RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1281-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.M.-P.

Defendant-Appellant.

__________________________

Submitted April 25, 2018 — Decided

Before Judges Koblitz and Manahan.

On appeal from Superior Court of New Jersey, 

Law Division, Salem County, Indictment No. 12-

10-0648.

Joseph E. Krakora, Public Defender, attorney 

for appellant (John Douard, Assistant Deputy 

Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, 

attorney for respondent (David M. Galemba, 

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NOT FOR PUBLICATION WITHOUT THE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.

NOT FOR PUBLICATION WITHOUT THE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.

June 25, 2018
2 A-1281-16T4

Defendant M.M.-P.

1 appeals from her April 25, 2013 conviction 

for fourth-degree child neglect, N.J.S.A. 9:6-3,

2 after a remand 

from our Supreme Court for reconsideration of the denial of her 

pre-trial intervention (PTI) application. She successfully 

completed her sentence of one year of probation prior to the 

remand. We now reverse, based on the holding in Dep't of Children 

& Family Servs. v. E.D.-O., 223 N.J. 166 (2015). 

On June 12, 2012, defendant went inside a local grocery store, 

leaving her almost three-month-old infant son asleep in her car. 

According to defendant, it was raining and the child was not 

feeling well. Penns Grove police officers found the car locked 

with the windows rolled up. Approximately five minutes after the 

police arrived, defendant exited the store with two grocery bags. 

The infant did not suffer any injury. Defendant had no prior 

criminal history. 

Defendant was indicted for second-degree endangering the 

welfare of a child, N.J.S.A. 2C:24-4(a). The criminal case manager 

rejected defendant's PTI application based on the seriousness of 

the second-degree charge and defendant's appeal was rejected by 

the trial judge. She then pled guilty to the fourth-degree charge, 

 

1 We use initials pursuant to Rule 1:38-3(c)(5).

2 The judgment of conviction mistakenly refers to N.J.S.A. 9:6-

1. 
3 A-1281-16T4

admitting she had put her son in danger by leaving him unattended 

in her car, and reserved her right to appeal the denial of her PTI 

application. She received a one-year probationary term. We 

affirmed. State v. M.M.-P., No. A-5967-12 (App. Div. Oct. 16, 

2014). The Supreme Court granted defendant's petition for 

certification and remanded to the trial court in light of the 

Supreme Court's decision in E.D.-O, decided after our opinion. 

State v. M.M.-P., 223 N.J. 272 (2015). The State opposed 

defendant's retroactive admission into PTI and the trial court 

again affirmed the denial. 

On appeal, defendant argues:

POINT I: BECAUSE THE FACTS IN E.D.O. WERE 

NEARLY IDENTICAL TO THE FACTS IN THE PRESENT 

CASE, THIS COURT MUST APPLY THE STANDARD FOR 

FINDING IMMINENT DANGER USED THERE TO 

DETERMINE WHETHER MS. [M.-P.] POSED AN 

IMMINENT DANGER TO THE CHILD AT THE TIME OF 

THE INDICTMENT IN QUESTION. MOREOVER, MS. 

[M.-P.] WAS DENIED A FULL RECONSIDERATION 

HEARING FOR THE PURPOSE OF ASSESSING HER PTI 

ELIGIBILITY AS SHE STOOD BEFORE THE COURT.

A. THE PROSECUTOR'S ATTEMPT TO DISTINGUISH 

THE PRESENT CASE FROM E.D.O. MISSTATED THE 

FACTS IN E.D.O. AND FAILED TO APPLY THE PROPER 

STANDARD FOR FINDING IMMINENT DANGER.

B. CONTRARY TO THE REMAND ORDER, THE 

PROSECUTOR'S REJECTION OF MS. [M.-P.'s]

CURRENT APPLICATION FOR PTI FAILED TO CONSIDER 

ANY OF THE RELEVANT FACTORS UNDER N.J.S.A. 

2C:43-12(e), CONSIDERED IRRELEVANT FACTORS, 

AND CONSTITUTED A CLEAR ERROR OF JUDGMENT.
4 A-1281-16T4

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. Baynes, 148 N.J. 434, 441 (1997) (quoting 

State v. Nwobu, 139 N.J. 236, 240 (1995)). Admission into PTI is 

"based on a recommendation by the criminal division manager, as 

Director of the PTI Program, with the consent of the prosecutor." 

Ibid. (citing R. 3:28(c)(1)). 

Guideline 3(i) creates a "presumption against acceptance" 

into PTI for defendants whose crimes fall into the enumerated 

categories. Id. at 442. The categories include a defendant 

charged with a second-degree crime. Guidelines for Operation of 

Pretrial Intervention in New Jersey, Pressler & Verniero, Current 

N.J. Court Rules, Guideline 3(i)(3), following R. 3:28 at 1294

(2018). Our Supreme Court has stated that "a prosecutor may, in 

appropriate circumstances, reject an applicant solely because of 

the nature of the offense." State v. Caliguiri, 158 N.J. 28, 36 

(1999) (citation omitted). But our Supreme Court has warned: 

"conditioning a defendant's admission to PTI solely on the nature 

of his or her offense 'may be both arbitrary and illogical' and 

that '[g]reater emphasis should be placed on the offender than on 

the offense.'" State v. Brooks, 175 N.J. 215, 224-25 (2002)

(alteration in original) (quoting State v. Leonardis, 71 N.J. 85, 
5 A-1281-16T4

102 (1976)). "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.'" State v. Roseman, 

221 N.J. 611, 622 (2015) (quoting State v. Watkins, 193 N.J. 507, 

523 (2008), when reversing the denial of PTI for a defendant 

charged with second-degree official misconduct).

Judicial review of a prosecutor's decision to deny an 

application for admittance into PTI is limited to whether the 

defendant has "clearly and convincingly establish[ed] that the 

prosecutor's decision constitutes a patent and gross abuse of 

discretion." Watkins, 193 N.J. at 520 (quoting State v. Watkins, 

390 N.J. Super. 302, 305-06 (App. Div. 2007)). "A patent and 

gross abuse of discretion is defined as a decision that 'has gone 

so wide of the mark sought to be accomplished by PTI that 

fundamental fairness and justice require judicial intervention.'" 

Ibid. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

In E.D.-O., a Title 9 child abuse or neglect case, a mother 

left her sleeping nineteen-month-old child unattended for 

approximately ten minutes in a locked motor vehicle with the motor 

running and the windows slightly open in a shopping mall parking 

lot. 223 N.J. at 169. The Court noted the factors that should 

be considered in determining whether a parent's decision to leave 
6 A-1281-16T4

a child unattended in a car constitutes neglect. Id. at 193-94. 

The factors include "the distance between the store and the parked 

car, the mother's ability to keep the car in sight, how long the 

car was out of view, how long the child remained unattended, and 

any extenuating circumstances." Id. at 194. Other relevant 

circumstances to be considered were "the weather on the day the 

child is left unattended and the ability of someone to enter the 

vehicle." Ibid. A fact-finding determination of neglect is not 

a criminal determination and must be proven only by a preponderance 

of the evidence. N.J.S.A. 9:6-8.46(b).

Here, defendant was charged with a second-degree crime for 

behavior very similar to that the Supreme Court found not clearly 

neglectful in E.D.-O. The fourth-degree crime of child neglect, 

N.J.S.A. 9:6-3, fits the State's version of the facts as well as 

the second-degree crime of child endangerment.3 Certainly, if 

those facts were no more severe than in E.D.-O., the criminality 

of the behavior is highly questionable. We therefore determine 

that the State's refusal to admit defendant into PTI due to the 

severity of the crime charged was a gross abuse of discretion.

Reversed.

 

3 We note that the Supreme Court has heard oral argument on the 

issue of whether actual harm to the child must be shown for a 

conviction of the second-degree child endangerment crime. State 

v. Fuqua, 230 N.J. 560 (2017).