SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0699-19

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NOT FOR PUBLICATION WITHOUT THE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." 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.
2 A-0699-19

PER CURIAM

Defendant Anthonay C. McIver, who pleaded guilty to one count of thirddegree 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 improperly

considered 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, defendant was arrested after a bank had accused 

her of attempting to deposit a fraudulent check. She later admitted she had used 

without permission her mother's checkbook 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 for withdrawal soon 

after deposit before the checks had cleared. In reality, the funds were never

transferred to defendant's account because her mother's account had been closed. 

After a grand jury returned a twenty-count indictment charging defendant 

with 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 thirddegree attempt at theft, forgery, and uttering, N.J.S.A. 2C:5-1(a)(1), defendant 
3 A-0699-19

applied for PTI. Citing PTI guidelines1 1(b) through 1(e) and 3(i)(4), the 

criminal division manager rejected the application because admitting defendant 

into PTI, which the manager described as a "rehabilitative model for victimless 

crimes," would "deprecate the seriousness 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 withdrawing $25,376, and 

was attempting to deposit another fraudulent check in the amount of $20,300 

when she was arrested, the manager concluded defendant's pattern 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 not 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 the negotiated plea, she agreed 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 Rule 3:28 with consideration of factors in N.J.S.A. 2C:43-12(e). Rule 3:28 

was amended and those guidelines were eliminated effective July 1, 2018, 

months before the December 17, 2018 denial of defendant's application.
4 A-0699-19

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, the 

prosecutor initially asked what "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-social behavior and 

inability to comply with the law, the State disclosed facts regarding the prior 
5 A-0699-19

arrest referenced by the criminal division manager: defendant had been arrested 

on similar charges for stealing approximately $1100 from her grandmother. 

According to the State, the 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

 

The 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 was 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 denied defendant's motion 

based on its conclusion defendant had failed to establish clearly and 

2

 The State apparently made that assertion based on defendant's initial rejection 

of a proposed plea offer that included restitution. Defendant 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 

ascertain 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-0699-19

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 

several 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 commit a "breach of the public trust" when defendant's crime 

did not qualify as a public-trust offense, citing Rule 3:28-4(b)(1)(iv); and treated 

a substantial up-front payment as a precondition to PTI admission, citing Rule

3:28-5(d). In response, the State argues the prosecutor correctly rejected 

defendant's application as untimely4 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 denying defendant's motion due to the untimeliness of her 

application. The court stated it did not find "it would be one of those rules 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-0699-19

not be deterred from future criminal conduct." The State again faults defendant 

for refusing to pay restitution. 

PTI "is an alternative procedure to the traditional process of prosecuting 

criminal defendants." State v. Leonardis, 71 N.J. 85, 89 (1976). It provides 

prosecutors with another way of resolving charges 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, 473 (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 

prosecutor must make an "individualized assessment of the defendant," State v. 

Roseman, 221 N.J. 611, 621-22 (2015), considering the defendant's "amenability 

to correction" and potential "responsiveness 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 prosecutorial 
8 A-0699-19

function." Id. at 582. Accordingly, courts give prosecutors "broad discretion" 

in making that determination. K.S., 220 N.J. at 199. 

That discretion, however, "is not unbridled." Wallace, 146 N.J. at 582. A 

court may overturn a prosecutor's denial of a PTI application if a defendant

establishes 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) was 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. 1979) (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 prosecutorial discretion involved, our "scope of

review is severely limited." State v. Negran, 178 N.J. 73, 82 (2003). But when

"the prosecutor has made a legal error, there is a relatively low threshold for 

judicial intervention because '[t]hese instances raise issues akin to questions of 

law, concerning which courts should exercise independent judgment in fulfilling 
9 A-0699-19

their responsibility to maintain the integrity and proper functioning 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 considers 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 Supreme 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 findings are 

made, prior dismissed charges may not be considered for any purpose." Id. at 

199. In K.S., the PTI director concluded the defendant's arrest history evidenced 

"a pattern of anti-social behavior," and the prosecutor stated the defendant's 

criminal history suggested the current offense was "'part of a continuing pattern 
10 A-0699-19

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 did 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 defendant's culpability or other facts germane to 

admission into [PTI] have not been established in some way, constitutes an 

impermissible inference of guilt." Ibid.

In State v. Waters, 439 N.J. Super. 215, 235 (App. Div. 2015), we 

considered a trial court's decision overturning a PTI denial in 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 relying on the 

prior charges, even though the designated PTI director had. Ibid. We have 

nearly the opposite situation here. In her rejection letter, the 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 State 
11 A-0699-19

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 

pattern 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 others," N.J.S.A. 2C:43-12(e)(9). The State then 

disclosed the details about the prior dismissed charge, apparently with no 

documentary support in the record, arguing it demonstrated "a pattern of antisocial 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 an improper attempt to "infer guilt," K.S., 220 N.J. at 199, and 

characterizes it as "a consideration of the defendant as a whole." That argument 

is not persuasive 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 otherwise supported, "for any purpose." Ibid. The 

prosecutor's consideration of this inappropriate factor constitutes a gross and 

patent abuse of the prosecutor's discretion and merits reversal and remand to the 

prosecutor.
12 A-0699-19

In the letter rejecting defendant'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. 

Repealed 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, the public-trust presumption was set forth in 

Rule 3:28-4(b)(1)(iv). 

"A breach of the public trust occurs when a governmental agency or 

officer, vested with the public trust, causes harm to the public by breaching its 

trust." State v. Denman, 449 N.J. Super. 369, 378 (App. Div. 2017). To 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 the prosecutor had erred in applying the public-trust 

presumption to the defendant and the imposition on defendant of the Guideline 
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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 publictrust 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 the denial of defendant's application – is rendered moot 

by our remand based on the first two bases of appeal and the State's decision not 

to seek restitution. 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 

restitution is no longer an 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.