'" State v. Lee, 437 N.J. Super. 555, 

563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). "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 [PTI]." Roseman, 221 N.J. at 625 (quoting 

Bender, 80 N.J. at 93). "The extreme deference which a prosecutor's decision 

is entitled to in this context translates into a heavy burden which must be borne 

by a defendant when seeking to overcome a prosecutorial veto of his [or her] 

admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993). 

Defendant cannot meet this steep burden here. Defendant's conduct throughout 

the litigation demonstrates that she was, and continues to be, a poor candidate 

for PTI. Applying these principles, the prosecutor's decision to deny 

defendant's entry into PTI does not amount to a "patent and gross" abuse of 

discretion. 
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A PTI diversion decision is not limited to consideration of the gravity of 

the crimes committed but must also consider the applicant's "amenability to 

correction" and "responsiveness to rehabilitation." RSI Bank v. Providence 

Mut. Fire Ins. Co., 234 N.J. 459, 474 (2018). N.J.S.A. 2C:43-12(e) sets forth 

factors encompassing these concepts that prosecutors must contemplate before 

accepting or rejecting entry into PTI. While the prosecutor may not make 

defendant's ability to pay restitution the sole reason for the denial, there will 

be no abuse of discretion when the restitution finding is "only [one] of the many 

valid considerations that support defendant's rejection." State v. Imbriani, 291 

N.J. Super. 171, 181 (App. Div. 1996). This was the case here. 

The prosecutor found factors seven and fourteen, N.J.S.A. 2C:43-

12(e)(7) and (14), "the interests of society and the victims," because defendant, 

who was unemployed and suffering from addiction, represented that the she 

could only restore $1,800 of the $30,000 in stolen jewelry; a "woefully" small 

percentage that would not be in the victim's or society's best interest to accept. 

In addition, however, the prosecutor found factors two and eight, 1and detailed 

1 The State acknowledged in its merits brief that defendant's failures to appear 

were incorrectly categorized as supporting factor eight, N.J.S.A. 2C:43-

12(e)(8). The State maintains that defendant's failures to appear are still a 

relevant consideration under N.J.S.A. 2C:43-12(e)(3), "the motivation and age 

of the defendant." 
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each in his statement of reasons. As to factor two, N.J.S.A. 43-12(e)(2), "the 

facts of the case," the prosecutor gave weight to the fact that defendant took 

advantage of the victim's kindness with an act of greed. As to factor eight, 

N.J.S.A. 2C:43-12(e)(8), defendant's "continuing pattern of anti-social 

behavior," the prosecutor emphasized that defendant's failure to appear at her 

arraignment in 2011, the hearing in September 2013, and her failure to appear 

at another hearing in June 2018, reflected a "complete disregard for the 

criminal justice system" that rendered her an "[un]acceptable candidate for the 

PTI program." These factors supporting the prosecutor's veto make clear that 

defendant's inability to pay restitution was not the "sole" factor. 

Moreover, defendant's inability to pay restitution was not the 

determinative factor supporting the denial. Rather, defendant's pattern of 

misconduct and inability to appear was. The prosecutor emphasized in both 

his statement of reasons and throughout the litigation that he was giving 

substantial weight to defendant's failures to appear and comply, which showed 

defendant's lack of motivation to avail herself of PTI. Defendant's failure to 

appear more than four times, and her disappearance for a period of years before 

being brought in on bench warrants, evidences that she is not "amen[able] to 

correction" nor "responsive[] to rehabilitation." See RSI Bank., 234 N.J. at 
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474. At the hearing on defendant's motion for admission into PTI over the 

prosecutor's objection, the assistant prosecutor argued defendant's conduct 

alone should bar her entry into the program, noting that "unless there [is] some 

compelling reason why this defendant should get PTI, based on her continued 

lack of appearance, the State does not view this candidate as someone who 

would be amenable to PTI." The assistant prosecutor made no similar mention 

of defendant's inability to pay the restitution in full. The judge therefore 

concluded that the prosecutor's denial was "not a patent[] and[] gross abuse of 

discretion where the defendant, who was [admitted] in[to] PTI, did not even 

make an attempt to comply with the terms of PTI," and that defendant was "not 

a candidate for PTI because of the several failures to appear in this court, and, 

the absolute failure to even attempt to comply when she was admitted into 

PTI." We see no abuse of discretion in the denial. 

Affirmed.