RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1988-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

QUASHAWN D. SHIVERS, 

 Defendant-Appellant. 

________________________

Argued February 28, 2024 – Decided April 12, 2024 

Before Judges Gummer and Walcott-Henderson. 

On appeal from the Superior Court of New Jersey, 

Law Division, Camden County, Indictment No. 21- 

03-0644. 

Luke C. Kurzawa argued the cause for appellant (Reisig 

Criminal Defense & DWI Law, LLC, attorneys; 

Matthew Whalen Reisig and Luke C. Kurzawa, on the 

brief; Michael H. Ross, of counsel and on the brief). 

Kevin Jay Hein, Assistant Prosecutor, argued the cause 

for respondent (Grace C. MacAulay, Camden County 

Prosecutor, attorney; Kevin Jay Hein, 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NOT FOR PUBLICATION WITHOUT THE 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-1988-21

PER CURIAM 

Defendant Quashawn D. Shivers appeals from an order entered on January 

6, 2022, denying his motion challenging the prosecutor's rejection of his 

application for pre-trial intervention (PTI). Defendant argues the court erred by 

failing to find the prosecutor's objection constituted a patent and gross abuse of 

discretion. We disagree and affirm. 

On March 24, 2021, defendant was indicted on charges of third-degree 

terroristic threats, N.J.S.A. 2C:12-3, second-degree unlawful possession of a 

handgun, N.J.S.A. 2C:39-5(b)(l), second-degree possession of a weapon for an 

unlawful purpose, N.J.S.A. 2C:39-4(a)(l), and fourth-degree aggravated assault, 

N.J.S.A. 2C: 12-1(b)(4) (pointing a firearm at or in the direction of another). 

The charges stem from a November 2017 complaint made by the mother of 

defendant's child, who claimed defendant had appeared at her home and 

threatened to harm her, pointing a handgun at her face. Several months after the 

indictment was returned, the State extended a plea offer in which defendant 

would plead guilty to the third-degree terroristic threats charge—the sole charge 

in the indictment not involving possession of a weapon—and the State would 

dismiss the remaining charges. 
3 A-1988-21

Before accepting the plea offer, defendant sought the prosecutor's consent 

to apply to PTI. The State agreed defendant could submit a PTI application but 

did not consent to his acceptance into PTI. 

On August 24, 2021, one day before he was scheduled to plead guilty to 

the terroristic-threats charge, defendant filed his PTI application and included a 

statement of compelling reasons required by Rule 3:28-1(e)(3). He claimed to 

be an ideal candidate for PTI based on: his age of thirty-four years; his lack of 

prior criminal history; his motivation to participate in PTI; his current 

employment as a social worker and counselor; and the fact he placed a high 

importance on maintaining a law-abiding life. He also noted his alleged criminal 

activity is "related to a condition that would be conducive to change through his 

participation in supervisory treatment insofar as the structure PTI provides will 

help" him lead a law-abiding life. 

Defendant acknowledged three of the four charges against him "would 

ordinarily serve to disqualify him from consideration from [PTI] admission," 

presumably referencing the weapons and aggravated-assault charges and Rule 

3:28-1(d)(1), which provides that a person charged with a crime "for which there 

is a presumption of incarceration or a mandatory minimum period of parole 

ineligibility" is "ineligible for [PTI] without prosecutor consent to consideration 
4 A-1988-21

of the application." However, defendant pointed out the State had extended a 

plea offer in which those charges would be dismissed and defendant would plead 

guilty to the terroristic-threats charge, which defendant contended would "avoid 

the imposition of any jail time" and "is a charge that would make the Defendant 

eligible for admission into the PTI program." Defendant contended the State 

had made that plea offer after hearing defense counsel's arguments concerning 

the difficulty the State would face in attempting to introduce into evidence the 

gun defendant allegedly had pointed at the victim. 

 On August 24, 2021, defendant executed a plea form in which he agreed 

to plead guilty to the third-degree terroristic-threats charge. The plea form 

included the following language: 

State has consented to allow [d]efendant to apply for 

PTI. If accepted, [d]efendant will participate in same. 

If ultimately denied admission into PTI, [S]tate will 

recommend a term of non-custodial probation, 

conditioned upon a psychological evaluation and any 

recommend[ed] treatment, a substance abuse 

evaluation and any recommended treatment, no 

uninvited contact with the victim, forfeiture of the 

firearm seized in this matter, and forfeiture of all 

firearms pursuant to the DV Firearms Surrender Order. 

At the plea hearing the following day, the court confirmed defendant 

understood the nature of his plea and its effect on his PTI application: 
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[The court:] My understanding is you’re going to plead

guilty to a terroristic threat, a third degree, in return for 

a recommended sentence of either PTI or probation. Is 

that your understanding? 

A: Yes. 

[The court:] Have you had enough time to review your 

case and your plea agreement including any discovery 

in this matter with [counsel]? 

A: Yes. 

. . . . 

[The court:] If you’re not accepted into PTI, you 

understand—and you're sentenced to the third[-]degree 

terroristic threat, you understand you'd have a criminal 

record? 

A: Yes. 

[The court:] If you are accepted into PTI and you 

successfully complete that program, then you would not 

have a criminal record. Do you understand that? 

A: Yes, I do. 

Defense counsel further clarified that there is a presumption against 

admittance and that admission was not guaranteed: 

[Counsel:] So, there's two provisions in the statute 

governing PTI that I want to go over on the record with 

you. One is [N.J.S.A.] 2C:43-12b(2)(b), which actually 

states that there is a presumption against you being 

admitted into PTI based on what you’re charged with. 
6 A-1988-21

Do you understand that there is a presumption against 

your being admitted into the program? 

A: Yes. 

[Counsel:] And that we have to overcome that 

presumption against you. 

A: Yes. 

[Counsel:] And the other provision is that you’re 

entering a guilty plea today and also, concomitantly or 

simultaneously, applying for PTI, that’s because the 

statute, the same statute, 2C:43-12g(3) states that in 

cases involving domestic violence, which your case is, 

that you can only apply for PTI with a guilty plea. Do 

you understand that? 

A: Yes. 

[Counsel:] And you understand that there is—the 

reality here is you may not get into PTI. 

A: Yes. 

. . . . 

[Counsel:] And that if you don’t get in, the State is 

recommending non-custodial probation, which means 

you’re not going to prison and/or jail. Do you 

understand that? 

A: Yes, I do. 

Defendant then made certain allocutions as to the terroristic threat charge: 

[Counsel:] And did you have a verbal disagreement 

with V.J. on that occasion at about 9:00 p.m.? 
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A: Yes. 

[Counsel:] And during this verbal disagreement, was 

that verbal disagreement about ongoing co-parenting

issues that you’ve had with V.J. as it related to the 

minor child in common? 

A: Yes. 

[Counsel:] And during this verbal disagreement, did 

you become both animated and unduly and 

unnecessarily argumentative? 

A: Yes. 

[Counsel:] And during that state, your state of being 

animated and unduly and unnecessarily argumentative, 

did you threaten to harm V.J. with the purpose to 

terrorize her during this verbal disagreement? 

A: Yes. 

[Counsel:] When I say "the purpose," is the intent to 

commit the crime? 

A: Yes. 

[Counsel:] And did you have that purpose? 

A: Yes. 

On September 27, 2021, the Prosecutor's Office notified defense counsel 

it had reviewed defendant's PTI application and statement of compelling reasons 

and objected to defendant's admission into PTI based on his failure to comply 
8 A-1988-21

with the deadline required under Rule 3:28-2, which requires that "[a]pplications 

for pretrial intervention shall be made at the earliest possible opportunity, 

including before indictment . . . unless good cause is shown or consent by the 

prosecutor is obtained." 

The State asserted defendant had failed to demonstrate the requisite 

extraordinary and compelling circumstances that would justify admission into 

PTI. The State contended defendant's age, criminal history and employment did 

not constitute extraordinary and compelling circumstances and further stated 

"the existence—and negotiated terms—of a plea offer, the potential legal 

challenges defendant might raise, as well as the strength of the State's case do 

not overcome the presumption of ineligibility that exists due to the nature of the 

crimes charged." Defendant filed a motion challenging the prosecutor's 

rejection of his application. 

 Following defendant's motion, a hearing was convened and the matter 

adjourned to give the State an opportunity to update its response to include a 

complete analysis of the statutory factors under N.J.S.A. 2C:43-12(e). The State 

issued a supplemental letter noting it did not dispute defendant's contention that 

"consent was given for the late submission of the application, or for 

consideration of the application due to the pending second-degree charges" but 
9 A-1988-21

reiterated its position that defendant's age, criminal history, and employment did 

not constitute extraordinary and compelling circumstances justifying admission 

into PTI. 

Relying on Rule 3:28-4(b)(1)(iii), the State focused on the victim's 

statement that defendant had pointed a gun at her during the argument as a basis 

for concluding that he had committed a deliberate act of violence and, the 

presumption against admission into PTI had not been overcome. The State 

further noted its objection was based upon the statutory criteria in N.J.S.A. 

2C:43-12(e)(1) to (17) and specifically contended the following factors weighed 

against defendant's admission to PTI: (1) the nature of the offense, (2) the facts 

of the case, (3) age and motivation of defendant, (4) the desire of the victim to 

forego prosecution, (6) the lack of likelihood defendant's crime is related to a 

condition conducive to change through participation in supervisory programs, 

(7) consideration of the needs and interests of the victim and society, (10) 

whether or not the crime is of a violent or assaultive nature, and (17) whether or 

not the harm done to society by abandoning criminal prosecution would 

outweigh the benefits to society from channeling an offender into a supervisory 

treatment program. 
10 A-1988-21

On January 6, 2022, following argument, the court entered an order 

denying defendant's motion. In rendering its oral decision, the court squarely 

addressed defendant's arguments that the prosecutor committed a patent and 

gross abuse of discretion by objecting to his application based on the original 

second-degree charges in the indictment. The court stated, 

What the defense counsel is essentially asking the court 

is to consider the application was made prior to a plea, 

and that the State shouldn’t base its rejection on those 

charges . . . that the defendant was originally charged 

with . . . but rather, that—it should be what is 

essentially pled to . . . I think that timing is important 

here, and I think the State is correct that if it is supposed 

to be considered after the plea, then [State v. Bell, 271 

N.J. 336 (2014)] prohibits the application as PTI is not 

something that can be an option after a guilty plea. 

Addressing the State's substantive objections, the court concluded there was no 

"patent and gross abuse of discretion." Specifically, the court found the State 

had considered all relevant factors, did not consider irrelevant or inappropriate 

factors, and that there was no evidence presented that its denial had been 

premised on a clear error in judgment or so far off the mark that it would subvert 

the goals underlying the PTI program. 

 The court subsequently sentenced defendant to a one-year term of noncustodial probation on his guilty plea to the third-degree terroristic threats. 

Defendant makes a singular point in support of his appeal. 
11 A-1988-21

POINT I 

THE DEFENDANT SHOULD HAVE BEEN 

ENROLLED INTO THE PRE-TRIAL 

INTERVENTION (PTI) PROGRAM OVER THE 

PROSECUTOR'S OBJECTIONS SINCE THE 

REJECTION OF DEFENDANT'S APPLICATION 

WAS BASED ON A PATENT AND GROSS ABUSE 

OF DISCRETION BY THE CAMDEN COUNTY 

PROSECUTOR'S OFFICE. 

"PTI is essentially an extension of the charging decision, therefore the 

decision to grant or deny 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)); see also State v. Gomes, 253 N.J. 6, 17 (2023). A defendant may 

challenge "the decision . . . of a prosecutor refusing to consent to consideration 

of the defendant's application where required pursuant to R. 3:28-1(d), or of a 

prosecutor's refusing to consent to the defendant's enrollment into the pretrial 

intervention program[.]" R. 3:28-6. However, "the prosecutor's decision to 

accept or reject a defendant's PTI application is entitled to a great deal of 

deference." Roseman, 221 N.J. at 624 (citing State v. Leonardis, 73 N.J. 360, 

381 (1977)). 
12 A-1988-21

"A court reviewing a prosecutor's decision to deny PTI may overturn that 

decision only if the defendant 'clearly and convincingly' establishes the decision 

was a 'patent and gross abuse of discretion.'" State v. Johnson, 238 N.J. 119, 

128-29 (2019) (quoting Wallace, 146 N.J. at 583). Our Supreme Court has 

defined a "'patent and gross abuse of discretion' in the context of a prosecutor's 

denial of a PTI application" as follows: 

Ordinarily, an abuse of discretion will be manifest if 

defendant can show that a prosecutorial veto (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 judgement. In order for such an abuse of discretion 

to rise to the level of "patent and gross," it must further 

be shown that the prosecutorial error complained of

will clearly subvert the goals underlying [PTI]. 

 

[Roseman, 221 N.J. at 625 (quoting State v. Bender, 80 

N.J. 84, 93 (1979)).]

The same standard governs our review. "The question is not whether we 

agree or disagree with the prosecutor's decision, but whether the prosecutor's 

decision could not have been reasonably made upon weighing the relevant 

factors." State v. Nwobu, 139 N.J. 236, 254 (1995). "When a defendant 

convincingly demonstrates a patent and gross abuse of discretion, a court may 

admit the defendant into PTI over the prosecutor's objection." Johnson, 238 N.J. 
13 A-1988-21

at 129 (citing Roseman, 221 N.J. at 624-25). But when the prosecutor has failed 

to consider all relevant information, a remand is more appropriate. Nwobu, 139 

N.J. at 247 (citing State v. DeMarco, 107 N.J. 562, 567 (1987)). 

Defendant challenges the State's use of the nature of the original charges 

arguing "the existence of his original, unproved, now dismissed charges should 

not have been used as a basis to deny his application for PTI." He disputes the 

State's representation that he threatened to kill the victim, noting that during his 

plea allocution, he "merely admitted that he became animated, unduly 

argumentative, and threatened to harm the victim with the purpose to terrorize 

her." Defendant further challenges the State's focus on the timeliness of his 

application, stating the timing "was a result of the fact that the nature of the 

prosecution changed when the State abandoned its prosecution of the weaponsrelated offenses" and that "[i]t would have been foolhardy for [defendant] to 

have made his application any sooner than he did." Lastly, he posits that in all 

respects he "is an appropriate candidate for PTI, having no criminal history and 

being charged/convicted of a [third] degree crime [or] less." 

Focusing less on defendant's failure to comply with Rule 3:28-2—and the 

timeliness requirement—and more on the nature of the charges against 

defendant, the State submits that defendant failed to establish a patent and gross 
14 A-1988-21

abuse of discretion in the prosecutor's objection to his PTI application and 

remarked that the record shows the prosecutor considered all appropriate 

statutory factors pursuant to N.J.S.A. 2C:43-12(e), including that defendant had 

threatened to kill the victim, which weighed heavily against his admission into 

PTI. 

The State further maintains that defendant did not overcome the 

presumption against admittance to PTI. The State also asserts that defendant is 

not a candidate for PTI because the second-degree weapon charges placed 

defendant within the category of "Persons Ineligible for Pre Trial Intervention 

Without Prosecutor Consent to Consideration of the Application," see R. 3:28-

1(d)(1), and that he failed to articulate any extraordinary and compelling 

circumstances to justify admission. And, the State emphasizes that defendant's 

discussion of his "age, criminal history and employment do not constitute 

extraordinary and compelling circumstances" justifying admission to PTI. 

We agree with the court that the State reviewed all relevant factors and 

there was no evidence presented its denial had been premised on a clear error in 

judgment or was so far off the mark that it would subvert the goals underlying 

the PTI program. We discern no abuse of discretion on the part of the court in 
15 A-1988-21

denying defendant's motion challenging the prosecutor's rejection of his PTI 

application. 

As an initial matter, we are persuaded that the email exchange between 

the prosecutor and defense counsel supports the conclusion the prosecutor 

expressly consented to defendant's submission of the PTI application for 

consideration. However, consenting to consideration of an application to PTI is 

not the same as consenting to defendant's admission into PTI. See R. 3:28-6. 

Thus, the sole issue is whether the prosecutor, after having consented to 

defendant's late application to PTI committed a patent and gross abuse of 

discretion by later opposing defendant's application based on the reasons stated 

in her written objections. 

Defendant argues his application should have been "evaluated based on 

the current posture of what the case is, and not what it was," referring to the

State's focus on the allegation that he threatened to kill the victim when, during 

his plea allocution, he "merely admitted that he became animated, unduly 

argumentative, and threatened to harm the victim with the purpose to terrorize 

her." 

In applying our Supreme Court's holding in Bell, 271 N.J. at 348, the trial 

court correctly evaluated defendant's application. The Court in Bell declared 
16 A-1988-21

that "the vision of PTI . . . contemplates a pretrial decision by the defendant to 

seek, and a pretrial decision by the prosecutor to admit, an offender to this 

diversionary program" such that "permitting a defendant found guilty of a 

criminal offense to seek admission to PTI transforms an effective pretrial 

diversionary program into an alternative sentencing option. Such action stands 

the PTI program on its head." 271 N.J. at 348; see also State v. Waters, 439 N.J. 

Super. 215, 224-25 (App. Div. 2015) (holding that "such concerns are also raised 

when a trial court grants a PTI appeal after a valid guilty plea"). 

Based on Bell, the trial court found it had "to consider the State's denial 

based on [its] consideration of the application prior to the plea and what the 

charges were, and the facts [that were] alleged based on the charge, not what the 

defendant ultimately pled to." We agree. To adopt the post-plea, postconviction analytical framework proposed by defendant would, as the Supreme 

Court found in Bell, have the effect of "transform[ing] an effective pretrial 

diversionary program into an alternative sentencing option," thereby "stand[ing] 

the PTI program on its head." 271 N.J. at 348. 

Given that the court applied the correct analytical framework, that 

defendant had been charged with crimes carrying a presumption against 

admission into PTI, see R. 3:28-1(e)(2)(b), and the consideration of other 
17 A-1988-21

applicable factors, see R. 3:28-4, we perceive no error in the court's finding that 

defendant did not prove by clear and convincing evidence the prosecutor's denial 

of defendant's PTI application constituted a patent and gross abuse of discretion. 

Affirmed.