RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3730-18T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROMAN A. RHYM,

Defendant-Respondent.

__________________________

Submitted November 12, 2019 –

Decided August 11, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment No. 19-04-

0287.

Christine A. Hoffman, Acting Gloucester County 

Prosecutor, attorney for appellant (Timothy James 

Gaskill, Special Deputy Attorney General/Acting 

Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for 

respondent (Alyssa A. Aiello, Assistant Deputy Public 

Defender, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

The State appeals the April 26, 2019 order entered by the trial court, which

reversed the prosecutor's denial of defendant Roman A. Rhym's application for 

admission into the Pre-Trial Intervention Program (PTI) and admitted defendant

into PTI. The trial court found that the prosecutor's denial of defendant's 

application constituted a patent and gross abuse of discretion. In particular, the 

court found that the prosecutor failed to consider relevant factors enumerated in 

N.J.S.A. 2C:43-12 and relied solely on the nature of defendant's offense. Having 

reviewed the record, and in light of the applicable law, we reverse the trial 

court's decision to admit defendant into PTI and remand the matter to the 

prosecutor for reconsideration of defendant's PTI application.

I.

We discern the following facts from the record. This matter arises from 

an incident on September 15, 2018, during which the victim, C.M., was

assaulted by three individuals. On September 17, 2019, C.M. recounted to 

police that a codefendant, C.S., had tased him, and defendant had beat him 

"several times" with a bat. When defendant was initially questioned by police, 

he denied knowing who had assaulted C.M. On September 20, 2018, however, 

defendant voluntarily spoke with police and admitted that he had orchestrated 
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the assault, informed the other two participants about the plan, and struck C.M. 

with a bat. Defendant expressed that "he was sorry for lying during the initial 

interview." 

Defendant was charged with aggravated assault and criminal mischief.1 

On December 7, 2018, the prosecutor filed a notice of pre-indictment plea offer 

that would resolve the charges pending against defendant. The prosecutor 

offered to admit defendant into PTI "if eligible or two years of probation," with 

several other conditions. On December 18, 2018, defendant filed a PTI 

application, with a letter from his assigned counsel annexed that detailed 

"compelling reasons for admission." The letter explained that throughout his

years in school, defendant had built strong relationships with staff, maintained 

good grades, and was active in extracurricular activities, particularly sports. The 

letter noted that defendant took care of his younger sister and was actively 

applying to colleges. The letter highlighted that defendant had just turned 

eighteen years old before the incident, and he had no prior violent or criminal 

1

 Defendant was later indicted on April 24, 2019 by a Gloucester County grand 

jury on four counts, including third-degree aggravated assault with a deadly 

weapon; third-degree conspiracy to commit aggravated assault with a deadly 

weapon; fourth-degree unlawful possession of a weapon; and third-degree 

possession of a weapon for an unlawful purpose.
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history. The letter also expressed that defendant's confession to the assault was 

"mature" and "responsible," and he was actively seeking a job so he could "repay 

the damage caused."

On February 11, 2019, the Senior Probation Officer (SPO) and the

Criminal Division Manager (CDM) sent defendant a letter recommending that 

the prosecutor deny defendant's PTI application. The basis for the 

recommendation was that defendant was "charged with a crime that is of an 

assaultive or violent nature, whether in the criminal act itself or in the possible 

injurious consequences of such behavior. N.J.S.A. 2C:43-12(e)(10)." The letter 

provided no other reasons for the recommendation of a denial but stated that 

"[a]ll material submitted by the defendant has been considered in this referral, 

including his lack of indictable convictions."

The prosecutor sent defendant a letter dated March 7, 2019, concurring 

with the recommendation of the SPO and CDM and rejecting defendant's PTI 

application "for substantially the same reasons." The letter expressed that the 

prosecutor had "reviewed [defendant's] file along with the [PTI] director's 

rejection," as well as defendant's letter of compelling reasons. In the letter, the 

prosecutor identified defendant's motivation for the attack to be "animosity 

toward [C.M.] who was friends with a mutually known female." The letter also 
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detailed that, with regard to defendant's personal problems or character traits 

implicated in the assault, the "assault was fueled by jealousy and [the 

prosecutor] knows of no program within the criminal justice system or 

supervisory treatment which can treat that character flaw."

Defendant appealed his PTI rejection. On April 26, 2019, the Law 

Division judge held a hearing and issued a written opinion on defendant's appeal 

of the denial. At the hearing, defendant argued that the PTI denial was a 

"categorical rejection" based purely on the nature of the offense, and the 

prosecutor had failed to consider factors weighing in his favor. Defendant added 

that his vice principal and coaches "had given character statements in his 

support," but the prosecutor failed to consider these statements. 

The State countered that school officials had no knowledge of defendant's 

offenses and were only familiar with defendant within the narrow context of his 

school-related activities. The State emphasized C.S.'s declaration that he "was 

scared and felt as though if someone found out that he gave a statement he would 

be next to get beaten up" referred to defendant and was more dispositive of 

defendant's character than the opinions of school officials. The State surmised 

that defendant's motive, if not jealousy, was to "pick[] on [C.M.] because they 

think he's a drug addict." The State argued C.S.'s statement, coupled with both 
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the premeditated and violent nature of defendant's offense, as well as his 

reluctance to initially confess to the offense, all reflected poorly on defendant's 

character and against granting his PTI application. 

The reviewing judge conceded at the hearing that the case was "a very 

close call." The judge commented that "nobody wants to be judged . . . about 

ten minutes of their life picked up through a microscope . . . but generally, this 

individual is of good character, and [it's] substantiated. And that doesn't look 

like it was taken into consideration by the State." The judge concluded that "the 

[S]tate's position . . . was based upon what the victim wanted . . . and mostly 

that it was a crime of violence." 

In the judge's written decision, he opined that although "[d]efendant is 

charged with a violent crime and as such is presumptively ineligible for PTI, 

[the State must still] give [him] individualized consideration including what is 

presented in the compelling reasons letter." The judge relied upon the points 

raised in the letter and found that "[t]hese facts, particular to this [d]efendant, 

are relevant to determine if society would benefit from prosecution through 

traditional means as opposed to channeling [d]efendant into PTI. Moreover, 

these facts were not considered by the [p]rosecutor."
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The judge also determined that the prosecutor improperly weighed two 

factors subsumed under N.J.S.A. 2C:43-12 against defendant, when those 

factors favored defendant. These included "[t]he motivation and age of the 

defendant," as well as the presence of "personal problems and character traits 

which may be related to the applicant's crime and for which services are 

unavailable within the criminal justice system, or which may be provided more 

effectively through supervisory treatment and the probability that the causes of 

criminal behavior can be controlled by proper treatment." Based on the State's 

characterization of defendant's crime as "an act of jealousy," the judge 

commented that "there are . . . programs to help with managing anger and 

jealousy in a non-violent manner as well as impulse control, which would . . . 

be helpful to such a youthful offender."

The judge added that the prosecutor also incorrectly "weighed 

[d]efendant's initial lies to police against him heavily . . . [but] did not consider 

. . . that [d]efendant, on his own accord, went back to police to tell the truth. " 

The judge explained that the prosecutor impermissibly attributed defendant's 

decision to tell the truth to his learning that "his friends told the truth." The 

judge emphasized that defendant, "without any prompting by police, went back 

to tell the truth, openly availing himself to additional charges." The judge 
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concluded that because the prosecutor failed to consider these factors, the denial 

was a patent and gross abuse of discretion, and the judge granted defendant's 

motion, admitting him into the PTI program. This appeal ensued.

On appeal, the State raises the following argument:

POINT I. THE LOWER COURT WAS INCORRECT 

IN GRANTING . . . DEFENDANT'S ADMISSION 

INTO PRETRIAL INTERVENTION

II.

"A reviewing court 'does not have the authority in PTI matters to substitute 

[its own] discretion for that of the prosecutor.'" State v. Nwobu, 139 N.J. 236, 

253 (1995) (alteration in original) (quoting State v. Kraft, 265 N.J. Super. 106, 

112 (App. Div. 1993)); accord State v. Hoffman, 399 N.J. Super. 207, 216 (App. 

Div. 2008) ("[The court] cannot substitute its own judgment for that of the 

prosecutor even when 'the prosecutor's decision is one which the . . . court

disagrees with or finds to be harsh.'" (quoting Kraft, 265 N.J. Super. at 112–

13)). "[T]he decision to grant or deny PTI is a 'quintessentially prosecutorial 

function[]' . . . entitled to a great deal of deference." State v. Johnson, 238 N.J. 

119, 128 (2019) (quoting State v. Roseman, 221 N.J. 611, 624 (2015)). The trial 

court may reverse the prosecutor's decision to deny PTI "only if the defendant 

'clearly and convincingly' establishes the decision was a 'patent and gross abuse 
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of discretion.'" Id. at 128–29 (quoting State v. Wallace, 146 N.J. 576, 582

(1996)).

Ordinarily, an abuse of discretion will be manifest if 

[the] defendant can show that a prosecutorial veto (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 judgement. 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 Pretrial 

Intervention.

[Id. at 129 (quoting Roseman, 221 N.J. at 625).]

"If a prosecutor fails to consider all relevant factors or considers irrelevant 

factors, a court may remand the matter for further consideration. If a prosecutor 

commits a clear error of judgment, a court may order that a defendant be enrolled 

in PTI." Nwobu, 129 N.J. at 247. The question of whether the prosecutor 

reached his or her decision based on an appropriate factor is a matter of law. 

Ibid.

Under Rule 3:28-1(e)(2)(b)(ii), a presumption against admission in PTI 

exists if a defendant's crime "involved violence or the threat of violence,"

including where "the actor was armed with and used a deadly weapon . . . as 

defined in N.J.S.A. 2C:11-1." Rule 3:28-4(a) establishes that the prosecutor, in 

determining a defendant's eligibility for a supervisory treatment program such 
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as PTI, shall consider the seventeen factors enumerated under N.J.S.A. 2C:43-

12(e). Rule 3:28-4(b) directs the prosecutor to also consider the nature of the 

offense and the defendant's juvenile record. Regarding the nature of the offense,

if the offense was "deliberately committed with violence or threat of violence 

against another person . . . the defendant's application should generally be

rejected." R. 3:28-4(b)(1). The prosecutor is also to consider "the victim's 

position if any, on whether the defendant should be admitted." R. 3:28-4(c). 

However, "[the] prosecutor must consider an individual defendant's features that 

bear on his or her amenability to rehabilitation." Roseman, 221 N.J. at 630 

(quoting Nwobu, 139 N.J. at 255). 

We presume the prosecutor "considered all relevant factors" in reviewing 

a defendant's PTI application, "absent evidence to the contrary." Nwobu, 139 

N.J. at 249. However, "per se rules require prosecutors to disregard relevant 

factors, contrary to the guidelines, and when a defendant demonstrates that a 

prosecutor has relied on such a rule, the presumption that the prosecutor has 

considered all relevant facts is overcome." State v. Baynes, 148 N.J. 434, 445 

(1997).

We conclude that the Law Division judge, though well-intentioned, erred 

by overruling the prosecutor and admitting defendant to PTI. That said, we 
11 A-3730-18T1

share the reviewing judge's concerns that the prosecutor may not have given 

defendant's application the individualized consideration of the factors set forth 

at N.J.S.A. 2C:43-12(e). In that regard, despite the fact that there was a 

presumption against defendant's admission into the PTI program, see R. 3:28-

1(e)(2)(b)(ii), the prosecutor was still required to consider all of the factors 

enumerated under both N.J.S.A. 2C:43-12(e) and Rule 3:28-4(b), as well as 

defendant's individual "features that bear on his . . . amenability to 

rehabilitation," Roseman, 221 N.J. at 630 (quoting Nwobu, 139 N.J. at 255).

Although the prosecutor indicated the review of defendant's application 

included consideration of all the materials submitted, including character letters 

from school officials, defendant's family history, and his lack of any prior 

criminal history, the reasons for the categorical dismissal of any mitigating 

reasons are, on this record, less than persuasive. The prosecutor relied on the 

statement of C.S., the codefendant who tased the victim, as more persuasive than 

the school officials on the subject of defendant's character. Moreover, the State 

indicated that there were no programs to address defendant's anger problems, 

which, as the reviewing judge found, appears somewhat implausible. The 

reasons that supported defendant's application included his participation in 

school-related and extracurricular activities, his caring for his younger sister, 
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and his active search for a job to repay C.M. for the harm he caused, and included 

were letters from school officials attesting to defendant's character, which were 

not addressed by the prosecutor. 

Under the circumstances, we find that the appropriate remedy is to remand 

the matter to the prosecutor for reconsideration of defendant's PTI application.

See Nwobu, 139 N.J. at 247. On remand, the prosecutor shall articulate reasons 

for the decision with reference to the statutory factors to facilitate, if necessary, 

further review.

To the extent we have not specifically addressed any remaining arguments 

raised by the State, we conclude they lack sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(2). 

Reversed and remanded to the prosecutor for reconsideration of 

defendant's PTI application. We do not retain jurisdiction.