SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4924-15T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

YEIMY ACOSTA,

Defendant-Respondent.

_______________________________

Submitted December 22, 2016 - Decided 

Before Judges Lihotz and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Passaic County, Indictment No. 

15-05-0457.

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for appellant (Christopher W. Hsieh, 

Chief Assistant Prosecutor, of counsel and on 

the brief).

Joseph E. Krakora, Public Defender, attorney 

for respondent (Peter T. Blum, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

PER CURIAM

The State appeals from a June 30, 2016 order allowing 

defendant Yeimy Acosta to enroll in the county Pretrial 

NOT FOR PUBLICATION WITHOUT THE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 22, 2017
2 A-4924-15T2

Intervention Program (PTI), over the State's objection. In a 

single point on appeal, the State argues:

THE ORDER ENROLLING DEFENDANT INTO PTI OVER 

THE STATE'S OBJECTION SHOULD BE REVERSED, AS 

THE STATE'S OBJECTION WAS BASED UPON REVIEW 

OF RELEVANT CRITERIA SET FORTH IN N.J.S.A. 

2C:43-12 AND WAS NOT A PATENT AND GROSS ABUSE 

OF DISCRETION.

Following our review, we are compelled to reverse the judge's 

opinion, as admission to PTI is not an appropriate remedy when the 

court finds the prosecutor failed to address all relevant factors 

in a PTI review. We remand the matter for further proceedings

consistent with our opinion. 

Defendant was charged in a three-count indictment with: 

third-degree offenses of possession of gambling records, N.J.S.A.

2C:37-3(a)(1) and N.J.S.A. 2C:37-3(a)(2); promoting gambling, 

N.J.S.A. 2C:37-2(a)(1); and a fourth-degree offense of maintaining 

a gambling resort, N.J.S.A. 2C:37-4(a). The charges were issued 

after police surveillance determined an illegal sports betting 

operation was conducted from Fransol Enterprises, Inc., a 

purported copy and print shop. A search incident to a warrant 

recovered a computer, a gambling line sheet, Dominican Lottery

slips, a bundle of currency, and wager slips. Police arrested 

defendant who was the only employee present. Defendant applied 

for PTI, stating she worked for Fransol Enterprises, Inc., which 
3 A-4924-15T2

she knew was "a gambling store," admitted she knew what was going 

on, and noted the "owner never showed." 

The Criminal Division Manager, as PTI Director, rejected 

defendant's PTI application. Relying on defendant's prior arrests 

and convictions for violating an ordinance in 2006, distribution

of narcotics in a school zone in 2007, and a disorderly persons 

offense in 2014, the PTI Director concluded PTI was "unlikely to 

deter future criminal and disorderly conduct." The Director 

elaborated, stating "defendant's prior record indicates a 

behavioral pattern not conductive to short-term rehabilitation and 

indicates PTI will not serve as a sufficient sanction to deter 

future criminal behavior." Since defendant had been on probation 

for the drug distribution offense, but again engaged in criminal 

conduct, the Director recommended probation as a more appropriate 

lengthier supervision tool, to assure defendant continued to live 

a law-abiding life. 

The prosecutor reviewed the PTI request and the Director's 

assessment. Concurring with the PTI Director's rejection of 

defendant's application, the prosecutor cited these factors in his 

written denial of PTI admission: the nature of the offense; the 

facts of the case; the needs and interests of the victim and 

society; the fact the crimes were part of a continuing pattern of 

anti-social behavior; and defendant's criminal record reflecting
4 A-4924-15T2

she is a danger to others. N.J.S.A. 2C:43-12(e)(1), (2), (7), 

(8), (9) and (17). 

Defendant appealed. She argued the evidence showed she was 

amenable to change because she left the offending place of 

employment to undertake a job in a doctor's office, and expressed 

a desire to further her education. She steadily worked, cared for 

her young child, and maintained the value of PTI supervisory 

treatment outweighed the public's need for prosecution. 

The reviewing judge issued a letter opinion, overriding the

prosecutor's denial, and ordered defendant's admission to PTI. 

The State filed the instant appeal.

As provided by N.J.S.A. 2C:43-12 and the Guidelines set forth 

in Rule 3:28, "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)). N.J.S.A. 2C:43-12 

articulates the factors relevant to determining a defendant's 

suitability for PTI and the applicable procedures, which must be 

followed in that evaluation. Specifically, N.J.S.A. 2C:43-12(e) 

frames factors considered first by the Criminal Division Manager 

and then by the prosecutor. Ibid. The statutory list is not 
5 A-4924-15T2

exhaustive and additional relevant facts may be considered. State 

v. Negran, 178 N.J. 73, 84 (2003).

Any defendant may apply for admission into PTI. Guided by 

the express standards, prosecutors possess broad discretion to 

determine whether a defendant should be diverted into PTI. State 

v. K.S., 220 N.J. 190, 199-200 (2015). "This discretion arises 

out of 'the fundamental responsibility of prosecutors for deciding 

whom to prosecute.'" Id. at 200 (quoting State v. Dalglish, 86 

N.J. 503, 509 (1981)). "Thus, it has clearly been acknowledged 

that this decision lies, in the first instance, with the 

prosecutor, and once he [or she] has determined that he [or she] 

will not consent to the diversion of a particular defendant, his 

[or her] decision is to be afforded great deference." State v. 

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

Leonardis, 73 N.J. 360, 381 (1977)); see also Roseman, supra, 221 

N.J. at 624 ("[T]he decision to grant or deny PTI is a 

'quintessentially prosecutorial function.'" (quoting State v. 

Wallace, 146 N.J. 576, 582 (1996))).

A prosecutor makes a tailored assessment of a defendant's

individualized "'amenability to correction' and potential 

'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J.

507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b)). If rejected from 

PTI, a defendant may challenge the State's decision before the 
6 A-4924-15T2

court, by showing facts or materials demonstrating the defendant's 

amenability to the rehabilitation process, along with any efforts 

to effect behavioral changes to avoid future criminal conduct. 

N.J.S.A. 2C:43-12(d). See also Pressler & Verniero, Current N.J. 

Court Rules, Guideline 2 on R. 3:28 (2017).

The scope of judicial review of a prosecutor's determination

is severely limited, as prosecutors have wide latitude in deciding 

whom to divert into the PTI program and whom to prosecute. Nwobu, 

supra, 139 N.J. at 246. "Judicial review serves to check only the 

'most egregious examples of injustice and unfairness.'" Negran, 

supra, 178 N.J. at 82 (quoting Leonardis, supra, 73 N.J. at 384). 

Thus, a judge may order a defendant into PTI over a prosecutor's 

objection only if the defendant "clearly and convincingly 

establish[es] that the prosecutor's refusal to sanction admission 

into the program was clearly and convincingly based on a patent 

and gross abuse" of discretion. Wallace, supra, 146 N.J. at 582.

The court's analysis must be fact-sensitive and shall 

consider the totality of all facts and circumstances. What 

constitutes a "patent and gross" abuse of discretion was discussed 

by the Supreme Court in Roseman. An abuse of discretion is defined 

as a decision "not premised upon a consideration of all relevant 

factors, . . . based upon a consideration of irrelevant or 

inappropriate factors, or . . . amount[ing] to a clear error of 
7 A-4924-15T2

judgment." Roseman, supra, 221 N.J. at 625 (quoting State v. 

Bender, 80 N.J. 84, 93 (1979)). However, a "patent and gross" 

abuse of discretion is an error that "will clearly subvert the 

goals underlying" PTI. Bender, supra, 80 N.J. at 93. See also

Watkins, supra, 193 N.J. at 520. Only where a patent and gross 

abuse of discretion is shown, may a judge admit the defendant into 

PTI over the prosecutor's objection. Roseman, supra, 221 N.J. at 

625.

On appeal, the State argues the reviewing judge failed to 

apply the heighted standard of review and did not find a patent 

and gross abuse of discretion. The State argues the judge 

erroneously "substituted his judgment for that of the prosecutor." 

In his opinion, the judge concluded the State's denial of 

defendant's PTI application was a "clear error of judgment." He 

cited three reasons: First, defendant "was not the owner of the 

business where the illegal gambling operation was conducted";

although she knew the operation's nature, it was unclear whether 

she actively participated or was merely "complacent in its 

operations." Second, the heavy reliance upon defendant's criminal 

history and "alleged continuing pattern of anti-social behavior" 

led to a determination she was not amenable to reform, which the 

judge found was unsupported, noting the State failed to consider 

defendant had no juvenile record, had completed probation for her 
8 A-4924-15T2

drug offense, and did not reoffend while on probation. Third, the 

State failed to weigh defendant's acceptance of responsibility for 

her actions and current conduct demonstrating a receptiveness to 

rehabilitation, such as her current gainful employment and caring 

for her child.

Following our review, we conclude the court's analysis 

ignored evidence squarely refuting the identified reasons for 

overriding the prosecutor's rejection of defendant's PTI 

application. Regarding the extent of defendant's knowledge and

participation in the scheme, defendant's work area was the location 

of the betting operation and she was the only employee attending 

the business when arrested. Importantly, defendant possessed 

betting slips in her purse and admitted she knew what was going 

on, and understand it was illegal. See State v. Purdy, 51 N.J.

303, 309 (1968) (noting possession of betting slips violates the 

statute); State v. Gawronski, 9 N.J. Super. 51, 53 (App. Div. 

1950) ("[T]he jury may infer guilty knowledge from proof of 

possession of contraband articles in violation of the pertinent 

statute."). Moreover, contrary to the judge's drawn inference, 

there are no facts justifying defendant's conduct. The State's 

evidence refutes any suggestion defendant was "just complacent" 

and shows she was an active participant. 
9 A-4924-15T2

As to her criminal record, at age twenty-one defendant was 

arrested for possessing marijuana and incurred two municipal 

convictions for disorderly conduct. At twenty-four, she was 

indicted for third-degree drug distribution within a school zone, 

for which she was sentenced to three-years probation. Probation 

discharged defendant in January 2012 and within three years, she 

again resorted to illicit activity by participating in the subject 

gambling enterprise.

The facts relied upon by the judge, including defendant had 

no juvenile record, had completed probation, and had no history 

of violating probation, were accurate. However, the judge's 

comments did not weigh defendant's adult criminal record, as 

required by the PTI guidelines. Guideline 3(e) to R. 3:28 states

in pertinent part:

While the [PTI] is not limited to "first 

offenders", defendants who have been 

previously convicted of a criminal offense 

should ordinarily be excluded. Such 

defendants who have . . . irrespective of the 

degree of the crime have completed a term of 

probation, incarceration or parole within five 

years prior to the date of application for 

diversion shall ordinarily not be considered 

for enrollment in PTI except on joint 

application by the defendant and the 

prosecutor. 

[Pressler & Verniero, supra, Guideline 3(e) 

on R. 3:28.]
10 A-4924-15T2

Here, defendant's indictable criminal conduct was motivated 

by monetary gain. She asserts no history of drug use, yet was 

previously sentenced for selling drugs. The State's evidence 

shows within five years of completing probation, defendant took a 

job in which she actively aided an illicit sports betting 

operation. The evidence supported the State's position that prior 

diversionary efforts were ineffective to deter defendant from 

engaging in criminal activity. 

The judge also failed to assess the State's reliance on the 

nature of the offenses charged. The gambling offenses occurred 

over a period of time and, as noted by the records seized, involved 

numerous individuals, who regularly participated in betting. 

Although we agree the offenses were not violent, we reject the 

notion they were victimless crimes. Society's interest in 

deterrence along with defendant's criminal history suggest a need 

for prosecution and the more intense supervisory treatment 

afforded by a probationary sentence. 

In addition to not examining all facts in light of the law, 

the judge also failed to explain his reasoning, especially his 

conclusion the prosecutor's denial of admission subverted the 

goals of PTI. R. 1:7-4. We cannot infer this conclusion from the

record. 
11 A-4924-15T2

There is one issue on which we agree, that is, the State 

failed to consider all relevant factors. See Nwobu, supra, 139 

N.J. at 255 ("[A] prosecutor must consider an individual 

defendant's features that bear on his or her amenability to 

rehabilitation."). We conclude, however, this alone is 

insufficient to order defendant's admission to PTI. 

The State determined PTI would not curb defendant's future

criminal conduct, and more restrictive probation supervision was

necessary. Yet in doing so, the State did not address changes 

made to defendant's behavior since her arrest, which suggest 

amenability to rehabilitation, including her acknowledgement of 

responsibility, the maintenance of legal employment and the 

provision of care for her child. Considerations of a defendant's 

attitude and conduct to avoid criminal conduct must be weighed

under Guideline 2 to R. 3:28, which should consider facts rendering 

diversion to PTI effective. 

Following our review, we conclude the State's recital of its 

reasons for denying defendant's PTI application failed to consider 

defendant's post-arrest actions that militate toward defendant's 

"'amenability to correction' and potential 'responsiveness to 

rehabilitation.'" Watkins, supra, 193 N.J. at 520 (quoting 

N.J.S.A. 2C:43-12(b)). The failure to consider these significant 

facts required the State's reconsideration and reassessment. 
12 A-4924-15T2

We disagree with the trial judge's order concluding the 

State's omission of relevant information was a basis to compel 

defendant's PTI admission. Rather "the appropriate remedy for an 

inadequate statement of reasons by the prosecutor is to require 

further consideration of the omitted facts. Roseman, supra, 221 

N.J. at 629. 

Consequently, we reverse the opinion and vacate the June 30, 

2016 order admitting defendant to PTI. We remand for additional 

proceedings to require the prosecutor to amend the individualized 

assessment of defendant's application. Particular attention must 

be made to consider evidence supporting satisfaction of N.J.S.A.

2C:43-12(b), showing defendant was "amenab[le] to correction" and 

responsive to rehabilitation if admitted to PTI.

Reversed and remanded. We do not retain jurisdiction.