1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized.)

State v. William Roseman and Lori Lewin (A-105/106-13) (073674)

Argued March 2, 2015 -- Decided June 18, 2015

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court considers whether denial of defendants’ applications to Pretrial Intervention (PTI) 

by the prosecutor was a patent and gross abuse of discretion. 

Defendants William Roseman and Lori Lewin were married from 1992 until 2000, during which time 

Roseman was the Mayor of Carlstadt. As his wife, Lewin was entitled to, and received, benefits under Carlstadt’s 

plan of health, prescription and dental insurance (Carlstadt’s plan). After their divorce, each was responsible for 

their own health insurance pursuant to the divorce decree; Roseman and the son of the marriage would remain on 

Carlstadt’s plan and Lewin was to be provided health insurance coverage through her employer. Roseman notified a 

Carlstadt payroll clerk, who also served as the Assistant to the Insurance Officer, of the divorce. At the direction of 

the clerk, Roseman changed his W-4 tax form to reflect that he was no longer married, but the clerk failed to remove 

Lewin’s name from Carlstadt’s plan. As a result, following the divorce, Lewin remained on Carlstadt’s plan, in 

addition to her own employer-provided health insurance plan. 

In late 2007, while transitioning to a new dental plan, Roseman discovered that Lewin was listed as an 

insured under Carlstadt’s plan after the divorce. Roseman promptly reported this error to the town council, had 

Lewin removed from the plan, and initiated an internal audit of policy holders to detect other inaccuracies. The 

audit revealed that three former wives of city employees and five over-age children, were also improperly listed as 

insureds under Carlstadt’s plan. Lewin resubmitted to her employer’s health insurance carrier all of her medical, 

prescription and dental claims that had been paid by Carlstadt’s insurance providers after the divorce. As a result, 

Carlstadt’s insurance providers were repaid by Lewin’s insurance plan for all re-submitted claims that were not 

time-barred, and Lewin made direct restitution to Carlstadt’s insurance providers for the time-barred claims.

In July 2009, Roseman and Lewin were indicted on one count each of third-degree conspiracy, third-degree 

theft by deception, and second-degree official misconduct. Even though other individuals also were eligible to 

improperly receive benefits under Carlstadt’s plan, Roseman and Lewin were the only individuals prosecuted. 

Roseman and Lewin rejected a plea offer and applied for admission into PTI. Initially, Roseman was rejected for 

PTI, but after he informed the prosecutor that he would agree to resign and be subject to a lifetime disqualification 

from office in exchange for PTI, approval of the agreement was sought and obtained by the prosecutor from the 

Attorney General’s office. The prosecutor also expressed his willingness to dismiss the indictment against Lewin if 

Roseman was admitted into PTI under those conditions. Subsequently, defendants reconsidered and rejected the 

conditioned PTI offer, and Roseman filed a motion to dismiss the indictment.

The trial court dismissed the official misconduct charges, but refused to dismiss the remaining charges. 

The State was granted leave to file an interlocutory appeal. The Appellate Division reversed the trial judge and 

reinstated the official misconduct counts of the indictment. Defendants efforts to resolve the matter failed because

Roseman refused to resign and agree never to pursue public office in the future as conditions to any agreement. As 

a result, the prosecutor rejected in writing both defendants’ PTI applications, citing the presumption against PTI for 

second-degree offenses under the Guidelines for PTI provided in Rule 3:28 and eleven of the seventeen factors listed 

in N.J.S.A. 2C:43-12(e), including the “nature of the offense,” the “facts of the case,” the “likelihood that the 

applicant’s crime is related to a condition or situation that would be conducive to change” through PTI, and 

“[w]hether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the 

public need for prosecution.” 

The trial judge, over the objection of the prosecutor, ordered that Roseman and Lewin be admitted into PTI 
2

without conditions, finding that the prosecutor’s decision to deny PTI was a patent and gross abuse of discretion. 

The State appealed. In an unpublished opinion, the Appellate Division reversed. The panel found that Roseman had 

failed to establish by clear and convincing evidence that the prosecutor patently and grossly abused his discretion. 

As to Lewin, the panel remanded the matter for an individualized assessment. The Supreme Court granted 

defendants’ petitions for certification. 218 N.J. 274 (2014). 

HELD: Defendants have demonstrated extraordinary circumstances to overcome the presumption against Pretrial 

Intervention (PTI) for second-degree offenses and there is no factual justification for the application of the factors 

set forth by the prosecutor under N.J.S.A. 2C:43-12(e). Denial of defendants’ applications to Pretrial Intervention 

(PTI) by the prosecutor was plainly a patent and gross abuse of discretion. 

1. The assessment of a defendant’s suitability for PTI must be conducted under the Guidelines for PTI provided in 

Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e). Additionally, a PTI determination 

requires that the prosecutor make an individualized assessment of the defendant considering his or her “‘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)). N.J.S.A. 2C:43-12(b) and Guideline 3(i) specify a presumption against PTI for any first- or 

second-degree crime and any crime that is a breach of the public trust. Regardless of the statutory presumptions, a 

criminal defendant can show that PTI is nonetheless warranted through “facts or materials demonstrating the 

defendant’s amenability to the rehabilitation process.” Pressler & Verneiro, Current N.J. Court Rules, Guideline 2 

on R. 3:28, at 1167. Presumptions against PTI reflect an assumption that certain defendants “have committed 

crimes that are, by their very nature, serious or heinous and with respect to which the benefits of diversion are 

presumptively unavailable.” Watkins, supra, 193 N.J. at 523. Accordingly, this Court has stated that overcoming 

these presumptions requires showing “something extraordinary or unusual” about the defendant’s background. State 

v. Nwobu, 139 N.J. 236, 252-253 (1995). (pp. 9-12)

2. To overcome the “presumption of incarceration for first- and second-degree offenders,” there must be “‘truly 

extraordinary and unanticipated circumstances’ when the sentencing court finds that a ‘serious injustice’ exists.” 

Nwobu, supra, 139 N.J. at 252. In Nwobu, the Court made clear that this is a fact-sensitive analysis that requires 

consideration of “idiosyncratic” circumstances demonstrating that denial of PTI has resulted in a “serious injustice.” 

Id. at 252. Even if “extraordinary and unusual” circumstances exist to overcome the presumption against admission 

into PTI for certain offenses, this Court has recognized that PTI is essentially an extension of the charging decision, 

therefore the decision to grant or deny PTI is a “quintessentially prosecutorial function.” State v. Wallace, 146 N.J.

576, 582 (1996). Trial courts may overrule a prosecutor’s decision to accept or reject a PTI application only when 

the circumstances “‘clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the 

program was based on a patent and gross abuse of . . . discretion.’” Ibid. (pp. 12-16) 

3. The circumstances presented in this case are compelling and idiosyncratic. The criminal violations were 

essentially self-reported, and occurred through an administrative error after Roseman correctly advised the clerk of 

his marital status change and noted the change on his W-4 form. Lewin’s claims that were paid under Carlstadt’s 

plan were never personally submitted by Lewin or Roseman. Lewin’s correct health-care provider made restitution 

on all timely claims, and Lewin personally made restitution in the full amount of all time-barred claims. The Court

finds these factual circumstances sufficiently “extraordinary and unusual” to overcome the presumption against PTI 

for second-degree offenses. (pp. 16-18)

4. There is no factual justification for the application of the factors set forth by the prosecutor under N.J.S.A. 2C:43-

12(e). The prosecutor merely parrots the statutory language, and presents bare assertions regarding Roseman’s 

amenability to PTI. The record establishes that: (1) Roseman was not at fault for the initial reporting error; (2) upon 

discovering the error he, without prompting, advised the Carlstadt Town Council; and (3) Roseman took several 

steps to address the problem. Thus, there are “extraordinary and unusual” circumstances evincing that denial of 

Roseman’s PTI application was plainly a patent and gross abuse of discretion. Although the appropriate remedy for 

an inadequate statement of reasons by the prosecutor would ordinarily be to remand the matter, under the 

circumstances, the Court is constrained to reverse the prosecutor’s decision and compel admission of Roseman into 

PTI. Also, the prosecutor’s letter objecting to Lewin’s PTI application reveals that the assessment of Lewin was 

entirely dependent on Roseman, thereby depriving Lewin of an individualized assessment. (pp. 18-24)
3

The judgment of the Appellate Division is REVERSED and the trial court’s order compelling defendants’ 

admission into the Bergen County Pretrial Intervention Program is REINSTATED. 

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and FERNANDEZ-VINA; 

and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did 

not participate. 
1

SUPREME COURT OF NEW JERSEY

A-105/106 September Term 2013

073674

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM ROSEMAN and LORI 

LEWIN,

Defendants-Appellants.

Argued March 2, 2015 – Decided June 18, 2015

On certification to the Superior Court, 

Appellate Division.

Patricia M. Prezioso argued the cause for 

appellant William Roseman (McCusker, 

Anselmi, Rosen & Carvelli, attorneys; Ms. 

Prezioso and Sarah L. Fehm, on the briefs).

Alan L. Zegas argued the cause for appellant 

Lori Lewin (Law Offices of Alan L. Zegas, 

attorney; Mr. Zegas and Stephanie G. Forbes, 

on the briefs).

Catherine A. Foddai, Senior Assistant

Prosecutor, argued the cause for respondent 

(John L. Molinelli, Bergen County 

Prosecutor, attorney).

Sarah E. Ross, Deputy Attorney General, 

argued the cause for amicus curiae Attorney 

General of New Jersey (John J. Hoffman, 

Acting Attorney General, attorney).

JUSTICE SOLOMON delivered the opinion of the Court.

We are called upon to determine whether denial of 

defendants’ applications to Pretrial Intervention (PTI) by the 
2

prosecutor was a patent and gross abuse of discretion. For the 

reasons set forth below, we reverse the judgment of the 

Appellate Division and reinstate the trial court’s order 

compelling defendants’ admission into the Bergen County Pretrial 

Intervention Program over the objection of the prosecutor.

I.

The record of the trial court proceedings reveals the 

following. Defendants William Roseman and Lori Lewin were 

married from 1992 until 2000, during which time Roseman was 

elected the Mayor of Carlstadt. As his wife, Lewin was entitled 

to, and received, medical, dental and prescription benefits 

under Carlstadt’s plan of health, prescription and dental 

insurance (Carlstadt’s plan). After their divorce, each was 

responsible for their own health insurance pursuant to the 

divorce decree; Roseman and the son of the marriage would remain

on Carlstadt’s plan and Lewin was to be provided health 

insurance coverage through her own employer. Roseman notified a 

Carlstadt payroll clerk, who also served as the Assistant to the 

Insurance Officer, of the divorce. At the direction of the 

clerk, Roseman changed his W-4 tax form to reflect that he was 

no longer married, but Lewin’s name was not removed from 

Carlstadt’s plan. During the investigation of this matter by 

the prosecutor’s office, the clerk told investigators that she 
3

failed to remove Lewin from Carlstadt’s plan because the issue 

had simply “slipped her mind.” As a result of this

administrative error, following the divorce, Lewin remained on 

Carlstadt’s plan, in addition to her own employer-provided 

health insurance plan. 

Some of Lewin’s health care providers who supplied services 

to Lewin during the marriage, had health insurance information 

for both Lewin’s insurance plan and Carlstadt’s plan, and 

continued to submit claims under Carlstadt’s plan following the

divorce. Between 2000 and 2007, approximately one hundred

explanation of benefit (EOB) forms addressed to Roseman were 

sent to the marital residence where Lewin continued to reside

following the divorce; thirteen of those EOB forms listed claims

against Carlstadt’s plan for services provided to Lewin. 

In late 2007, Carlstadt changed its dental insurance plan, 

requiring Roseman to submit forms transferring himself and his 

son to the new dental plan. After reviewing the forms, the 

Carlstadt Insurance Administrator inquired as to why Lewin was 

not listed as an insured of the dental plan, and Roseman advised 

that he and Lewin were divorced in 2000. At this time, Roseman 

discovered that Lewin was listed as an insured under Carlstadt’s 

plan after the divorce. Roseman promptly reported this error to 

the town council, had Lewin removed from Carlstadt’s plan, and 

initiated an internal audit of policy holders to detect other 
4

inaccuracies. The audit revealed that three former wives of 

city employees, including the former wives of a deputy police 

chief and a police lieutenant, and five over-age children, were 

also improperly listed as insureds under Carlstadt’s plan.

In order to reimburse Carlstadt’s health insurance 

provider, Lewin resubmitted to her employer’s health insurance 

carrier all of her medical, prescription and dental claims that 

had been paid by Carlstadt’s insurance providers after the 

divorce. As a result, Carlstadt’s insurance providers were 

repaid by Lewin’s insurance plan for all re-submitted claims 

that were not time-barred, and Lewin made direct restitution to 

Carlstadt’s insurance providers for the time-barred claims.

The investigation by the Bergen County Prosecutor’s Office 

began in this matter when it was informed by a former 

councilmember that Lewin had been receiving medical benefits 

under Carlstadt’s plan following her divorce from Roseman. 

After the investigation by the prosecutor’s office, Roseman and 

Lewin were indicted in July 2009 on one count each of thirddegree conspiracy, N.J.S.A. 2C:5-2; third-degree theft by 

deception, N.J.S.A. 2C:20-4; and second-degree official 

misconduct, N.J.S.A. 2C:30-2a. Even though eight other 

individuals also were eligible to improperly receive benefits 

under Carlstadt’s plan, Roseman and Lewin were the only 

individuals prosecuted.
5

The prosecutor extended plea offers of probationary 

sentences to both Roseman and Lewin in exchange for guilty pleas 

to the third-degree theft by deception charge. The plea offer

extended to Roseman also required that he admit guilt, resign 

from office, and sign a consent order preventing him from 

holding any political office in the future. 

Both Roseman and Lewin rejected the offer and applied for 

admission into PTI. Initially, Roseman was rejected for PTI,

but after he informed the prosecutor that he would agree to 

resign and be subject to a lifetime disqualification from office 

in exchange for the prosecutor’s consent to his PTI application, 

approval of the agreement was sought and obtained by the 

prosecutor from the Attorney General’s office. The prosecutor 

also expressed his willingness to dismiss the indictment against 

Lewin if Roseman was admitted into PTI under those conditions. 

Subsequently, defendants reconsidered and rejected the 

conditioned PTI offer, and Roseman hired new counsel who filed a 

motion to dismiss the indictment.

Before the motion to dismiss was decided, the grand jury 

delivered a superseding indictment adding one additional count

of each offense charged against each defendant. Thereafter,

Roseman amended his motion to dismiss to reflect these new 

charges. On the motion to dismiss, the trial judge dismissed 
6

the official misconduct charges, but refused to dismiss the 

remaining charges.

The State was granted leave to file an interlocutory 

appeal. The Appellate Division reversed the trial judge and 

reinstated the official misconduct counts of the indictment. 

After the interlocutory appeal was decided, defendants initiated 

efforts to resolve the matter, but those efforts failed because 

Roseman refused to resign and agree never to pursue public 

office in the future as conditions to any agreement. 

As a result, the prosecutor rejected in writing both 

defendants’ PTI applications, citing the presumption against PTI 

for second-degree offenses provided by the PTI Guidelines and 

the following factors under N.J.S.A. 2C:43-12(e): the “nature of 

the offense,” N.J.S.A. 2C:43-12(e)(1); the “facts of the case,”

N.J.S.A. 2C:43-12(e)(2); the “motivation and age” of the 

defendants, N.J.S.A. 2C:43-12(e)(3); the “desire of the 

complainant or victim to forego prosecution,” N.J.S.A. 2C:43-

12(e)(4); the “existence 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,” N.J.S.A. 2C:43-12(e)(5); the “likelihood that the 

applicant’s crime is related to a condition or situation that 

would be conducive to change” through PTI, N.J.S.A. 2C:43-

12(e)(6); the “needs and interests of the victim and society,” 
7

N.J.S.A. 2C:43-12(e)(7); a “continuing pattern of anti-social 

behavior,” N.J.S.A. 2C:43-12(e)(8); the failure to prosecute 

“would exacerbate social problems,” N.J.S.A. 2C:43-12(e)(11);

“[w]hether or not the crime is of such a nature that the value 

of supervisory treatment would be outweighed by the public need 

for prosecution,” N.J.S.A. 2C:43-12(e)(14); and “[w]hether 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,” N.J.S.A. 2C:43-

12(e)(17).

Following written rejection of defendants’ PTI applications 

but before trial, the trial judge, over the objection of the 

prosecutor, ordered that Roseman and Lewin be admitted into PTI 

without conditions because the “State’s decision objecting to 

defendants’ entry into PTI [was] not premised upon a 

consideration of all relevant factors and [was] a clear error in 

judgment that constitutes a patent and gross abuse of 

discretion.” The State filed a notice of appeal. 

In an unpublished opinion, the Appellate Division reversed 

the order of the trial judge that directed defendants’

admissions into PTI over the prosecutor’s objection. The panel 

found that the prosecutor “was entitled to rely on the 

presumptions against PTI for second-degree offenses and for 

offenses committed by a public official,” and that Roseman had 
8

failed to establish by clear and convincing evidence that the 

prosecutor patently and grossly abused his discretion in denying 

Roseman’s PTI application. As to Lewin, the panel found that 

“the absence of an individual assessment of [her] 

circumstances,” and the fact that “consideration of Lewin’s 

eligibility for PTI was repeatedly linked to Roseman’s,” 

required remand for an individualized assessment of Lewin’s PTI

application.

This Court granted certification to determine whether the 

prosecutor’s denial of defendants’ PTI applications constituted 

a patent and gross abuse of discretion justifying the trial 

court’s admission of defendants into PTI over the objection of 

the prosecutor. 218 N.J. 274 (2014).

II.

Defendants maintain that they established by “clear and 

convincing” evidence that the prosecutor abused his discretion 

in denying their PTI applications. Therefore, defendants submit 

that the Appellate Division’s decision reversing the trial 

court’s order gives prosecutors “unbridled discretion” to deny 

PTI. Defendants also argue that the Appellate Division’s 

holding amounts to a per se rule that persons charged with 

official misconduct cannot be admitted into PTI unless the 

prosecutor consents, and that such a per se rule violates the 

PTI Guidelines. 
9

Furthermore, defendants claim that by relying on the 

presumption against admission into PTI for second-degree 

official misconduct, and by relying solely on Roseman’s actions 

to deny Lewin’s application, both defendants were deprived of 

individualized assessments of their amenability to 

rehabilitation through PTI in violation of the PTI Guidelines. 

Defendants argue that the State’s lack of an individualized 

assessment of each application amounts to an abuse of 

discretion.

The State contends that the trial court improperly 

substituted its judgment for that of the prosecutor and failed 

to afford sufficient deference to the prosecutor’s denial of 

defendants’ PTI applications by compelling their admission into 

PTI. The State maintains that the prosecutor’s denial was 

entitled to deference because he properly considered all 

relevant factors pursuant to N.J.S.A. 2C:43-12(e). Thus, the 

State claims that the prosecutor’s denial of defendants’ PTI 

applications does not constitute an abuse of discretion.

Lastly, the State argues that defendants’ PTI applications were 

untimely pursuant to Rule 3:28.

III.

A.

We begin by discussing the historical background of PTI and 

its purpose. PTI is a “diversionary program through which 
10

certain offenders are able to avoid criminal prosecution by 

receiving early rehabilitative services expected to deter future 

criminal behavior.” State v. Nwobu, 139 N.J. 236, 240 (1995). 

PTI was established initially by Rule 3:28 in 1970. State v. 

Watkins, 193 N.J. 507, 517 (2008) (citing State v. Leonardis, 71 

N.J. 85, 103 (1976) [hereinafter Leonardis I]). In 1979, the 

Legislature incorporated PTI into the overhaul of the criminal 

codes, establishing PTI as a statewide program pursuant to 

N.J.S.A. 2C:43-12. Ibid. Thus, PTI programs are “governed 

simultaneously by the Rule and the statute which ‘generally 

mirror[]’ each other.” Ibid. (quoting State v. Wallace, 146 

N.J. 576, 582 (1996) (citations omitted)).

Pursuant to the procedures and guidelines established by

Rule 3:28 and N.J.S.A. 2C:43-12, acceptance into PTI is 

dependent upon an initial recommendation by the Criminal 

Division Manager and consent of the prosecutor. The assessment 

of a defendant’s suitability for PTI must be conducted under the 

Guidelines for PTI provided in Rule 3:28, along with 

consideration of factors listed in N.J.S.A. 2C:43-12(e). These 

factors include “the details of the case, defendant’s motives, 

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

employment performance[.]” Watkins, supra, 193 N.J. at 520; see

N.J.S.A. 2C:43-12(e). Additionally, a PTI determination 

requires that the prosecutor make an individualized assessment 
11

of the defendant considering his or her “‘amenability to 

correction’ and potential ‘responsiveness to rehabilitation.’” 

Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)). 

While all defendants may apply for admission into PTI, 

N.J.S.A. 2C:43-12(b), the PTI Guidelines provide several 

statutory presumptions against PTI when defendants have 

committed certain offenses, see Watkins, supra, 193 N.J. at 513. 

Relevant to the present case, N.J.S.A. 2C:43-12(b) specifies a 

statutory presumption against PTI for “a defendant who was a 

public officer or employee whose offense involved or touched 

upon his public office or employment.” Similarly, Guideline 

3(i) identifies a presumption against PTI for any first- or 

second-degree crime, as well as any crime that is a breach of 

the public trust. Pressler & Verniero, Current N.J. Court 

Rules, Guideline 3(i) on R. 3:28, at 1169 (2015) (stating 

persons charged with first- or second-degree crimes “should 

ordinarily not be considered for enrollment in a PTI program 

except on joint application by the defendant and the

prosecutor”).

Regardless of the statutory presumptions, “[e]ligibility 

for PTI is broad enough to include all defendants who 

demonstrate sufficient effort to effect necessary behavioral 

change and show that future criminal behavior will not occur.” 

Pressler & Verneiro, supra, Guideline 2 on R. 3:28, at 1167. 
12

When a statutory presumption against PTI applies, as here, a 

criminal defendant can show that PTI is nonetheless warranted 

through “facts or materials demonstrating the defendant’s 

amenability to the rehabilitation process.” Ibid. To overcome 

the statutory presumption against PTI the defendant must “show[] 

compelling reasons justifying . . . admission, and establish[] 

that a decision against enrollment would be arbitrary and 

unreasonable.” Ibid. Presumptions against PTI reflect an 

assumption that certain defendants “have committed crimes that 

are, by their very nature, serious or heinous and with respect 

to which the benefits of diversion are presumptively 

unavailable.” Watkins, supra, 193 N.J. at 523. Accordingly, 

this Court has stated that overcoming these presumptions 

requires showing “something extraordinary or unusual” about the 

defendant’s background. Nwobu, supra, 139 N.J. at 252-53.

B.

Our discussion in Nwobu, supra, 139 N.J. 236, of the 

special circumstances required to overcome the presumption 

against acceptance into PTI is instructive. In that case, we 

noted the fact “[t]hat Nwobu is charged with a second-degree 

crime is the single most important factor involved.” Id. at 

252. This Court then compared the issue of Nwobu’s admission 

into PTI to the related context of criminal sentencing, and 

stated that to overcome the “presumption of incarceration for 
13

first- and second-degree offenders,” there must be “‘truly 

extraordinary and unanticipated circumstances’ when the 

sentencing court finds that a ‘serious injustice’ exists.” 

Ibid. (quoting State v. Roth, 95 N.J. 334, 358 (1984)). Such a 

showing requires more than just “that the accused is a firsttime offender and has admitted or accepted responsibility for 

the crime.” Id. at 252-53.

The prosecutor in Nwobu rejected the defendant’s PTI 

application based upon the following: the statutory presumption 

against admission into PTI for second-degree offenders; that the 

offense constituted “a continuing pattern of anti-social 

behavior”; and that “PTI would fail to serve as a sufficient 

sanction or deterrent.” Id. at 241. In Nwobu, where defendant 

had been charged with second-degree theft by deception and was 

seeking to overcome rejection of his PTI application by the 

prosecutor, we found “nothing extraordinary or unusual” to 

overcome the presumption against admission into PTI. Id. at 

241, 253. We rejected Nwobu’s contentions that his status as a 

first-time offender and his assertions that he played a 

relatively minor role in the fraud rendered the prosecutor’s 

denial of his application a patent and gross abuse of 

discretion. Id. at 252-53.
14

In a matter consolidated with Nwobu1, we affirmed the 

prosecutor’s decision to deny PTI applications by three 

defendants who had been charged with throwing firecrackers into 

a crowd of people, second- and third-degree offenses. Id. at 

255-56. As with Nwobu, we rejected the contentions that, 

because defendants were first-time offenders and were otherwise 

productive citizens, the prosecutor’s decision amounted to a 

patent and gross abuse of discretion. Ibid. “Denying PTI to 

those who intentionally throw destructive devices into a crowd 

reflects legitimate considerations that are supported by the 

Guidelines.” Id. at 256.

Nwobu did not establish a standard for “extraordinary and 

unusual” circumstances. To the contrary, we made clear that 

this is a fact-sensitive analysis that requires consideration of 

“idiosyncratic” circumstances demonstrating that denial of PTI 

has resulted in a “serious injustice.” Id. at 252; accord State 

v. Jabbour, 118 N.J. 1, 7 (1990).

C.

Even if “extraordinary and unusual” circumstances exist to 

overcome the presumption against admission into PTI for certain 

offenses, this Court has recognized that PTI is essentially an 

 

1 The second case, State v. Callender, was consolidated with 

Nwobu in order to adjudicate whether the prosecutors in both 

cases “arbitrarily rejected defendants’ admission into Pretrial 

Intervention programs[.]” Nwobu, supra, 138 N.J. at 240. 
15

extension of the charging decision, therefore the decision to

grant or deny PTI is a “quintessentially prosecutorial 

function.” Wallace, supra, 146 N.J. at 582. As a result, the 

prosecutor’s decision to accept or reject a defendant’s PTI 

application is entitled to a great deal of deference. State v. 

Leonardis, 73 N.J. 360, 381 (1977) [hereinafter Leonardis II]. 

Trial courts may overrule a prosecutor’s decision to accept or 

reject a PTI application only when the circumstances “‘clearly 

and convincingly establish that the prosecutor’s refusal to 

sanction admission into the program was based on a patent and 

gross abuse of . . . discretion.’” Wallace, supra, 146 N.J. at 

582 (quoting Leonardis II, supra, 73 N.J. at 382). In State v. 

Bender, 80 N.J. 84, 93 (1979), this Court defined a “patent and 

gross abuse of discretion” in the context of a prosecutor’s 

denial of a PTI application:

Ordinarily, an abuse of discretion will be 

manifest if 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.
16

Where a defendant can make that showing, a trial court may admit 

a defendant, by order, into PTI over the prosecutor’s objection. 

State v. Dalglish, 86 N.J. 503, 513 (1981). 

IV.

A.

Initially, this Court will dispose of the State’s 

timeliness argument. It is undisputed that both defendants

applied to PTI within twenty-eight days of their indictment in 

accordance with Rule 3:28. Nevertheless, the State argues that

defendants’ PTI applications were untimely because the trial 

judge reopened discussions of defendants’ PTI admission more 

than two years after the indictment, and after defendants’ 

applications had been rejected by the prosecutor. 

It is “abundantly clear that, provided a defendant files a 

timely application for PTI as required by R. 3:28(h), the denial 

of his or her application may be reviewed prior to trial, and 

may also be reviewed on direct appeal following conviction2

either after trial or the entry of a guilty plea.” State v. 

Halm, 319 N.J. Super. 569, 579 (App. Div.), certif. denied, 162 

 

2 We note that in State v. Bell, 217 N.J. 336 (2014), where the 

co-defendant Schwab timely applied and was admitted to PTI, we 

rejected as untimely defendant Bell’s PTI application made more 

than three years after indictment, and after defendant proceeded 

to trial and was convicted of third degree attempted aggravated 

assault.
17

N.J. 131 (1999). The applications for PTI that led to this 

dispute were properly filed by defendants within the twentyeight days provided by the Rule, and were properly treated by 

the trial judge as reconsideration of previous applications, 

rather than new, untimely applications.

B.

Turning to the considerations and presumptions relevant to 

this case, defendants were charged with second-degree official 

misconduct, which creates a presumption against acceptance into 

PTI under both the Guidelines and N.J.S.A. 2C:43-12(b). State 

v. Caliguiri, 158 N.J. 28, 42 (1999). However, the presumption 

is rebuttable upon a “showing [of] compelling reasons justifying 

the applicant’s admission and establishing that a decision 

against enrollment would be arbitrary and unreasonable.” 

Pressler & Verniero, supra, Guideline 3(i) to R. 3:28, at 1169. 

The question before us is whether there were compelling reasons 

to overcome the presumption against defendants’ admission into 

PTI. 

The circumstances presented here are compelling and 

idiosyncratic. The criminal violations were essentially selfreported, and occurred through an administrative error after 

Roseman correctly advised the clerk of his marital status change 

and noted the change on his W-4 form. Upon discovery, Roseman 

took immediate action to ameliorate the problem by removing 
18

Lewin from Carlstadt’s plan and initiating an internal audit of 

all Carlstadt health insurance policy holders. Lewin’s claims 

that were paid under Carlstadt’s plan were never personally 

submitted by Lewin or Roseman. Rather, the claims were 

submitted by Lewin’s health-care providers who had both 

insurance plans on file. Lewin’s correct health-care provider 

made restitution on all timely claims, and Lewin personally made 

restitution in the full amount of all time-barred claims. 

We find these factual circumstances sufficiently 

“extraordinary and unusual” to overcome the presumption against 

PTI for second-degree offenses. However, our finding that 

defendants have demonstrated extraordinary circumstances to 

overcome the presumption against PTI for second-degree offenses 

does not end our inquiry. Defendants’ applications must still 

be evaluated under the factors provided in N.J.S.A. 2C:43-12(e)

to determine whether the prosecutor’s denial was a patent and 

gross abuse of discretion.

C.

A prosecutor’s decision to deny a defendant’s PTI 

application is a “patent and gross abuse of discretion” if the 

prosecutor’s decision “failed to consider all relevant factors, 

was based on irrelevant or inappropriate factors, or constituted 

a ‘clear error in judgment.’” Nwobu, supra, 139 N.J. at 247 

(quoting Bender, supra, 80 N.J. at 93). “Additionally, an abuse 
19

of discretion is ‘patent and gross’ if it is shown ‘that the 

prosecutorial error complained of will clearly subvert the goals 

underlying [PTI].’” Ibid.

As noted previously, the State cites factors one through 

eight, eleven, fourteen, and seventeen of the PTI statute, 

N.J.S.A. 2C:43-12(e), in support of its denial of Roseman’s PTI 

application. However, there is no factual justification for the 

application of those factors set forth by the prosecutor in the 

record, which includes the prosecutor’s written denial of 

Roseman’s PTI application. Rather, the statement of reasons 

provided by the prosecutor merely parrots the statutory 

language, and presents bare assertions regarding Roseman’s 

amenability to PTI. 

For example, the State fails to provide any factual support

for its conclusions in the letter denying Roseman’s PTI 

application that: (1) denial of Roseman’s PTI application was 

justified, in part, by his “motivation and age”; (2) “there may 

exist personal problems or character traits which may be related 

to the defendant’s crime, given the length of time this scheme 

continued and for which services are unavailable or insufficient 

within the criminal justice system, or it is probable that the 

causes of defendant’s criminal behavior cannot be controlled by 

proper treatment effectively through the supervisory treatment 

program”; and (3) “the crimes appear to constitute part of a 
20

continuing pattern of defendant’s anti-social behavior, since 

these were repeated thefts committed over many years.” 

The State relies heavily on the nature of defendants’ 

alleged wrongdoing and the facts of the case in arguing that 

defendants committed theft by deception over a long period of 

time and that Roseman, by virtue of the EOB forms, was aware 

that Lewin remained on the policy. However, the only evidence 

on the subject that is of record establishes that: (1) Roseman 

was not at fault for the initial reporting error; (2) upon 

discovering the error he, without prompting, advised the

Carlstadt Town Council; and (3) Roseman took several steps to 

address the problem, including immediately removing Lewin from 

the plan and initiating an internal audit of all policy holders 

under Carlstadt’s plan. Thus, the record directly contradicts 

the State’s assertion that the nature and facts of the case 

militate in favor of prosecution.

Indeed, contrary to the prosecutor’s findings, the unusual 

facts presented here suggest that Roseman would have been

particularly amenable to PTI. Furthermore, while the Borough of 

Carlstadt would seem to have a legitimate interest in pursuing a

prosecution alleging theft of public funds, N.J.S.A. 2C:43-

12(e)(7), the prosecutor’s reliance upon this factor is refuted 

by the State’s decision to prosecute only defendants even though

three ex-wives and five adult children of city employees also 
21

were eligible to improperly receive benefits under Carlstadt’s

plan. Moreover, given Roseman’s self-reporting, prompt 

remediation, and stroke that occurred since his indictment in 

2009 and caused partial vision and memory loss, it is difficult 

to conceive of how the prosecutor decided that: “[t]here is a 

likelihood that the defendant’s crime is related to a condition 

or situation that would not be conducive to change through his 

participation in supervisory treatment”; “[f]ailure to prosecute 

would exacerbate the social problems that led to the defendant’s 

criminal act [because] [w]ithout prosecution, those who engage 

in criminal behavior, particularly against public entities, may 

believe it is acceptable conduct or that the benefit of such 

conduct outweighs the penalties,” or even what those social 

problems were; how the “value of supervisory treatment would be 

outweighed by the public need for prosecution,” or how “[t]he 

harm done to society by abandoning criminal prosecution would 

outweigh the benefits to society from channeling [defendant] 

into a supervisory treatment program.” Further, the State’s 

assertion that supervisory treatment would be insufficient in 

this case fails to account for the rehabilitative goals of PTI, 

or that defendants are fully employed, productive members of 

their community. 

The prosecutor’s bald declarations are insufficient to 

support denial of Roseman’s PTI application. Nwobu, supra, 139 
22

N.J. at 251. Accordingly, we cannot determine, based on the 

record presented to us, that the factors considered by the 

prosecutor support denial of Roseman’s application. We

therefore conclude the prosecutor’s reliance on the abovereferenced factors was improper.

The prosecutor relied upon irrelevant or inappropriate 

factors, and there are “extraordinary and unusual” circumstances 

evincing that denial of Roseman’s PTI application constituted a 

clear error in judgement. Therefore, we determine that such a 

denial was plainly a patent and gross abuse of discretion that 

“‘clearly subvert the goals underlying [PTI].’” Nwobu, supra, 

139 N.J. at 247 (quoting Bender, supra, 80 N.J. at 93).

Ordinarily, the appropriate remedy for an inadequate 

statement of reasons by the prosecutor would be remand for 

further consideration of a defendant’s PTI application, and the 

opportunity to provide an adequate factual basis for the 

prosecutor’s findings. However, where, as here, nearly six 

years has elapsed since Roseman’s indictment during which time

he suffered a stroke, and circumstances show clearly and 

convincingly that there has been a patent and gross abuse of 

discretion by the prosecutor which constituted a clear error in 

judgment that will “‘subvert the goals underlying [PTI],’” 

ibid., remand is inappropriate. We are therefore constrained to 
23

reverse the prosecutor’s decision and compel admission of 

Roseman into PTI.

D.

We now turn to Lewin’s PTI application. In addition to 

consideration of appropriate, relevant factors in evaluating an 

applicant’s PTI application, we require that “a prosecutor must 

consider an individual defendant’s features that bear on his or 

her amenability to rehabilitation.” Nwobu, supra, 139 N.J. at 

255; see also State v. Sutton, 80 N.J. 110, 119 (1979). 

Disposition of Lewin’s case, whether through plea or PTI, was 

explicitly linked to Roseman’s disposition. The letter from the 

prosecutor listing the factors supporting a denial of Lewin’s 

PTI application is brimming with references to Roseman’s actions 

and contains a nearly identical factor analysis. While the use 

of identical factors for co-defendants’ PTI applications does 

not rob those applicants of an individualized determination, the 

prosecutor’s letter objecting to Lewin’s PTI application reveals 

that the assessment of Lewin was entirely dependent on Roseman, 

disproving any assertion that Lewin received an individualized 

assessment.

V.

For the reasons set forth above, the judgment of the 

Appellate Division is reversed, and the trial court’s order 
24

compelling defendants’ admission into the Bergen County Pretrial 

Intervention Program is reinstated.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, and 

FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join in 

JUSTICE SOLOMON’s opinion. JUSTICE ALBIN did not participate. 

 
SUPREME COURT OF NEW JERSEY

NO. A-105/106 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM ROSEMAN and LORI

LEWIN,

Defendants-Appellants.

DECIDED June 18, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Solomon

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REINSTATE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6