SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4298-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CYNTHIA NGUYEN,

Defendant-Appellant.

Submitted March 25, 2019 – Decided April 12, 2019

Before Judges Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Monmouth County, Indictment No. 

16-10-1737.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Molly O'Donnell Meng, Assistant Deputy 

Public Defender, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County 

Prosecutor, attorney for respondent (Monica L. do 

Outeiro, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Cynthia Nguyen appeals from the trial court's denial of her 

post-plea motion for admission into the Pretrial Intervention (PTI) program over 

the prosecutor's objection. We affirm.

The relevant facts are accurately summarized in the trial court's cogent 

oral decision, as follows: 

[O]n August [7], 2016 Belmar Police were dispatched 

to the Belmar Marina on 10th Avenue to respond to a 

vehicle parked in a travel lane. The vehicle was parked 

facing the wrong direction and [d]ispatch was informed 

that the driver . . . appeared to be asleep or unconscious.

When police arrived at the scene . . . defendant 

woke up and immediately fled eastbound in the 

westbound one-way lane on 10th Avenue. . . . 

[D]efendant went through a red light, [and] made a left 

onto Route 35 north. The police activated their 

overhead lights and siren and followed . . . defendant's 

vehicle onto Route 35 north for several blocks. . . .

[D]efendant ignored several traffic signals and 

committed multiple motor vehicle violations.

When . . . defendant finally stopped her vehicle 

she was approached by the pursuing officer with his 

weapon drawn. . . . [D]efendant ignored the officer's 

request to put her hands up. She kept her hands on the 

steering wheel and stared forward. The officer opened 

the driver's door and removed . . . defendant to place 

her under arrest. . . . [D]efendant did not place her 

vehicle in park and it hit the officer's patrol car. 

Thereafter, defendant was charged in a Monmouth County indictment 

with second-degree eluding, N.J.S.A. 2C:29-2(b). In September 2017, she pled 
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guilty to an amended charge of third-degree eluding. In exchange, the State 

recommended a two-year probationary sentence and agreed to dismiss all

thirteen motor vehicle summonses issued at the time of defendant's arrest. The 

State "ma[de] no promises" regarding defendant's intention to apply for PTI.

Defendant was thirty-nine years old and unemployed at the time of her 

application. During the course of her interview with the PTI investigator, 

defendant acknowledged "she was under the influence of her prescription 

medication at the time of her arrest" for the present offense. She said she was 

diagnosed with depression in 2012, hospitalized for two weeks as a result, and 

thereafter prescribed Adderall and Risperdal. In particular, she claimed she 

suffered from Post-Traumatic Stress Disorder (PTSD), but "declined to discuss

any of the details of her PTSD." 

The program director denied defendant's application citing, among other 

reasons, her "need [for] more intensive supervision than th[e] diversionary 

program can provide." Specifically, "she would benefit from intensive 

supervision and counseling." The director noted defendant "appeared to be 

having some type of psychological episode as described in the police report"

when she committed the present offense. The director also stated defendant 

failed to appear in court for the present offense, and was apprehended only after 
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she was involved in an incident on a public bus, in which she threatened another 

passenger with a screwdriver. 

In a two-page memorandum, the prosecutor adopted the director's 

findings, and summarized his reasons for likewise denying defendant's 

admission into the program. In doing so, the prosecutor cited six of the 

seventeen applicable factors set forth in N.J.S.A. 2C:43-12(e). 

Initially, the prosecutor cited the "nature of the offense," N.J.S.A. 2C:43-

12(e)(1), and the "facts of the case," N.J.S.A. 2C:43-12(e)(2), noting the danger 

defendant posed "to herself and anyone else who happened to be in her path"

when eluding police. Secondly, the prosecutor cited the "motivation and age of 

the defendant," N.J.S.A. 2C:43-12(e)(3), specifying that defendant had failed to 

appear in court while released on bail for the present offense, which did "not 

inspire confidence that PTI w[ould] be sufficient supervision . . . ." 

Next, the prosecutor quoted 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, 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." N.J.S.A.

2C:43-12(e)(5) (factor five). In citing factor five, the prosecutor reiterated the 
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director's concern that "[d]efendant has mental health issues that are currently 

under[]addressed." 

The prosecutor also cited the "extent to which the applicant's crime 

constitutes part of a continuing pattern of anti-social behavior." N.J.S.A. 2C:43-

12(e)(8) (factor eight). Although the prosecutor acknowledged the remoteness 

of defendant's six prior theft offenses, which were committed in the late 1990s, 

he noted "the volume of [the offenses] demonstrate[d] that the present offense 

is not an aberration." The prosecutor also referenced two arrests by the U.S. 

Park Police in 2012 and 2013 that remained "open" at the time of her application. 

Finally, the prosecutor cited N.J.S.A. 2C:43-12(e)(14), i.e. "[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 prosecutor found "the 

value of supervisory treatment is manifest."

In mitigation, the prosecutor considered "[d]efendant's tragic personal 

history as reported by her" and "her college credits." On balance, however, the 

prosecutor determined the factors weighed against her admission into the PTI 

program.

Defendant appealed to the Law Division, primarily contending the 

prosecutor denied her application based on a consideration of irrelevant factors. 
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Pertinent to this appeal, defendant argued the prosecutor improperly considered 

factors five and eight. Specifically, defendant claimed her prior theft offenses, 

for which she completed unsupervised probation in 1999, were remote. She also 

contended the Park Police charges had been dismissed. Defendant further 

argued the prosecutor's rejection "based upon her current mental health issues 

was a patent and gross abuse of discretion and a clear error in judgment." She 

claimed she had "completed substance abuse and psychological evaluations" and 

"[was] complying with what ha[d] been asked of her."

The trial court upheld the prosecutor's decision to reject defendant's PTI 

application. In rendering its decision, the court recognized its very limited scope 

of review. See State v. Roseman, 221 N.J. 611, 624-25 (2015). Correctly citing 

the legal standards, the court noted it lacked the authority in PTI matters to 

substitute its own discretion for that of the prosecutor, even if it disagreed with 

the prosecutor's decision. See State v. Nwobu, 139 N.J. 236, 253 (1995). The 

court recognized it could reverse a prosecutor's PTI denial only if a defendant 

clearly and convincingly demonstrated that the denial represents "a patent and 

gross abuse of discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (citations 

omitted). 
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Citing Nwobu, the court reiterated that to establish a patent and gross 

abuse of discretion, a defendant must demonstrate "the prosecutor's decision was 

not premised upon a consideration of all relevant factors, was based upon a 

consideration of irrelevant or inappropriate factors, or amounted to a clear error 

in judgment." 139 N.J at 247 (citation omitted); see also Roseman, 221 N.J. at 

625. Importantly, the trial court understood that a patent and gross abuse of 

discretion also required that the "[c]ourt must additionally find that the 

prosecutorial error complained of will clearly subvert the goals underlying 

[PTI]." See State v. Bender, 80 N.J. 84, 93 (1979). 

Applying these well-established standards, the trial court initially agreed 

with defendant that the Park Police charges should not have been considered by 

the prosecutor in finding factor eight because no formal disposition was 

available for those offenses. Nonetheless, the court recognized that in finding 

defendant exhibited a pattern of anti-social behavior, the prosecutor also cited 

defendant's six theft offenses from the mid-1990s. 

Addressing defendant's challenge to the prosecutor's assessment of factor 

five, the court noted the State did not dispute that defendant completed substance 

abuse and mental health evaluations. Rather, the court recognized the 
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prosecutor determined defendant's "refusal to discuss her PTSD with the PTI 

investigator" suggested her mental health issues were under addressed. 

The court also considered defendant's explanation that she eluded police 

"reactively and not deliberately." The court found, however, that "defendant 

still fled the scene with reckless disregard for her safety and the safety of 

others." Ultimately, the court determined the prosecutor's rejection was not a 

patent and gross abuse of discretion, nor was it arbitrary, capricious or 

unreasonable. Accordingly, the court denied defendant's appeal.

Having been sentenced by the trial court to a probationary term of two 

years, consistent with her plea agreement, defendant now solely appeals the trial 

court's PTI ruling. She raises the following point for our consideration:

POINT I

THE PROSECUTOR'S DECISION TO REJECT 

[DEFENDANT]'S PTI APPLICATION 

CONSTITUTED A PATENT AND GROSS ABUSE OF 

DISCRETION.

A. The Prosecutor Inappropriately Considered 

Irrelevant Factors in Rejecting [Defendant]'s 

Application.

B. The Prosecutor's Decision Amounted To A Clear 

Error In Judg[]ment And Subverted The Goals of PTI.
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In particular, defendant claims "[t]he prosecutor's handling of . . . PTI 

factors [five and eight] constituted an abuse of discretion because he 

inappropriately considered [defendant]'s misdemeanor convictions from the 

1990s, two U.S. Park Police arrests, and her mental health problems as reasons 

for rejection." She seeks reversal of the court's order denying her PTI 

application. In the alternative, defendant contends a remand is necessary for the 

prosecutor to further consider her application. Based on our review of the record 

and applicable law, we find her arguments unpersuasive. 

We apply the same standard of review as the trial court, and review the 

court's decision de novo. State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 

2015). Guided by our "severely limited" review, State v. Negran, 178 N.J. 73, 

82 (2003), we determine the prosecutor cogently articulated several reasons for 

denying PTI, and his consideration of irrelevant factors does not warrant a 

reversal or a remand. 

Regarding factor eight, we agree with the trial court that the prosecutor 

improperly considered defendant's two "open" Park Police charges because 

defendant's criminal history report indicates there is "no disposition available"

for both charges, and defendant maintains they were dismissed. See State v. 

K.S., 220 N.J. 190, 199 (2015) (holding a PTI applicant's "prior dismissed 
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charges may not be considered for any purpose" where the facts related to the 

arrest are in dispute, or have not been determined after a hearing). 

Arguably, if the Park Police charges were the only basis for the 

prosecutor's finding of factor eight, we might consider remanding the matter for 

the prosecutor to reconsider defendant's application after determining the 

disposition of those charges. Here, however, the prosecutor also considered the 

"volume" of defendant's prior theft offenses, even though he recognized they 

were committed more than twenty years before commission of the present 

offense. 

Defendant claims her prior theft offenses were so remote they "cannot 

constitute a 'continuing pattern' of anti-social behavior." To support her 

argument, defendant cites our Supreme Court's decision in Negran. Defendant's 

argument is misplaced.

In Negran, the prosecutor rejected the defendant's PTI application for a 

third-degree eluding offense, because his "driving infractions spanned a period 

of seventeen years, and ten years had elapsed since [the] defendant's last motor 

vehicle offense." 178 N.J. at 79. Further, the defendant's "prior [driving while 

intoxicated conviction] had occurred more than thirteen years before" his PTI 
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application. Ibid. The Court thus determined the prosecutor improperly relied 

on defendant's remote motor vehicle violations. Id. at 85. 

Unlike the present matter, however, the defendant in Negran had 

"voluntar[ily] participat[ed] in recent intensive and ongoing alcohol dependency 

rehabilitation, . . . [and] had never been convicted of . . . any disorderly persons 

offense[s.]" Id. at 79. Also unlike the present matter, the issue in Negran was 

the remoteness of motor vehicle violations. Id. at 85. The Court did not consider 

the remoteness of multiple prior misdemeanor or disorderly persons offenses. 

Accordingly, defendant has not demonstrated the prosecutor inappropriately 

considered factor eight in rejecting her application here. 

Nor do we discern any error in the prosecutor's consideration of 

defendant's mental health issues in finding factor five. See K.S., 220 N.J. at 202 

("Because mental health issues impact [a PTI] assessment, the prosecutor is 

required to consider a defendant's mental illness."). Despite defendant's efforts 

to treat her PTSD medically, defendant candidly acknowledged the commission 

of the present offense occurred while "she was under the influence of her 

prescription medication[,]" yet she was reluctant to discuss her PTSD condition. 

Under these circumstances, defendant's ongoing mental health issues present 
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challenges that are best addressed under the umbrella of probation's supervisory 

services and not the limited services provided by the PTI program.

We therefore conclude, as the trial court found, defendant failed to sustain 

her "heavy burden" of demonstrating the prosecutor's rejection of her PTI 

application was a patent and gross abuse of discretion. Even if the prosecutor 

inappropriately considered factors five and eight, defendant did not demonstrate 

the denial "clearly subvert[ed] the goals underlying [PTI]." Bender, 80 N.J. at 

93. Defendant failed to make such a showing and failed to demonstrate that a 

remand is required because the denial was "arbitrary, irrational, or otherwise an 

abuse of discretion." Wallace, 146 N.J. at 583 (citation omitted). Moreover, a 

remand would serve no useful purpose, ibid., where, as here the prosecutor's 

consideration of all other factors is amply supported by the evidence in the 

record. 

Affirmed.