SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4588-18

 A-4638-18 

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ILENA Y. SILVA,

Defendant-Appellant.

_________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROWJEAN V. RODRIGUEZ,

Defendant-Appellant.

_________________________

Submitted March 15, 2021 – Decided April 20, 2021

Before Judges Sabatino and Gooden Brown.

NOT FOR PUBLICATION WITHOUT THE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-4588-18

On appeal from the Superior Court of New Jersey, 

Law Division, Atlantic County, Indictment No. 17-11-

2461.

Joseph E. Krakora, Public Defender, attorney for 

appellant Ilena Y. Silva (Stefan Van Jura, Assistant 

Deputy Public Defender, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for 

appellant Rowjean V. Rodriguez (Molly O'Donnell 

Meng, Assistant Deputy Public Defender, of counsel 

and on the briefs).

Damon G. Tyner, Atlantic County Prosecutor, attorney 

for respondent State of New Jersey (Debra R. 

Albuquerque, Assistant Prosecutor, of counsel and on 

the briefs).

PER CURIAM

On November 29, 2017, defendants Ilena Silva, Rowjean Rodriguez, and 

two others were charged in an Atlantic County indictment with second-degree 

conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2(a)(1) and 2C:12-

1(b)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) 

(count two); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) 

(count three). The charges stemmed from an August 10, 2017 melee in a 

grocery store during which defendants and other members of their family 

assaulted a woman. 
3 A-4588-18

On January 3, 2019, after their respective Pre-trial Intervention Program 

(PTI) applications had been rejected, 1 defendants entered negotiated guilty 

pleas to count three in exchange for the State's dismissal of the remaining 

charges and agreement to reconsider defendants' PTI applications. If the State 

maintained its rejection and defendants' respective motions to compel 

admission were denied by the trial court, then the State would recommend 

non-custodial probationary dispositions. Following reconsideration, the 

prosecutor rejected defendant Silva's and Rodriguez's PTI applications in 

letters dated February 24 and 27, 2019, and the court denied their motions to 

compel admission on March 19 and May 23, 2019, respectively. Thereafter, 

both defendants received one-year suspended sentences, which were 

1

 "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. Roseman, 221 N.J. 611, 621 

(2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). "[A]cceptance 

into PTI is dependent upon an initial recommendation by the Criminal 

Division Manager and consent of the prosecutor." Ibid. In the past, "[t]he 

assessment of a defendant's suitability for PTI [was] conducted under the 

Guidelines for PTI provided in Rule 3:28, along with consideration of factors 

listed in N.J.S.A. 2C:43-12(e)." Ibid. However, effective July 1, 2018, "Rule

3:28, the PTI Guidelines, and the Official Comments . . . were repealed and 

replaced." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4 

(2018). "The new rules, R. 3:28-1 to -10, 'are designed to realign the PTI 

program to its original purpose to divert from prosecution first time offenders 

who would benefit from its rehabilitative components.'" Ibid. (quoting Notice 

to the Bar: Proposed New Court Rules 3:28-1 through 3:28-10 (Pretrial 

Intervention), 6 (Aug. 16, 2017)).
4 A-4588-18

memorialized in judgments of conviction entered on May 28, 2019, from 

which each now appeals.

The appeals were calendared back-to-back and, because they share 

common facts and legal issues, we now consolidate them for the purpose of 

issuing a single opinion. In her appeal, defendant Silva raises the following 

single point for our consideration: 

DEFENDANT SHOULD BE ADMITTED INTO PTI 

OVER THE STATE'S OBJECTION BECAUSE THE 

DENIAL OF PTI WAS A PATENT AND GROSS 

ABUSE OF DISCRETION.

In her appeal, defendant Rodriguez raises the following single point for our 

consideration:

BECAUSE THE STATE HEAVILY RELIED UPON 

A PRESUMPTION AGAINST ADMISSION THAT 

NO LONGER EXISTS, A REMAND FOR 

RECONSIDERATION OF [DEFENDANT'S] PTI 

APPLICATION IS REQUIRED.

For the reasons that follow, we affirm.

I.

We glean these facts from the PTI record. On August 10, 2017, 

Hammonton police officers responded to a grocery store on a report of a fight. 

The victim reported to the officers that she was physically assaulted by four 

individuals, defendants Ilena Silva and Rowjean Rodriguez and codefendants 
5 A-4588-18

Gloria Silva and Belita Rodriguez, their respective mothers. The victim stated 

she did not know the suspects but had been the target of Gloria's racial 

comments in the past. Although the victim had scratches and bruises to her 

body, arms, hands, face, and head, she refused medical treatment.

One of the responding officers watched the surveillance footage from the 

grocery store which showed the victim and Gloria exchange words at an 

intersection adjacent to the store. After the exchange, the victim entered the 

store and called 911 before crouching in an aisle to hide. Defendants arrived 

in a minivan shortly after the verbal exchange and entered the store with 

Gloria. The three suspects cornered the victim in the aisle and, after an 

additional exchange, began striking the victim in her body, face, and head area 

with closed fists. While returning defensive blows, the victim attempted to 

flee the store but her path was blocked by Rowjean, thereby allowing the 

attack to continue. Ilena also bludgeoned the victim with an unknown object 

she had grabbed from the floor. Moments later, codefendant Belita Rodriguez 

entered the store and joined the attack on the victim. Before the responding 

officers arrived at the scene, defendants exited the store but were later 

detained. 
6 A-4588-18

Upon reconsideration of defendants' respective PTI applications as well 

as their "compelling circumstances letter[s]," and after "reviewing all 

appropriate presumptions, . . . factors both for and against [d]efendant[s'] 

admission into PTI, and the public policy of the State of New Jersey," the 

prosecutor maintained his rejection. The prosecutor's February 24 and 27, 

2019 rejection letters relied initially on the "presumption against admission . . . 

for a defendant charged with violence" contained in N.J.S.A. 2C:43-

12(b)(2)(b). 

The prosecutor also relied on factors 1, 2, 3, 4, 5, 6, 7, 10, 11, 14, and 17 

of the statute to support his decision against admission. See N.J.S.A. 2C:43-

12(e)(1) ("[t]he nature of the offense"); N.J.S.A. 2C:43-12(e)(2) ("[t]he facts 

of the case"); N.J.S.A. 2C:43-12(e)(3) ("[t]he motivation and age of the 

defendant"); N.J.S.A. 2C:43-12(e)(4) ("the desire of the . . . victim to forego 

prosecution"); N.J.S.A. 2C:43-12(e)(5) ("[t]he existence of personal problems 

and character traits which may be related to the applicant’s crime and for 

which services are unavailable within the criminal justice system, or which 

may be provided more effectively through supervisory treatment and . . . 

controlled by proper treatment"); N.J.S.A. 2C:43-12(e)(6) ("[t]he likelihood 

that the applicant’s crime is related to a condition or situation that would be 
7 A-4588-18

conducive to change through his [or her] participation in supervisory 

treatment"); N.J.S.A. 2C:43-12(e)(7) ("[t]he needs and interests of the victim 

and society"); N.J.S.A. 2C:43-12(e)(10) ("[w]hether or not the crime is of an 

assaultive or violent nature, whether in the criminal act itself or in the possible 

injurious consequences of such behavior"); N.J.S.A. 2C:43-12(e)(11) 

("[c]onsideration of whether or not prosecution would exacerbate the social 

problem that led to the applicant’s criminal act"); N.J.S.A. 2C:43-12(e)(14) 

("[w]hether or not the crime is of such a nature that the value of supervisory 

treatment would be outweighed by the public need for prosecution"); and 

N.J.S.A. 2C:43-12(e)(17) ("[w]hether 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").

Regarding factors 1, 2, 3, and 10, the prosecutor described the conduct 

as "a group melee against a single individual" who was "targeted[,] . . . trapped 

and mercilessly attacked." Although the victim did not actually "suffer 

significant bodily injury," the criminal act "was assaultive in nature," and 

defendants "acknowledged that the purpose of the assault was to cause 
8 A-4588-18

significant bodily injury." 2 According to the prosecutor, "all [d]efendants 

entered the grocery store; all [d]efendants confronted the victim; and all 

[d]efendants . . . helped in their own way to culminate the crime." The 

prosecutor explained that defendant Rodriguez's attempt to mitigate her 

conduct by contending "that she only blocked the victim's escape path," and 

defendant Silva's contention "that the physical contact only resulted in minor 

injuries," did not relieve either defendant of responsibility because "no matter 

how large or small a role each [d]efendant played in the culmination of this 

cowardly act, all [d]efendants [were] legally culpable." The prosecutor 

acknowledged that defendant Silva's "young age" of "[twenty-two] years old, 

slightly weigh[ed] in favor of . . . admission." However, the prosecutor 

balanced that factor against "[d]efendant's motivation in the commission of the 

crime." Attributing both defendants' motivation "to the desire to injure another 

human being," the prosecutor found the motivation "to be reprehensible, rather 

than . . . innocuous."

As to factors 5 and 6, according to the prosecutor, neither defendant 

"pointed to [any] . . . mental or physical health factor or other consideration 

which would absolve [them] of the current charges" or "could not [be] 

2

 This acknowledgment was encompassed in defendants' entry of guilty pleas 

to third-degree aggravated assault. 
9 A-4588-18

address[ed] through the criminal justice process." Specifically, both 

defendants "denie[d] any substance abuse . . . or mental health" issue that 

contributed to the crime and would be conducive to change through 

participation in supervisory treatment. As to factors 4, 7, 11, 14, and 17, the 

prosecutor noted that the victim did not want "to forego prosecution" and 

opposed defendants' entry into PTI. Further, "the nature and circumstances of 

th[e] crime indicate[d] that punishment, and deterrence [were] appropriate in 

this situation" for the needs and interests of the victim as well as "society as a 

whole." In support, the prosecutor pointed out that defendants' conduct "was a 

purposeful crime intended to cause injury," rather than "borne out of necessity 

or a victimless lapse in judgment," and because neither defendant identified 

"any social factor contributing to the . . . offense," "prosecution would not 

exacerbate anything."

Additionally, according to the prosecutor, "abandoning criminal 

prosecution . . . would present a greater harm to society than permitting 

[d]efendant[s'] application to PTI." In that regard, the prosecutor noted that 

this was not a case in which either defendant held "a special license" or was 

"currently working." On the contrary, defendant Rodriguez "ha[d] not attained 

a GED," "express[ed no] desire to continue any education," and was "not 
10 A-4588-18

currently employed." Although defendant Silva "hope[d] to obtain a GED in 

the near future," and had a "[laudable] past work history," her future 

employment prospects would not be "at particular risk of jeopardy upon this 

conviction."

On the other hand, in mitigation, the prosecutor acknowledged that 

factors 8, 9, 12, 13, 15, and 16 weighed in favor of admission. See N.J.S.A. 

2C:43-12(e)(8) ("[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)(9) ("[t]he 

applicant’s record of criminal and penal violations and the extent to which he 

[or she] may present a substantial danger to others"); N.J.S.A. 2C:43-12(e)(12) 

("[t]he history of the use of physical violence toward others"); N.J.S.A. 2C:43-

12(e)(13) ("[a]ny involvement of the applicant with organized crime"); 

N.J.S.A. 2C:43-12(e)(15) ("[w]hether or not the applicant’s involvement with 

other people in the crime charged or in other crime is such that the interest of 

the State would be best served by processing [her] case through traditional 

criminal justice system procedures"); and N.J.S.A. 2C:43-12(e)(16) 

("[w]hether or not the applicant’s participation in pretrial intervention will 

adversely affect the prosecution of codefendants"). Specifically, although 

defendant Rodriguez "had adverse interaction[s] with law enforcement on two 
11 A-4588-18

prior occasions," the prosecutor conceded that both defendants had no prior 

"criminal conviction[s]" and "no connection with organized crime." Further, 

all four defendants "pled guilty at the same time." 

Nonetheless, "[i]n balancing the factors," the prosecutor maintained that 

admission into PTI was "antithetical to the purpose and policy of PTI." The 

prosecutor explained:

It is public policy to deter prosecution when 

deterrence will provide "early rehabilitative services 

[which are] expected to deter future criminal behavior 

[and] there is an apparent causal connection between 

the offenses charged and the rehabilitative need. . . ." 

N.J.S.A. 2C:43-12(a)(1). Further, public policy also 

indicates the need to "provide an alternative to 

prosecution to applicants who might be harmed by the 

imposition of criminal sanctions" and to provide a 

mechanism to deal with "victimless" crimes. See

[ibid.] This case does not fall within any public policy 

espoused by the PTI statute. . . . There is no 

rehabilitative treatment expected to assuage the cause 

of this crime. Further, there is no harm to 

[d]efendant[s], educationally or vocationally[,] . . . 

and there is an identifiable victim in this matter.

 

Moreover, according to the prosecutor, "PTI has a specific and 

enumerated purpose" to "divert penitent individuals who commit victimless 

crimes out of desperation or necessity in an attempt to stop the impetus for the 

commission of crimes." However, the prosecutor pointed out that this policy 

was "in juxtaposition" to defendants' attempts to deflect "blame for [their] 
12 A-4588-18

actions." In that regard, the prosecutor noted that even after entering retraxit 

guilty pleas, during the pre-sentence investigation (PSI), defendants told the 

PSI writer "[they had] done nothing wrong," thereby failing to take "[full] 

responsibilit[y] for [their] actions" and "fail[ing] to show any remorse." 

Following oral argument on defendants' respective motions to compel 

admission over the prosecutor's objection, Judge Bernard E. DeLury, Jr. 

determined that defendants "failed to overcome the burden by clear and 

convincing evidence to show that the [prosecutor's] exercise of discretion . . . 

constitute[d] a patent and gross abuse of discretion or a clear error of 

judgment." The judge found that the prosecutor "considered all appropriate 

facts and circumstances" and did not consider any "inappropriate factors." The 

judge's decision was informed by his review of the parties' oral and written 

submissions as well as the surveillance video of the incident. The judge 

explained, "[a]t its essence, this is a crime of violence . . . and the prosecutor's 

theory of the case makes [defendants] culpable either by their own hand or by 

aiding and abetting. . . ." Accordingly, the judge denied defendants' respective 

motions to compel admission and this appeal followed. 

II.
13 A-4588-18

Deciding whether to permit a defendant to divert to PTI "is a 

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 

(1996), for which a prosecutor is "granted broad discretion." State v. K.S., 220 

N.J. 190, 199 (2015). It involves the consideration of the non-exhaustive list 

of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to 

"make an individualized assessment of the defendant considering his or her 

amenability to correction and potential responsiveness to rehabilitation." 

Roseman, 221 N.J. at 621-22 (internal quotation marks omitted) (quoting State 

v. Watkins, 193 N.J. 507, 520 (2008)). Under Rule 3:28-4, in addition to 

considering the seventeen individual factors listed in N.J.S.A. 2C:43-12(e), 

"[t]he nature of the offense should be considered in reviewing the application" 

and "[i]f the crime was . . . deliberately committed with violence or threat of 

violence against another person[,] . . . the defendant's application should 

generally be rejected." R. 3:28-4(b)(1).

That said, the scope of our review of a PTI rejection is severely limited 

and designed to address "only the 'most egregious examples of injustice and 

unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. 

Leonardis, 73 N.J. 360, 384 (1977)). Thus, "[i]n order to overturn a 

prosecutor's rejection, a defendant must 'clearly and convincingly establish that 
14 A-4588-18

the prosecutor's decision constitutes a patent and gross abuse of discretion[,]'" 

meaning that the decision "has gone so wide of the mark sought to be 

accomplished by PTI that fundamental fairness and justice require judicial 

intervention." Watkins, 193 N.J. at 520 (first quoting State v. Watkins, 390 

N.J. Super. 302, 305-06 (App. Div. 2007); and then quoting Wallace, 146 N.J. 

at 582-83).

In that regard, an abuse of discretion occurs where it can be proven "that 

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. Lee, 437 

N.J. Super. 555, 563 (App. Div. 2014) (quoting State v. Bender, 80 N.J. 84, 93 

(1979)). "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 Bender, 80 N.J. at 93). "The extreme deference which a prosecutor's 

decision is entitled to in this context translates into a heavy burden which must 

be borne by a defendant when seeking to overcome a prosecutorial veto of his 

[or her] admission into PTI." State v. Kraft, 265 N.J. Super. 106, 112 (App. 

Div. 1993).
15 A-4588-18

Applying these principles here, we find no basis to disturb the judge's 

decision sustaining the prosecutor's veto, a decision we review de novo. See

State v. Denman, 449 N.J. Super. 369, 375-76 (App. Div. 2017). Defendant 

Rodriguez argues that "a remand . . . for reconsideration of her PTI 

application" is required because the prosecutor "mistakenly believed, and 

heavily relied upon the belief, that there was a presumption against admission 

for violent offenses." However, according to defendant Rodriguez, "the 

presumption against admission only applies to domestic violence." 

N.J.S.A. 2C:43-12(b)(2)(b), upon which the prosecutor relied, provides 

in pertinent part that "[t]here shall be a presumption against admission into a 

program of supervisory treatment for . . . a defendant charged with any crime 

or offense involving domestic violence . . . if the crime or offense charged 

involved violence or the threat of violence." While we agree with defendant 

that the presumption contained in N.J.S.A. 2C:43-12(b)(2)(b) does not apply to 

a violent crime not "involving domestic violence," Rule 3:28-4(b)(1) clearly 

provides that PTI "should generally be rejected" if "the crime was . . . 

deliberately committed with violence or threat of violence against another 

person," as occurred here. Thus, Rule 3:28-4(b)(1) effectively creates a new 
16 A-4588-18

presumption against admission for all offenses involving violence or threat of 

violence. 

Defendant Silva argues that she is "an ideal candidate for PTI" and 

disagrees with the prosecutor's "assessment" of the factors relied upon to 

support rejection. In particular, defendant Silva challenges the severity of the 

victim's injuries and the prosecutor's characterization of the offense, which 

Silva "characterize[s] as a petty scuffle." However, "that goes to the weight of 

the evidence, which standing alone 'is not dispositive in a court's review of the 

evaluation of [PTI] candidates.'" Nwobu, 139 N.J. at 256 (alteration in 

original) (quoting State v. Smith, 92 N.J. 143, 147 (1983)). 

As to defendant Silva's disagreement with the prosecutor's assessment of 

the remaining factors, "[t]he 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." Id. at 254. "A 

reviewing court 'does not have the authority in PTI matters to substitute [its 

own] discretion for that of the prosecutor.'" Id. at 253 (alteration in original) 

(quoting Kraft, 265 N.J. Super. at 112). We conclude defendants failed to 

clearly and convincingly establish that the prosecutor's decision went so wide 
17 A-4588-18

of the mark sought to be accomplished by PTI that fundamental fairness and 

justice require our intervention.

Affirmed.