RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2957-17T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JILL PETRUSKA,

Defendant-Respondent.

__________________________

Argued telephonically December 10, 2018 –

Decided May 20, 2019

Before Judges Simonelli, Whipple and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 17-07-1843.

Frank J. Ducoat, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for appellant (Theodore N. Stephens II, Acting Essex 

County Prosecutor, attorney; Frank J. Ducoat, of 

counsel and on the brief). 

Patrick J. Caserta argued the cause for respondent. 

NOT FOR PUBLICATION WITHOUT THE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 from the February 21, 2018 order of the Law Division 

directing defendant's admission into the pretrial intervention (PTI) program, 

N.J.S.A. 2C:43-12; Rule 3:28-1 to -10, over the State's objection. We reverse 

and remand for the prosecutor's reconsideration of defendant's application.

I.

On September 14, 2016, in response to a complaint of a foul odor, a Nutley 

police officer gained entry into defendant's apartment. He discovered several 

cat carcasses on the floor in varying states of decomposition. Some of the 

remains were skeletal. Other carcasses appeared to have been eaten by living 

cats in the apartment who looked severely neglected and unhealthy. Garbage 

and litter boxes overflowing with fecal matter were scattered throughout the 

apartment. The toilet bowls were completely dry, the cats having consumed all 

of the water in them. The deplorable conditions and stench made it necessary 

for the officer to seek the assistance of the fire department's ventilation 

equipment and the protection of a hazardous materials suit before fully entering 

the premises.

Thirteen live cats were removed from the apartment. Animal control 

officers estimated the number of dead cats in the premises at twelve, but reported 
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that the total could be higher because "a large amount of them had been gorged 

upon and ingested by the living cats." They tallied the number of dead cats by 

counting skulls, but could not account for all of the detached feline body parts 

found in the apartment. One cat died of malnutrition the day after its removal.

Defendant appeared at the apartment while recovery operations were 

underway. She apologized for the condition of the residence and admitted that 

she had not lived there for several weeks. She blamed her absence on the recent 

death of a pet dog and her need to care for a sick relative, claiming that she 

stopped by the apartment to feed the cats periodically. Defendant later claimed 

that she only had three cats and did not know how the approximately two dozen 

other cats got into her apartment. Still later, defendant told a therapist that she 

had arranged for someone else to care for the cats while she was not residing in 

the apartment.

An Essex County grand jury charged defendant with twenty-six counts of 

third-degree animal cruelty, N.J.S.A. 4:22-17(c)(1) to (3) and N.J.S.A. 4:22-

17(d)(1)(a) to (b). Among other evidence, the grand jury saw photographs of 

the conditions in the apartment, including photographs of cat carcasses, 

skeletons, and feline body parts on the floor, and heard testimony from 

veterinarians about the desperate physical condition of the living cats in the 
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residence. A veterinarian testified that some of the cats had reproduced in the 

apartment and consumed their offspring to survive.1

Defendant sought admission into the PTI program. On October 4, 2017, 

an assistant prosecutor issued a written rejection of defendant's application. The 

assistant prosecutor, citing Guideline 3(i) to Rule 3:28, determined that 

defendant was presumptively ineligible for PTI because the charged offenses 

were "deliberately committed with violence or threat of violence against another 

person[.]" Guidelines for Operation of Pretrial Intervention in New Jersey, 

Pressler & Verniero, Current N.J. Court Rules, Guideline 3, following R. 3:28 

at 1235 (2017). While recognizing that cats are not "persons," the assistant 

prosecutor determined that the presumption against admission applies because 

the cats were "victims" that were "particularly vulnerable or incapable of 

resistance." In support of this determination, the assistant prosecutor relied on 

 

1

 In addition, Nutley officials issued defendant forty-two ordinance violations:

twenty-six summonses for prohibited activities and treatment, Nutley Twp., 

N.J., Animals Code § 217-25, eight summonses for having an unlicensed cat, 

Nutley Twp., N.J., Animals Code § 217-30, and eight summonses for having an 

unvaccinated cat, Nutley Twp., N.J., Animals Code § 217-31.
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N.J.S.A. 2C:44-1(a)(2), which characterizes the perpetration of criminal acts 

against such victims as an aggravating factor for sentencing purposes.

2

Having applied the presumption against admission into the program, the 

assistant prosecutor determined that defendant "has not and cannot establish 

sufficient compelling reasons overcoming her presumptive ineligibility" by 

demonstrating something "extraordinary or unusual [or] idiosyncratic" in her 

background making her amenable to rehabilitation. See State v. Nwobu, 139 

N.J. 236, 252 (1995).

The assistant prosecutor considered a number of factors in reaching her 

conclusion, including what she described as defendant's "clear pattern of antisocial behavior" evidenced by her "either purposely, knowingly, or recklessly 

[having] deprived these animals of life sustaining food and water" for an 

extended period of time. In reaching this conclusion, she relied, in part, on 

 

2

 Effective September 1, 2017, Guideline 3(i) was amended to eliminate the 

presumption against admission to the PTI program for a defendant charged with 

an offense "deliberately committed with violence or threat of violence against 

another person[.]" The revised Guideline 3(i) mirrored the text of N.J.S.A. 

2C:43-12(b)(2)(a). Effective July 1, 2018, the Supreme Court deleted all of the 

Rule 3:28 Guidelines and adopted Rules 3:28-1 to -10 which incorporate much 

of the substance of the Guidelines as they then existed. Defendant's alleged 

offenses and her application for admission to PTI both took place prior to 

September 1, 2017. The assistant prosecutor's denial of defendant's application 

was issued shortly after September 1, 2017, but applied the prior version of 

Guideline 3(i), which contained the presumption at issue.
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photographs of the advanced state of decomposition of the deceased cats. In 

addition, the assistant prosecutor noted that the police report states that the 

management of defendant's building received a complaint of a foul odor 

emanating from defendant's prior apartment, resulting in her relocation. The 

assistant prosecutor also characterized defendant as a threat to other animals and 

people, described the alleged crimes as violent, and determined that the need for 

prosecution outweighed any benefit that defendant and society might derive 

from supervised treatment. The assistant prosecutor found defendant's age, 

education, and lack of criminal record as mitigating factors.

Defendant appealed the assistant prosecutor's decision to the Law 

Division. On February 21, 2018, the trial court issued a written decision 

reversing the denial of defendant's PTI application. The court determined that 

the assistant prosecutor misapplied Guideline 3(i), as well as four other factors 

when denying the application. Specifically, the court noted that Guideline 3(i), 

as it existed at the time of the offense, created a presumption against admission 

to the PTI program for defendants alleged to have committed crimes involving 

the deliberate use of "violence or threat of violence against another person[.]" 

The court concluded that domestic animals are not persons within the meaning 
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of the Guideline and, as a result, the presumption against eligibility did not apply

to defendant.

The trial court also concluded that the assistant prosecutor incorrectly 

considered defendant's alleged crimes to be part of a continuing pattern of antisocial behavior. The court found that it was an error for the State to rely on the 

report of a complaint of a foul odor emanating from defendant's prior apartment 

as evidence of a pattern of behavior, because the record contained no evidence 

with respect to what generated the odor on the prior occasion. The court did 

not, however, address the assistant prosecutor's finding that defendant's alleged 

criminal acts took place over an extended period of time. This may be explained 

by the trial court's refusal, despite several requests, to view the photographic 

evidence depicting cat carcasses decomposed to the point of being full skeletons 

and feline body parts gnawed from deceased animals strewn on the apartment's 

floor. These conditions surely did not evolve over a short period of time and 

belied defendant's claim to have periodically stopped by the apartment to feed 

the cats or to have arranged for someone else to take care of the cats.

With respect to its refusal to view the photographic evidence, the court 

stated: the "State appears to be overcome by emotion as the result of the . . . 

harm" defendant's conduct inflicted on the cats and is "trying to impute a [s]tate 
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of mind upon [defendant] that is not supported by credible evidence" and that 

the State's "only purpose" in submitting the photographs "would be to try to 

influence the [c]ourt to make an emotional decision, the same as had apparently 

already been done by the State in denying [defendant's] application."

Finally, the court found that the assistant prosecutor failed to consider 

mitigating factors, including a lack of a documented mental health history and 

the effect that a criminal record would have on defendant's ability to find 

employment. The trial court also concluded that the State erroneously found 

that defendant posed a continuing threat to others because animals are not 

"others" within the meaning of the PTI statute and Guidelines.

The trial court concluded that the assistant prosecutor's incorrect 

application of a presumption against eligibility and her erroneous findings with 

respect to several statutory factors constituted a patent and gross abuse of 

discretion. The court noted that it "would normally remand the matter back to 

the prosecutor for reconsideration of [defendant's] application[.]" However, the 

court stated that it "believes that a remand would result in a rubber stamped 

denial of the application and controvert the rehabilitative goals of the PTI 

program." On February 21, 2018, therefore, the trial court entered an order 

admitting defendant to the PTI program for two years. The court ordered that 
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defendant shall: (1) not own, shelter, or be the primary caretaker for any 

domestic animal during her supervision; (2) perform 200 hours of community 

service at a local animal shelter or other appropriate agency; (3) attend 

psychological counseling; and (4) pay mandatory fines and fees.

This appeal followed, resulting in a stay of the order. R. 2:9-3(d). The 

State makes the following arguments for our consideration:

POINT I

THE JUDGE BELOW SUBSTITUTED HIS 

JUDGMENT FOR THE PROSECUTOR'S WHEN HE 

ADMITTED DEFENDANT INTO THE PTI 

PROGRAM OVER THE STATE'S OBJECTION.

A. PTI & STANDARD OF REVIEW.

B. THE STATUTORY PRESUMPTION AGAINST 

ADMISSION INTO PTI FOR DEFENDANTS 

CHARGED WITH CRIMES INVOLVING 

"VIOLENCE OR THE THREAT OF VIOLENCE" 

APPLIES TO ANIMAL CRUELTY CASES, AND IT 

APPLIES TO THE FACTS OF THIS CASE.

C. FACTORS (1), (2), (8), AND (9) ALL 

SUPPORT REJECTION OF DEFENDANT'S PTI 

APPLICATION.

i. FACTORS (1) AND (2) – THE NATURE 

OF THE OFFENSE AND THE FACTS OF THE 

CASE.
10 A-2957-17T1

ii. FACTOR (8) – WHETHER 

DEFENDANT'S CONDUCT CONSTITUTES A 

PATTERN OF ANTI-SOCIAL BEHAVIOR.

iii. FACTOR (9) - DEFENDANT'S 

CRIMINAL RECORD AND THE EXTENT TO 

WHICH SHE MAY PRESENT "A SUBSTANTIAL 

DANGER TO OTHERS.

D. FACTORS (5) AND (6) ARE INAPPLICABLE 

TO THIS CASE.

E. EVEN ASSUMING THE PROSECUTOR 

MISAPPLIED ONE OR MORE FACTORS, HER 

DECISION WAS NOT A PATENT AND GROSS 

ABUSE OF DISCRETION.

F. IN THE ALTERNATIVE, THE JUDGE 

INAPPROPRIATELY ORDERED DEFENDANT 

INTO PTI OVER THE STATE'S OBJECTION 

RATHER THAN REMAND THE CASE BACK TO 

THE PROSECUTOR FOR RECONSIDERATION. 

FURTHER, THE JUDGE'S COMMENTS REQUIRE 

THAT ANY FURTHER PROCEEDINGS TAKE 

PLACE BEFORE A DIFFERENT JUDGE.

II.

The decision to admit a defendant to PTI is a "quintessentially 

prosecutorial function." State v. Roseman, 221 N.J. 611, 624 (2015) (quoting 

State v. Wallace, 146 N.J. 576, 582 (1996)). As a result, judicial review of a 

prosecutor's decision to deny a defendant admission into the PTI program is 

"severely limited." State v. Negran, 178 N.J. 73, 82 (2003). "Reviewing courts 
11 A-2957-17T1

must accord the prosecutor 'extreme deference.'" State v. Waters, 439 N.J. 

Super. 215, 225 (App. Div. 2015) (quoting Nwobu, 139 N.J. at 246). We reverse 

"only the most egregious examples of injustice and unfairness" in the PTI 

application process. Nwobu, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. 

Super. 106, 111 (App. Div. 1993)). To overturn a rejection of a PTI application,

a defendant must "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, 146 N.J. at 582 (quoting State v. Leonardis, 

73 N.J. 360, 382 (1977)). "[W]e review the [trial court's] reversal of the 

prosecutor's decision de novo." Waters, 439 N.J. Super. at 226.

"PTI was established initially by Rule 3:28 in 1970." Roseman, 221 N.J.

at 621. "In 1979, the Legislature . . . establish[ed] 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. (alteration in original) (quoting State v. Watkins, 193 N.J. 507, 

517 (2008)).

We begin our analysis with the trial court's conclusion that Guideline 3(i), 

as it existed at the time of the alleged offenses, did not create a presumption that 

defendant is ineligible for admission into the PTI program. On the date of the 
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alleged offenses, the Guideline provided that "[i]f the crime [alleged] was . . . 

deliberately committed with violence or threat of violence against another 

person . . . the defendant's application should generally be rejected." We think 

it too plain to require extended discussion that a cat is not a person within the 

meaning of Guideline 3(i), as it existed at the time of the alleged offenses.

We recognize that since 1996 the Legislature has expanded criminal 

liability and increased penalties for abuse of animals. See L. 1996, c. 64 §1 

(elevating animal cruelty from a disorderly persons offense); L. 2001, c. 229, §1 

(making certain forms of animal cruelty and abuse a fourth-degree crime); L.

2003, c. 232, §1 (making certain forms of animal cruelty and abuse a thirddegree crime); L. 2005, c. 105, § 1 (expanding criminal liability to those who 

indirectly inflict cruelty on an animal). Yet, the Legislature has not bestowed 

on animals the status of "person" for purposes of criminal liability.

Nor, as the State argues for the first time on appeal, does N.J.S.A. 2C:43-

12(b)(2) create a presumption against defendant's admission to the PTI program. 

The statute provides, in relevant part:

There shall be a presumption against admission into a 

program of supervisory treatment for:

(a) a defendant who was a public officer or employee 

whose offense involved or touched upon his public 

office or employment; and
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(b) a defendant charged with any crime or offense 

involving domestic violence, as defined in subsection 

a. of section 3 of P.L. 1991, c. 261 (N.J.S.A. 2C:25-19) 

if the defendant committed the crime or offense while 

subject to a temporary or permanent restraining order 

issued pursuant to the provisions of the "Prevention of 

Domestic Violence Act of 1991,", P.L. 1991, c. 261

(N.J.S.A. 2C:25-17 et al.) or if the crime or offense 

charged involved violence or the threat of violence.

[N.J.S.A. 2C:43-12(b)(2)(a) to (b).]

To be presumptively ineligible for admission to the PTI program, a 

defendant must be either: (a) a public officer or employee charged with an 

offense that involved or touched on his or her public office or employment; or 

(b) charged with a crime or offense involving domestic violence, if one of two 

additional conditions are met. A defendant charged with a crime or offense 

involving domestic violence is presumptively ineligible for admission into the 

PTI program only if (1) the crime or offense charged was committed while the 

defendant was subject to a temporary or permanent restraining order, or if (2) 

the crime or offense charged involved violence or the threat of violence. 

Defendant is not a public officer or employee and she was not charged with a 

crime or offense involving domestic violence. She is not, therefore, subject to 

a presumption against admission to the PTI program.
14 A-2957-17T1

The State misreads the second condition applicable to defendants charged 

with a crime or offense involving domestic violence as applying to a defendant 

charged with any crime or offense involving violence or the threat of violence. 

The unambiguous structure of the statute, however, creates only two categories 

of defendants presumed to be ineligible for admission into the PTI program and 

the conditional phrase following "or if" in the statute modifies the second of 

those categories: "a defendant charged with any crime or offense involving 

domestic violence, as defined in subsection a. of section 3 of P.L.1991, c. 261 

(C.2C:25-19) . . . ."

Alleged crimes and offenses involving violence, but not involving 

domestic violence, are addressed in a different provision of the statute. N.J.S.A. 

2C:43-12(e)(10) provides that

[p]rosecutors and program directors shall consider in 

formulating their recommendation of an applicant's 

participation in a supervisory treatment program, 

among others, the following criteria:

. . . .

(10) Whether or not the crime is of an assaultive or 

violent nature, whether in the criminal act itself or in 

the possible injurious consequences of such behavior[.]

There is, therefore, no statutory presumption against admission into the PTI 

program for a defendant charged with violent crimes not involving domestic 
15 A-2957-17T1

violence. Instead, the violent nature of the alleged crimes and their possible

injurious consequences are factors to be considered along with many other 

factors in the application process.

We, therefore, agree with the trial court's conclusion that the assistant 

prosecutor erred by applying a presumption against defendant's admission into 

the PTI program. We find error, however, in the trial court's decision directing 

defendant be admitted to the program.

In State v. Coursey, 445 N.J. Super. 506, 512 (App. Div. 2016), we held 

that a prosecutor's erroneous application of a presumption against admission into 

the PTI program "requires that we reverse the PTI order on appeal and remand

. . . to the prosecutor for reconsideration ab initio." "[R]emand to the prosecutor 

affords an opportunity to apply the standards set forth by the court 'without 

supplanting the prosecutor's primacy in determining whether [pretrial 

intervention] is appropriate in individual cases.'" State v. K.S., 220 N.J. 190, 

200 (2015) (second alteration in the original) (quoting State v. Dalglish, 86 N.J. 

503, 514 (1981)).

We see no basis for the trial court's departure from the holding in Coursey. 

The record, while evidencing the assistant prosecutor's spirited defense of the 

denial of defendant's PTI application, does not support the trial court's 
16 A-2957-17T1

conclusion that a remand to the prosecutor would result in a "rubber stamp" of 

the prior decision. Nor do we condone the trial court's refusal to view the 

photographic evidence offered by the State. The evidence is relevant to disprove 

defendant's claim to have stopped by the apartment periodically to feed the cats, 

given the advanced state of decomposition of feline remains, the 

dismemberment of deceased animals, and other conditions depicted in the 

photographs. It is difficult to imagine an accurate review of the assistant 

prosecutor's denial of defendant's application could be undertaken by a court 

that refuses to review the evidence on which the assistant prosecutor relied in 

reaching that decision. Because the judge who decided this matter has already 

engaged in weighing the evidence and expressed his opinion on the ability of 

the prosecutor's office to render a fair decision on defendant's PTI application, 

we direct that should the matter return to the trial court after remand, any future 

decision with respect to defendant's application be made by a different judge. 

See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 617 (1986).

Reversed and remanded for the prosecutor's reconsideration of defendant's 

application for admission to the PTI program. We do not retain jurisdiction.