SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 19 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. ANTHONAY C. MCIVER a / k / a ANTHONAY MCIVEE BUBBA, ANTHONAY MCIVER , and ANTHONAY CHARISH MCIVER, Defendant

- Appellant.

______________________________ Submitted April 20, 2021

– Decided May 11, 2021 Before Judges Moynihan and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 18

- 09

- 0819. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel S. Rockoff, Assistant Deputy Public Defender, of counsel and on the brief). Jennifer Webb

- McRae, Cumberland County Prosecutor, attorney for respondent (Andre R. Araujo, Assistant Prosecutor, of counsel and on the brief). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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- 19 PER CURIAM Defendant Anthonay C. McIver , who pleaded guilty to one count of third

degree forgery , N.J.S.A. 2C:21

- 1 ( a ) (1) , appeals an order denying her motion for entry into the pre

- trial intervention program. Because the prosecutor improper ly conside red inapplicable factors in rejecting defendant's PTI application , we reverse and remand to the prosecutor for reconsideration of defendant's eligibility for PTI

. At the age of nineteen , d efendant was arrested after a bank had accused her of attempting to deposit a fraudulent check. She later admitted she had used without permission her mothe r's check book from a closed account, forged her mother's name on checks, deposited the checks with the intent to defraud the bank, and withdrew from the bank approximately $25,000. She was able to withdraw the funds because the bank made them available fo r withdrawal soon after deposit before the checks had cleared. In reality, the funds were n ever transferred to defendant's account because her mother's account had been closed. A fter a grand jury return ed a twenty

- count indictment charging defendant

w ith third

- degree forgery , N.J.S.A. 2C:21

- 1(a) (1); third

- degree uttering, N.J.S.A. 2C:21

- 1(a)(3); third

- degree theft, N.J.S.A. 2C:20

- 3 ( a ) ; and third

degree attempt at theft, forgery, and uttering, N.J.S.A. 2C:5

- 1(a)(1) , d efendant3 A

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- 19 applied for PTI. C iting PTI guidelines 1 1 (b) through 1(e) and 3(i)(4) , the criminal division manager rejected the application because admitting defendant into PT I, which the manager described as a "rehabilitative model for victimless crimes," would "deprecate the seriousne ss of [defendant's] crime

. " Pointing out defendant had used her mother's checkbook to deposit $77,961 .90 in fraudulent checks , had victimized her mother and the bank by withdr aw ing $25,376 , and was attempting to deposit another fraudulent check i n the am ount of $20,300 when she was arrested, the manage r concluded defendant's patter n of criminal behavior would have continued "for an unknown amount of time " had she not been caught. Because of the amount of the deposits and withdrawals, the
manager found no t credible defendant's assertion she had stolen the money because she and her boyfriend were struggling financially to pay their bills. The manager recognized defendant's criminal history included an additional arrest but no convictions. Defendant subsequently pleaded guilty to one count of third

- degree forgery , N.J.S.A 2C:21

- 1(a)(1)

. As part of th e negotiated plea, she agree d to

1 As explained in State v. Johnson , 238 N.J. 119, 128 ( 2019 ), assessment of a defendant's suitability for PTI used to be conducted under "Guidelines" provided in R ule 3:28 with consideration of factors in N.J.S.A. 2C:43

- 12(e)

. R ule 3:28 was amended and t hose guidelines were eliminated effec tive July 1, 2018 , months before the December 17, 2018 denial of defendant's application.4 A

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- 19 pay restitution of no more than $25,000 and represented she had the ability to pay that amount over time. After the plea, defense counsel submitted to the prosecutor a letter regarding defendant's " compelling reasons " for admission into PTI, referencing a purportedly similar application , which had been granted. In response , t he prosecutor initially asked wha t "substantial and meaningful step" defendant was "willing to make towards restitution ." The prosecutor ultimately rejected defendant's application as untimely given she already had pleaded guilty

. Defendant moved to compel PTI admission. The State opposed the motion, arguing in part defendant's application was untimely. The State also argued defendant's admission was properly denied considering the nature of the offense, the facts of the case, the "extent to which [her] crime constitute[d] part of a continuing pattern of anti

- social behavior"; defendant's "record of criminal and penal violations and the extent to which [she ] may present a substantial danger to others" ; and the "value of supervisory treatment would be outweighed by the public need for prosecution" given the nature of the crime. See N.J.S.A. 2C: 43

- 12(e)( 1), (2), (8), (9), and ( 14)

. In its opposition brief, to support its assertion defendant's history reflected a pattern of anti

- soc ial behavior and inability to comply with the law, the State disclosed facts regarding the prior5 A

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- 19 arrest referenced by the criminal division manager: defendant had been arrested on similar charges for stealing approximately $1100 from her grandmother

. Acc ording to the State, t he charges were dismissed because her grandmother did not wish to proceed. The State also faulted defendant for refusing to pay restitution to a presumably insured bank. 2
T he court placed on the record its decision on defendant's motion and sentenced her on the same day

. Before the court rendered its decision on her motion , the prosecutor advised the court the State w as not seeking restitution as part of the sentence. 3 The court nevertheless noted in its decision defendant's argument she should not have to pay restitution based on her assumption the bank had insurance. The court found the application was untimely but did not deny defendant's motion for that reason. The court den ied defendant's motion based on its conclusion defendant had failed to establish clearly and

2 The State apparently made that a ssertion based on defendant's initial rejection of a proposed plea offer that included restitution. D efendant ultimately agreed as part of her plea to pay up to $25,000 over time in restitution. Defense counsel at sentencing denied the prosecutor's assertion defendant had refused to pay restitution because the bank was insured and clarified he "just wanted to asc ertain whether or not the bank or the victim was seeking restitution

. "

3 The court later explained the bank was not seeking restitution through the criminal process but likely had sold the "bad debt" to a collection agency , which might "be coming after her civilly in order to get the money back."6 A

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- 19 convincingly the PTI denial was "a patent and gross abuse of discretion

. " The court found defendant's actions were "not a one

- time event," taking place over

sever al months, and were "done on purpose." Noting defendant's crime was not

" a minor shoplifting offense," the court cited to the "big amount of money" involved. The court sentenced her to a three

- year probation period. On appeal, defendant argues the court erred in denying her motion because the prosecutor improperly had considered a dismissed adult charge, citing State v. K.S. , 220 N.J. 190 (2015) ; referenced the presumption against admission into PTI for people who com mit a "breach of the public trust" when defendant's crime did not quali f y as a public

- trust offense , citing Rule 3:28

- 4(b)(1)(iv) ; and treated a substantial up

- front payment as a pre con dition to PTI admission, citing R ule 3: 2 8

- 5(d). In response, the State argues the prosecutor correctly rejected defendant's application as untimely 4 and properly considered the factors of N.J.S.A. 2C:43

- 12(e)

. The State contends the prosecutor's reference to a dismissed charge was not an improper inference of guilt but instead was a "consideration of defendant as a whole . . . reveal[ing] an individual who will

4 We do not address this timeliness argument except to note the court expressly stated it was not deny ing defendant's motion due to the untimeliness of her application . The court stated it did not find "it would be one of those rule s where you can't bend it a little bit in the interest of justice " and chose to decide the motion on "the merits."7 A

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- 19 not be deterred from future criminal conduct." The State again faults defendant for refusing to pay restitution. PTI "is an alternative procedure to the t raditional process of prosecuting criminal defendants." State v. Leonardis , 71 N.J. 85, 89 (1976). It provides prosecutors with another way of resolving charge s against qualified defendants while still meeting the goals of our criminal justice system. RSI Bank v. Providence Mut. Fire Ins. Co. , 234 N.J. 459, 47 3 (2018). It enables qualified defendants "to avoid a trial and the stigma accompanying a verdict of guilt to any criminal offense." State v. Bell , 217 N.J. 336, 347 (2014)

. In determining whether a defendant should be diverted into PTI, a
p rosecutor must make an "individual iz ed assessment of the defendant ," State v. Roseman , 221 N.J. 611, 621

- 22 (2015) , consi dering the defendant's " amenability to correction " and potential " re s ponsiveness to rehabilitation , " N.J.S.A. 2C:43

- 12(b)

. See also State v. Watkins , 193 N.J. 507, 520 (2008)

. In making that assessment, prosecutors are required to consider the seventeen non - exclusive factors listed in N.J.S.A. 2C:43

- 12(e). State v. Lee , 437 N.J. Super. 555, 562 (App. Div. 2014). The weight given to the various factors is left to the prosecutor's discretion. State v. Wallace , 146 N.J. 576, 585

- 86 (1996). The decision to divert a defendant into PTI "is a quintessentially prosecutorial8 A

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- 19 function." Id. at 582. Accordingly, courts give prosecutors "broad discretion" in making that determin ation

. K.S. , 220 N.J. at 199. That discretion, however, "is not un bridled." Wallace , 146 N.J. at 582. A court may overturn a prosecutor's denial of a PTI application if a defendant establish es clearly and convincingly the denial was "a patent and gross abuse" of prosecutorial discretion. Watkins , 193 N.J. at 520. A defendant meets that standard by proving the PTI denial "(a) was not premised upon a consideration of all relevant factors, (b) w as based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender , 80 N.J. 84, 93 (1979); see also Lee , 437 N.J. Super. at 563; State v. Maguire , 168 N.J. Super. 109, 115 n.1 (App. Div. 19 79) (finding abuse of discretion occurs when a decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention"). Given the amount of prosec utorial discretion involved , o ur "scop e of review is severely limited

. " State v. Negran , 178 N.J. 73, 82 (2003). But whe n

" the prosecutor has made a legal error, there is a relatively low threshold for judicial intervention because ' [ t ] hese instances raise issues akin to question s of law, co ncerning which courts should exercise independent judgment in fulfilling9 A

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- 19 their responsibility to maintain the integrity and proper function ing of PTI as a whole.'" Watkins , 193 N.J. at 520

- 21 (quoting State v. Dalglish , 86 N.J. 503, 510 (1981)); see also State v. Maddocks , 80 N.J. 98, 104 (1979) (finding "[i]ssues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law'"). "Remand is the proper remedy when, for example, the prosecutor cons iders inappropriate factors, or fails to consider relevant factors. " K.S. , 220 N.J. at 200; see also State v. Johnson , 238 N.J. 119, 129 (2019) ( remand to the prosecutor " may be appropriate so she or he may rightly reconsider the application" )

. In K.S. , our Supr eme Court directly addressed the issue of whether a prosecutor can rely on dismissed adult criminal charges in denying a PTI application. Id. at 193

. The Court held "[f]or the prior dismissed charges to be considered properly by a prosecutor in connection with an application, the reason for consideration must be supported by undisputed facts of record or facts found at a hearing " and "when no such undisputed facts exist or f inding s are made , prior dismissed charges may not be considered for any purpose." Id. at 199. In K.S. , the PTI d irector concluded the defendant's arrest history evidenced

" a pattern of anti

- social behavior , " and the prosecutor stated the defendant's crim inal history suggested the current offense was "'part of a continuing pattern10 A

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- 19 of anti

- social behavior.'" Id. at 200

. The Court found because the defendant's prior charges had been dismissed, he had no record of criminal violations and noted the record di d not contain any admissions made by the defendant in the dismissed matters. Id. at 202. The Court concluded : "[u]se of prior dismissed charges alone as evidence of a history of and propensity for violence or a pattern of anti

- social behavior , where def endant's culpability or other facts germane to admission into [ P TI ] have not been established in some way, constitutes an impermissible inference of guilt." I bi d.
In State v. Waters , 43 9 N.J. Super. 215, 235 (App. Div. 2015) , we considered a trial court 's decision overturn ing a PTI denial i n part due to a purported improper consideration of prior dismissed charges. We reversed the trial court's decision in part because the prosecutor had denied rel ying on the prior charges, even though the designat ed PTI director had. I bi d. We have nearly the opposit e situation here. In her rejection letter, t he criminal division
manager referenced defendant's prior arrest, did not provide any details about it other than acknowledging it did not result in a conviction, and stated her rejection was based on "deprecation concerns." Instead of denying reliance on the prior dismissed charge, like the prosecutor in Waters , this prosecutor established reliance. In its brief in opposition to defendant's motion , the State11 A

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- 19 listed the N.J.S.A. 2C:43

- 12( e ) factors supporting the PTI denial, including "[t]he extent to which the applicant's crime constitutes part of a continuing patter n of anti

- social behavior ," N.J.S.A 2C:43

- 12(e) (8) , and "[t]he applicant's record of criminal and penal violations and the extent to which he may present a substantial dangers to other s ," N.J.S.A. 2C:43

- 12(e)(9). The State then disclosed the details about the prior dismissed charge, apparently with no do cumentary support in the record , arguing it demonstrated "a pattern of anti

social behavior and an inability to comply with the law" and "ongoing criminal conduct." The State on appeal denies the invocation of defendant's prior dismissed charge was a n imp roper attempt to "infer guilt," K.S. , 2 2 0 N.J. at 199, and characterizes it as "a consideration of the defendant as a whole ." That argument is not p ersuasive because it is not supported by the record

– the clear purpose of detailing defendant's prior dismissed charge was to infer guilt

– and is contrary to the K.S. Court 's express prohibition of the consideration of prior dismissed charges , when not o therwise supported, "for any purpose." I bi d. The prosecutor's consideration of this inappropriate factor constitutes a gross and patent abuse of the prosecutor's discretion and merits revers al and remand to the prosecutor.12 A

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- 19 In the letter rejecting defenda nt's application for PTI, the criminal division
manager identified Guideline 3 ( i ) (4) , which already had been repealed, as a reason for the rejection , stating defendant's admission "would deprecate the seriousness of the crime." Repealed Guideline 3 (i)(4) made no reference to deprecation; it provided the PTI application procedure for defendants charged with the types of crime requiring the prosecutor , pursuant to repealed Guideline 3(i) , to consider " the nature of the offense " in reviewing the application

. R epealed Guideline 3(i)( 1)(c) created a presumption of PTI rejection when the defendant's crime was "a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime ." When the manager issued the rejection letter, t he public

- trust presumption was set forth in Rule 3:28

- 4(b)( 1)(iv).

" A breach of the public trust occur s when a governmental agency or officer, vested with the public trust, causes harm to the public by breaching its trust." State v. De nman , 449 N.J. Super. 369, 378 (App. Div. 2017)

. T o be found in breach of the public trust , the defendant "must owe some sort of fiduciary duty directly to the public at large in order to breach the public trust." Ibid. In Denman , we found th e prosecutor had erred in applying the public

- trust presumption to the defendant and the imposition on defendant of the Guideline13 A

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- 19 3(i)(4) procedures constituted " a gross and patent abuse of the prosecutor's discretion." Id. at 379. We similarly find here the application of the public

trust presumption on defendant, to whom it clearly did not apply, to be a gross and patent abuse of the prosecutor's discretion. The last issue on appeal

– whether and in what way the prosecutor considered restitution in t he denial of defendant 's application

– is rendered moot by ou r remand based on the first two bases of appeal and the State's decision not
to seek restitut ion

. Defendant premises her argument on this issue on the prosecutor's email responding to defense counsel's "compelling reasons" letter and the State's brief in opposition to her motion, both of which were submitted before the State advised the court of its decision not to seek restitution. Because restitut ion is no longer a n issue in this case and given our remand, we see no

reason why it should be considered in determining defendant's eligibility for admission to PTI. Reversed and remanded to the prosecutor for reconsideration of defendant's eligibility for PTI. We do not retain jurisdiction.