SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4200-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IESHA JOHNSON-ELLIS,

Defendant-Appellant.

____________________________

Submitted April 1, 2019 – Decided April 10, 2019

Before Judges Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law 

Division, Burlington County, Municipal Appeal No. 

37-17.

Mark J. Molz argued the cause for appellant.

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued 

the cause for respondent (Scott A. Coffina, Burlington 

County Prosecutor, attorney; Nicole Handy, 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NOT FOR PUBLICATION WITHOUT THE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 Iesha Johnson-Ellis appeals from the Law Division's April 10, 

2018 order denying her appeal from the municipal court's rejection of her 

application for entry into the conditional dismissal program pursuant to the 

requirements of N.J.S.A. 2C:43-13.1 to -13.9 (the Act). For the reasons that 

follow, we are constrained to reverse the April 10 order and remand for further 

proceedings.

To place this matter in context, we begin by briefly summarizing the key 

provisions of the Act.1 Subject to certain exceptions set forth in N.J.S.A. 2C:43-

13.1(b)(1),

2

a defendant who is charged with a petty disorderly persons offense 

 

1

 The Act became effective on January 4, 2014.

2

 N.J.S.A. 2C:43-13.1(b)(1) states that 

[a] defendant shall not be eligible for participation in 

the conditional dismissal program if the offense for 

which the person is charged involved: (a) organized 

criminal or gang activity; (b) a continuing criminal 

business or enterprise; (c) a breach of the public trust 

by a public officer or employee; (d) domestic violence 

as defined by . . . [N.J.S.A. 2C:25-19]; (e) an offense 

against an elderly, disabled or minor person; (f) an 

offense involving driving or operating a motor vehicle 

while under the influence of alcohol, intoxicating 

liquor, narcotic, hallucinogenic or habit-producing 

drug; (g) a violation of animal cruelty laws; or (h) any 

disorderly persons offense or petty disorderly persons 

offense under chapter 35 or 36 of Title 2C.
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or disorderly persons offense, and who has not previously been convicted of 

such offenses or crimes, and who has not previously participated in one of the 

diversionary programs set forth in N.J.S.A. 2C:43-13.1(a), may apply to the 

municipal court to enter into "the conditional dismissal program" (the program). 

Ibid. The defendant must file the application "after a plea of guilty or a finding 

of guilt, but prior to the entry of a judgment of conviction." Ibid. The defendant 

must also provide "appropriate notice" to the municipal prosecutor that an 

application will be made, ibid., so that the prosecutor can make a

recommendation to the municipal court judge as to whether the application 

should be granted or denied. N.J.S.A. 2C:43-13.2.

In addition to reviewing the municipal prosecutor's recommendation and 

the defendant's criminal record, ibid., the municipal court must also consider the 

following ten factors set forth in N.J.S.A. 2C:43-13.1(c): 

(1) The nature and circumstances of the offense;

(2) The facts surrounding the commission of the 

offense;

(3) The motivation, age, character and attitude of the 

defendant;

(4) The desire of the complainant and victim to 

forego prosecution;
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(5) The needs and interests of the victim and the 

community;

(6) The extent to which the defendant's offense 

constitutes part of a continuing pattern of antisocial behavior;

(7) Whether the offense is of an assaultive or violent 

nature, whether in the act itself or in the possible 

injurious consequences of such behavior;

(8) Whether the applicant's participation will 

adversely affect the prosecution of codefendants;

(9) Whether diversion of the defendant from 

prosecution is consistent with the public interest; 

and

(10) Any other factors deemed relevant by the court.

 If the municipal court grants the application after considering these 

criteria, the court will not enter a judgment of conviction and, instead, will 

"place the defendant under a probation monitoring status for a period of one 

year."3 N.J.S.A. 2C:43-13.2. At the end of the probationary period, which may 

be extended for good cause, N.J.S.A. 2C:43-13.3, the court may dismiss the 

proceedings against the defendant provided he or she "has not been convicted of 

 

3

 A defendant applying for admission to the program must pay a $75 application 

fee and, if he or she is subsequently admitted to the program, may be assessed 

an additional fee, which "shall not exceed the amount of a fine that would have 

been imposed for conviction of the offense charged." N.J.S.A. 2C:43-13.8.
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any subsequent petty disorderly persons offense, disorderly persons offense or 

crime under any law of the United States, this State or any other state, and has 

complied with any other terms and conditions opposed by the court[.]" N.J.S.A. 

2C:43-13.5. 

The conditional dismissal . . . granted pursuant to [the 

Act] shall not be deemed a conviction for the purposes 

of disqualification or disabilities, if any, imposed by 

law upon conviction of a petty disorderly persons or 

disorderly persons offense but shall be reported to the 

State Bureau of Identification criminal history record 

information files for purposes of determining future 

eligibility or exclusion from court diversion programs.

[N.J.S.A. 2C:43-13.6.]

With this essential statutory background in mind, we turn to the facts of 

this case. Defendant was charged with assaulting two victims in a parking lot 

in violation of N.J.S.A. 2C:12-1(a)(1). Because this charge was neither a petty 

disorderly persons offense nor a disorderly persons offense, defendant was not 

eligible to apply for entry into the program. N.J.S.A. 2C:43-13.1(a). However, 

the charge was subsequently downgraded to the petty disorderly persons offense 

of harassment by offensive touching. N.J.S.A. 2C:33-4(b).4 Because defendant 

 

4

 The record does not contain any explanation for the charge downgrade.
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was now charged with a petty disorderly persons offense, and had no prior 

convictions, she was now eligible to apply to the program.

On December 18, 2017, defendant appeared in the municipal court. Her 

attorney advised the judge that defendant had agreed to plead guilty to the petty 

disorderly persons offense of harassment, and that she would like to apply to the 

program. In response, the judge stated that defendant was "not eligible for that 

type of program" because the charge "involves an assaultive behavior." Without 

any further explanation, the judge summarily denied defendant's application.

This ruling was incorrect because although the court is required to 

consider "[t]he nature and circumstances of the offense" and "[w]hether the 

offense is of an assaultive or violent nature," the Act does not automatically bar 

a defendant charged with an assault not covered by the exceptions set forth in 

N.J.S.A. 2C:43-13.1(b), from applying for the program.5 N.J.S.A. 2C:43-

13.1(c)(1) and (7). Therefore, the judge should have considered the application

and made a determination as to whether, in combination with all of the other 

 

5

 We note that, effective August 10, 2015, the Legislature amended the criteria 

for admission into the Pretrial Intervention Program (PTI) to make clear, as it 

did in the Act, that any presumption against admission to PTI for applicants who 

had committed an act "of an assaultive or violent nature" did not apply beyond 

domestic violence offenders. See N.J.S.A. 2C:43-12(b)(2)(b) and (e)(10); L.

2015, c. 98, § 4.
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statutory factors, the fact that the offense may have been "of an assaultive or 

violent nature" weighed against admission to the program.

We make two additional observations about the judge's ruling on 

defendant's application. First, although the municipal prosecutor's name is listed 

on the title page of the December 18, 2017 transcript, this individual did not 

enter an appearance in connection with defendant's plea, and made no comments 

during the entire proceeding. Thus, the municipal prosecutor never provided the 

court with a recommendation concerning defendant's application for entry to the 

program as required by N.J.S.A. 2C:43-13.2.

In addition, the judge did not mark any exhibits into evidence as required 

by Rule 1:2-3. Thus, while the judge would later state that he had defendant's 

criminal record available to him, we have no way of knowing what specific 

record was being referenced.

After the judge denied her application for admission to the program, 

defendant provided a factual basis for her guilty plea by stating that she "did 

commit an act of harassment by offensively touching the [two] victims in this 

matter as alleged[.]" No further details of the offense were provided. The judge 
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accepted the guilty plea, and ordered defendant to pay a $500 fine and other 

court costs.6

After imposing the sentence, the judge noted that one of the victims was 

present in the courtroom, and stated "we heard earlier from [this victim]. Is 

there anything you'd like to add at this time?" The victim replied, "My sister is 

on her way. I can't speak for her. She is on call and I talked to the Prosecutor 

and he had me call her and my mom in because my mom was a witness." The 

victim made no further statements and did not express any position on 

defendant's prior application for admission into the program under N.J.S.A. 

2C:43-13.1(c)(4).

At the conclusion of the hearing, defense counsel asked the judge whether 

he had "reserve[d] [decision] on the issue of whether [defendant] can get a 

conditional dismissal." The judge confirmed that he had "ruled that she can't[,]" 

and stated, "If you want to appeal that decision, . . . you certainly know how to 

do that, okay?"

Defendant filed an appeal to the Superior Court for a trial de novo. In a 

trial de novo, the Superior Court (trial) judge is obliged to "determine the case 

 

6

 The judge also granted defendant's application for a civil reservation under 

N.J.S.A. 7:6-2(a)(1).
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completely anew on the record made in the [m]unicipal [c]ourt," giving due, 

although not necessarily controlling, regard to the opportunity of the [municipal 

court judge] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 

146, 157 (1964). Unfortunately, this did not occur. 

Instead, the trial judge simply read the entire transcript of the municipal 

court proceeding into the record, and found that the municipal court judge did 

not abuse his discretion in denying the application. The trial judge did not make 

any independent findings of fact and conclusions of law as required by Johnson. 

Ibid.

The trial judge also overlooked the fact that the municipal court judge had 

summarily denied the application without considering any of the statutory 

factors under the mistaken belief that a defendant charged with an offense 

involving assaultive behavior was automatically barred from the program. Thus, 

without any support in the record, the trial judge concluded that the municipal 

court judge considered all of the factors set forth in N.J.S.A. 2C:43-13.1(c),

including the "criminal case history" that was not entered as an exhibit during 

the plea hearing. 

Although the victim never stated whether she supported or opposed 

defendant's application when the municipal court judge finally addressed her 
10 A-4200-17T1

after sentencing defendant, the trial judge found that the victim "wasn't thrilled 

about a conditional . . . dismissal[,]" apparently because she appeared at the 

hearing as requested by the prosecutor. The trial judge therefore rejected

defendant's appeal from the municipal court judge's denial of her application. 

This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE [N.J.S.A. 2C:33-4(b)] AMENDMENT IS 

PERMISSIBLE UNDER THE CONDITIONAL 

DISMISSAL STATUTE.

POINT II

THE [N.J.S.A. 2C:33-4(b)] CHARGE IS NOT 

DISQUALIFIED FOR THE CONDITIONAL 

DISMISSAL STATUTE.

POINT III

FACTORS IN EVALUATING WHETHER THE 

COURT SHOULD ADMIT AN ELIGIBLE 

CANDIDATE INTO THE PROGRAM.

When the Law Division conducts a trial de novo on the record developed 

in the municipal court, "[o]ur review is limited to determining whether there is 

sufficient credible evidence present in the record to support the findings of the 

Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. 
11 A-4200-17T1

Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 

(1964)). Having reviewed the record in light of our standard of review, we are 

compelled to reverse and remand this matter for additional proceedings.

As noted above, the trial judge mistakenly reviewed the municipal court 

judge's decision to determine whether that judge had abused his discretion in 

denying the application, rather than conducting his own independent, de novo 

review of the matter as required by Johnson, and making his own findings of 

fact and conclusions of law. While a trial judge need not author a lengthy written 

opinion, or deliver an hour-long oral ruling to meet the requirements of Rule

1:7-4(a) in every case, the judge must always state what specific facts formed 

the basis of the decision, and then weigh and evaluate those facts in light of the 

governing law "to reach whatever conclusion may logically flow from" those 

facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357 (App. Div. 2017). Because 

the trial judge did not fulfill his obligation in this regard, a remand is required.

Moreover, the trial judge's determination that the municipal court judge 

considered all of the statutory factors has no support in the record. Indeed,

because the municipal court judge incorrectly denied defendant's application 

solely because her offense involved "assaultive behavior," that judge did not 

review any of the required factors. Contrary to the trial judge's conclusion, the 
12 A-4200-17T1

victim never took a position on defendant's application. The municipal 

prosecutor's failure to make a recommendation on the application, or even speak 

on the record concerning it, is another reason supporting a remand.

In sum, defendant's application did not receive the consideration it was 

due under the Act. Therefore, we reverse the trial judge's order denying 

defendant's appeal, and remand to the Law Division for an independent, de novo 

review of the application as required by Johnson.

In remanding this matter, we make clear that nothing within this opinion 

forecasts any views on the merits of defendant's application for entry into the 

program. We say no more than that because the trial court failed to conduct an 

appropriate de novo review, provide independent findings of fact and 

conclusions of law, or render a decision that was supported by sufficient credible 

evidence in the record, the issues presented are not ripe for decision.

Reversed and remanded. We do not retain jurisdiction.