NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3906-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUSTIN A. LEE,

Defendant-Appellant.

________________________________

Submitted September 22, 2014 - Decided

Before Judges Sabatino, Guadagno, and Leone.

On appeal from the Superior Court of New 

Jersey, Law Division, Essex County, Indictment 

No. 10-09-2276.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Lon Taylor, Assistant Deputy 

Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County 

Prosecutor, attorney (Frank J. Ducoat, Special 

Deputy Attorney General/Acting Assistant 

Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

Defendant Justin A. Lee applied for admission to the pretrial 

intervention ("PTI") program after he was charged with two counts 

of aggravated assault with respect to a police officer and 

APPROVED FOR PUBLICATION

October 27, 2014

APPELLATE DIVISION

October 27, 2014
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resisting arrest.1 His application was rejected by the Essex 

County Prosecutor, despite having a positive recommendation by the 

Judiciary's PTI program director. The trial court initially 

remanded the matter to the prosecutor for reconsideration, which 

resulted in the prosecutor abiding by her original decision to 

deny PTI and providing amplified written reasons for the denial. 

After hearing further oral argument, the trial court ultimately 

deferred to the prosecutor's discretion and upheld the PTI denial.

On appeal, defendant raises several novel legal arguments 

that he did not raise in the trial court. In particular, he 

contends that PTI Guideline 3(i) in Rule 3:28, which expresses a 

presumption against PTI where the defendant's offense was 

"deliberately committed with violence or threat of violence 

against another person," is inconsistent with and preempted by the 

PTI statute, N.J.S.A. 2C:43-12(e). Defendant further contends, 

as a matter of first impression, that because he disputed the 

police officers' factual account of the incident and provided 

written eyewitness statements supporting his competing version, 

the judge reviewing the PTI denial was obligated to address the 

discrepancy by conducting an evidentiary hearing. Defendant also

argues that the PTI denial in this case must be reversed because 

 

1 The indictment also named a co-defendant, who is not a party to 

this appeal, and charged him with different crimes.
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the prosecutor engaged in a "patent and gross abuse of discretion." 

State in re V.A., 212 N.J. 1, 23 (2012). For the reasons that 

follow, we affirm.

I.

The record indicates that defendant was on the streets of

Bloomfield at about 7:40 p.m. on April 29, 2010, when approximately 

thirty young men and women were taking part in or observing a 

melee. During the course of the melee, a young woman was stabbed 

with a knife, although it is not alleged that defendant himself 

owned or held the knife at any point. Police officers responded 

to the scene. Defendant attempted to walk away. He did not heed 

warnings from the officers directing him to stand with several 

other persons up against a fence.

Although the facts at this critical point in the chronology 

are disputed, it appears that several officers and defendant then 

engaged in a struggle, leading to one of the officers sustaining 

a broken nose. The police maintain that defendant deliberately

struck the officer's nose with the back of his head. Conversely, 

defendant contends that one of the officers pulled him back by his 

dreadlocks, causing his head to bash into that officer's nose. 

In support of his version of the facts, defendant presented

notarized typed statements from two alleged eyewitnesses, as well 

as his own signed handwritten statement. The eyewitnesses both 
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stated that defendant had been approached by the police from behind 

after he had failed to respond to the police officers' commands.

However, neither eyewitness explicitly confirmed defendant's 

central claim that the police officer's broken nose had been selfinflicted.

At the time of the incident, defendant was twenty years old. 

He is a high school graduate, employed, and apparently not 

affiliated with any gangs. He has no prior adult convictions.

After being charged in the indictment, defendant applied for 

PTI. As we have already noted, the court's PTI program director 

recommended him for admission. Even so, the county prosecutor 

denied his PTI application in a January 14, 2011 letter. That

initial denial letter mainly focused on the violent nature of 

defendant's alleged conduct in resisting the police at the scene

and in injuring an officer. In particular, the prosecutor relied 

on PTI Guideline 3(i), which prescribes that "[i]f the crime was 

. . . deliberately committed with violence or threat of violence 

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

generally be rejected." See Guidelines for Operation of PTI in

New Jersey, Pressler & Verniero, Current N.J. Court Rules, 

Guideline 3(i) to R. 3:28 at 1169 (2015).

Defendant sought review of the initial PTI rejection by the 

trial court. After oral argument, Judge Michelle Hollar-Gregory
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issued a letter opinion on May 6, 2011, remanding the PTI request 

back to the prosecutor for reconsideration. In that letter 

opinion, the judge found that the prosecutor's initial rejection 

letter lacked the necessary specificity, and also did not 

sufficiently discuss certain potential mitigating factors.

After reexamining the matter, the prosecutor reached the same 

conclusion in a June 17, 2011 supplemental letter rejecting 

defendant for PTI a second time. Once again, the prosecutor 

stressed the violent nature of the street encounter and defendant's 

refusal to heed the repeated commands of several officers. 

Following additional argument, Judge Hollar-Gregory issued a

final ruling on October 25, 2011, upholding the prosecutor's denial 

of PTI. In her oral decision, the judge observed that the 

prosecutor had "addressed the concerns that this [c]ourt 

[previously] had," concerning the previous PTI denial. The judge 

also noted the statutory presumption in PTI Guideline 3(i), which 

relates to cases of alleged violent conduct. On the whole, the

judge concluded that the prosecutor's rejection, as amplified in 

her second letter, did not represent a "patent and gross abuse of 

discretion."

Defendant subsequently entered into a plea agreement with the 

State, automatically preserving through Rule 3:28(g) his right to 

appeal the trial court's decision ratifying the PTI denial. 
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Pursuant to the agreement, defendant pled guilty to third-degree 

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), in exchange for the 

dismissal of the assault charges and the State's recommendation 

to have him receive a probationary sentence. The trial court 

sentenced defendant to one year of probation, which presumably has 

now been served.

II.

On appeal, defendant makes several legal arguments for the 

first time concerning the applicable PTI standards and the process 

for judicially reviewing a prosecutor's PTI determination. He 

also contends that, given the particular factual circumstances 

here, the prosecutor abused her discretion in denying him PTI. 

More specifically, defendant raises these points in his 

brief:

POINT I

SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES 

NOT PROVIDE FOR A PRESUMPTION AGAINST PTI 

ADMISSION BASED UPON A "VIOLENT" OFFENSE, 

GUIDELINE 3(i) OF [RULE] 3:28 IS PREEMPTED BY 

THE STATUTE AND IS INVALID. (not raised below)

POINT II

SINCE THE PROSECUTOR'S RECONSIDERATION 

DECISION STILL FAILED TO PROPERLY ASSESS 

RELEVANT PTI FACTORS – EVEN ASSUMING THE 

VIABILITY OF THE PRESUMPTION AGAINST 

ADMISSION, THIS COURT SHOULD REVERSE THE TRIAL 

COURT'S DECISION AFFIRMING THE PTI DENIAL.
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POINT III

CONTRARY TO THE TRIAL COURT'S DECISION 

AFFIRMING THE PTI DENIAL, A COURT HAS 

AUTHORITY TO CONSIDER FACTUAL DISPUTES, 

ESPECIALLY IF THOSE DISPUTES ARE MATERIAL TO 

THE PTI DECISION.

POINT IV

SINCE THE PTI STATUTE, N.J.S.A. 2C:43-12, DOES 

NOT DIFFERENTIATE BETWEEN THE AUTHORITY OF THE 

"PROGRAM DIRECTOR" AND THE PROSECUTOR IN 

MAKING PTI ASSESSMENTS, THE STANDARD OF REVIEW 

OF A PROSECUTORIAL VETO OVER THE PROGRAM 

DIRECTOR'S GRANT OF ADMISSION SHOULD BE AN 

"ABUSE OF DISCRETION" STANDARD, RATHER THAN 

THAT OF "GROSS AND PATENT ABUSE OF 

DISCRETION." (not raised below)

Before commenting on these points2, we make several preliminary 

observations. PTI is "a discretionary program diverting criminal 

defendants from formal prosecution." State v. Caliguiri, 158 N.J.

28, 35 (1999). Admissions into PTI are governed both by statute,

N.J.S.A. 2C:43-12(a)–(j), and Guidelines accompanying a court 

rule, R. 3:28. See Pressler & Verniero, supra, Guideline 1 to R.

3:28 at 1166-67.

Admission into PTI is "a quintessentially prosecutorial 

function." State v. Wallace, 146 N.J. 576, 582 (1996). In 

carrying out this function, prosecutors are guided by a number of 

 

2 We shall discuss the points raised in a different order than 

presented in defendant's brief.
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different principles. Primarily, prosecutors are required to 

consider the seventeen factors listed under N.J.S.A. 2C:43-12(e).3

"[U]nless and until a defendant demonstrates the contrary, our 

judges must presume that all relevant factors were considered and 

weighed prior to a prosecutorial veto." State v. Bender, 80 N.J.

84, 94 (1979).

As we have already noted, PTI Guideline 3(i) specifies that an 

application for PTI should "generally be denied" in instances 

where a defendant "deliberately commit[s]" an offense "with 

violence or threat of violence against another person[.]" Pressler 

 

3 The seventeen factors include, among other things:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

. . . .

(7) The needs and interests of the victim and society;

. . . .

(10) Whether 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;

. . . .

(14) Whether 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 

(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.

[N.J.S.A. 2C:43-12(e).]
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& Verniero, supra, Guideline 3(i) to R. 3:28 at 1169. In the 

instances where what has been described as this "presumption" 

against PTI applies, the applicant must show, as the Guidelines 

instruct, "compelling reasons justifying the applicant's admission 

and establishing that a decision against enrollment would be 

arbitrary and unreasonable." Ibid. These compelling reasons must 

consist of "something extraordinary or unusual, something 

'idiosyncratic' in [the defendant's] background." State v. Nwobu, 

139 N.J. 236, 252 (1995) (citation omitted).

The scope of judicial review of PTI decisions is "severely 

limited[,]" and interference by reviewing courts is reserved for 

those cases where needed "to check [] the 'most egregious examples 

of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 

(2003) (quoting State v. Leonardis, 72 N.J. 360, 384 (1997) 

("Leonardis II")). Thus, on appeal, this Court reviews PTI 

decisions with "enhanced deference." State v. Brooks, 175 N.J.

215, 225 (2002). A defendant seeking to overturn rejection from 

PTI must "clearly and convincingly establish" that the decision 

rejecting his or her application was "a patent and gross abuse of 

discretion." State v. Watkins, 193 N.J. 507, 520 (2008). If a 

defendant rejected for PTI can prove that the denial "(a) was not 

premised upon a consideration of all relevant factors, (b) was 

based upon a consideration of irrelevant or inappropriate factors, 
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or (c) amounted to a clear error in judgment[,]" then an abuse of 

such discretion would "be manifest." Bender, supra, 80 N.J. at 

93.

A.

As his first legal argument, defendant contends that the 

presumption expressed in Guideline 3(i) to deny PTI in situations 

of deliberate violence conflicts with the PTI statute, N.J.S.A.

2C:43-12(e).4 He asserts that the statute only makes the "nature 

of the offense," see N.J.S.A. 2C:43-12(e)(1), and whether the 

offense is of "an assaultive or violent nature," see N.J.S.A.

2C:43-12(e)(10), mere factors in the overall analysis having no 

inherent greater importance than other factors. He argues that 

the statute, in this sense, "preempts" the presumption against PTI 

set forth in Guideline 3(i) for situations of deliberate violence. 

We disagree.

There is no irreconcilable difference between the provisions 

in the Guidelines and in the statute. The Guidelines are simply 

an effort to articulate considerations that were later codified 

in the statute. For nearly three decades, PTI has been governed 

simultaneously by the Rule and the statute which "generally 

 

4 Although this general point was not argued below, we choose to 

reach it, and other issues defendant failed to raise in the trial 

court, in our discretion. Nieder v. Royal Indem. Ins. Co., 62 

N.J. 229, 234 (1973).
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mirror[]" each other. Watkins, supra, 193 N.J. at 517 (quoting

Wallace, supra, 146 N.J. at 582). "[N]owhere does the statute 

attempt to instruct the prosecutor on the relative weight to be 

assigned [the] several criteria." Wallace, supra, 146 N.J. at 

585. 

Although Guideline 3(i) sets forth a presumption, that 

presumption can be overcome. Thus, while couched in terms of a 

"presumption," the Guideline is not a mandate. Rather it is only 

a vehicle to "elaborate[] upon statutory criteria," while still 

vesting ultimate decision making authority in the prosecutor.

Wallace, supra, 146 N.J. at 586. 

Defendant's reliance on State v. T.A.B., 228 N.J. Super. 572 

(Law Div. 1988), is inapposite. In T.A.B. there was a direct and 

inevitable conflict between the PTI court rule and the PTI statute. 

The rule provided that PTI should be limited to one year; the 

statute extended the period to three. T.A.B., supra, 228 N.J. 

Super. at 574-77. The Law Division held that there was an obvious

direct conflict in that instance and that the rule should yield.

Ibid. Here, no such direct conflict is present. The presumption 

in Guideline 3(i) is not irrebutable and may be surmounted by 

offsetting considerations that favor a defendant's admission to 

PTI.
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It is also significant that Guideline 3(i) and the seventeen 

statutory criteria for PTI have coexisted for about thirty years.

Indeed, Rule 3:28 predates the PTI statute by about two years.

Compare Pressler & Verniero, supra, Guideline 3(i) to R. 3:28 at 

1169 (approved on September 8, 1976), and N.J.S.A. 2C:43-12 (passed 

in 1978 and effective September 1, 1979); see also The New Jersey 

Code of Criminal Justice: Report on S. No. 738 before the S. 

Judiciary Comm., 1978 Leg. (1978) (recognizing that "[p]retrial 

intervention programs are currently operating in New Jersey 

pursuant to court rule"). 

As a well-established principle of statutory interpretation, 

"the legislative branch is presumed to be aware of judicial 

constructions of statutory provisions." State v. Singleton, 211 

N.J. 157, 180 (2012). Moreover, in the context of judicial 

interpretation of existing statutes, such "legislative retention 

of judicially construed language signals an agreement with the 

language, as construed." State v. Fielding, 290 N.J. Super. 191, 

193-94 (App. Div. 1996); see also State v. Frye, 217 N.J. 566, 580 

(2014) (recently applying this principle in the context of the 

Legislature's presumed awareness of case law interpreting the DWI 

statutes). 

"There is a well-accepted principle that the practical 

administrative construction of a statute over a period of years 
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without interference by the [L]egislature is evidence of its 

conformity with the legislative intent and should be given great 

weight by the Courts." Body-Rite Repair Co. v. Dir., Div. of 

Taxation, 89 N.J. 540, 545-46 (1982) (quoting Automatic 

Merchandising Council v. Glaser, 127 N.J. Super. 413, 420 (App. 

Div. 1974)); see also A.Z. ex rel. B.Z. v. Higher Educ. Student 

Assistance Auth., 427 N.J. Super. 389, 401 (App. Div. 2012) (same). 

Here, the continued application of Guideline 3(i), which has 

been in force, essentially unaltered, for decades, neither leads 

to an absurd result nor frustrates the presumed legislative intent.

In effect, Guideline 3(i) does no more than "channel prosecutorial 

discretion" in a manner that leaves the ultimate responsibility 

on the prosecutor to "weigh the various factors and to reach a 

determination." Wallace, supra, 146 N.J. at 586. We recognize 

that the Guidelines were initially adopted before the PTI statutory 

factors were codified. Even so, the Legislature's failure to 

repudiate Guideline 3(i) in its 1978 enactment, and its subsequent 

inaction leaving the Guideline intact, provides some indication 

that the Legislature does not perceive the Guideline to be 

inconsistent with the statute.

Guideline 3(i) and the PTI statutory provisions have been in 

place for decades without the disharmony alleged by defendant 

being identified as a problem, let alone a recurring one. We 
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discern no conflict between that Guideline and the overall 

statutory framework. 

B.

On a related theme, defendant also generically contends that 

the judicial review standard of a "patent and gross abuse of 

discretion," which the Supreme Court endorsed in Leonardis II, 

supra, 73 N.J. at 381, in 1977, should be modified for situations 

like the present one where the prosecutor has overridden a positive 

recommendation from the PTI program director. The State responds

that it would usurp the prosecutor's Executive Branch powers to 

require greater consideration of the views of a PTI program 

director, who is employed by the Judicial Branch. 

Without resolving this separation-of-powers question, we note 

that defendant's request to not employ the highly deferential PTI 

standard of review where the prosecutor's PTI decision disagrees 

with the PTI program director's recommendation is, in essence, a 

policy issue. That policy issue is for the Supreme Court and the 

Legislature to evaluate in their respective policymaking roles. 

It is beyond our role as an intermediate appellate court to decide 

the policy issue. State v. Hill, 139 N.J. Super. 548, 551 (App. 

Div. 1976) (noting the limited functions of an intermediate 

appellate court). There is nothing presently in the Guidelines, 

the PTI statute, or the Supreme Court's case law dictating that
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greater deference must be accorded to a program director's 

recommendation to approve a PTI application. We therefore decline

defendant's invitation to endorse this new principle.

C.

In another general argument, defendant contends that, in 

certain rare cases, such as this one, the trial court should 

conduct an evidentiary hearing where the underlying facts that 

affect a defendant's suitability for PTI have been disputed. The 

State opposes this contention, noting that if such hearings were 

required they would have the undesirable capacity to convert PTI 

rejections into "mini-trials." 

We reject defendant's claim of entitlement to an evidentiary 

hearing. As a practical matter, we agree with the State that 

requiring such hearings, even in limited instances, will unduly 

thwart the prosecutor's discretionary functions in deciding 

whether to approve PTI for a particular defendant. Such factfinding excursions before the trial court also would delay and bog 

down the efficient disposition of PTI applications and any related 

plea negotiations that might be occurring. The hearings would 

also force the State's fact witnesses to bear the burdens and 

inconvenience of an additional testimonial appearance in the case

if PTI is not granted. We discern no constitutional or statutory 

right to such an evidentiary hearing.
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This is not to suggest that, when reviewing a PTI application, 

a prosecutor has the prerogative to completely disregard evidence 

proffered by an applicant that bears upon the applicable factors 

under the Guidelines and the PTI statute. Cf. State v. Hogan, 144 

N.J. 216, 236 (1996) (analogously noting, in the context of grand 

jury presentations, a prosecutor's responsibility to not overlook 

evidence that is "clearly exculpatory" or that "directly negates 

the guilt of the accused"). A prosecutor is certainly free to 

disbelieve statements presented by defense witnesses and to 

instead credit the anticipated contrary testimony of the State's 

witnesses. Even so, the prosecutor should be expected, in the 

appropriate exercise of his or her discretion over PTI that is 

subject to judicial review, to examine all pertinent facts and 

evidence presented bearing on the PTI criteria, including the 

"nature of the offense," N.J.S.A. 2C:43-12(e)(1), and the "facts 

of the case," N.J.S.A. 2C:43-12(e)(2). 

If there is a question of credibility to be resolved 

concerning the fact witnesses, the occasion for resolving that 

question is at trial, not in a preliminary hearing before the 

trial court when it is reviewing a prosecutor's PTI denial. See

Nwobu, supra, 139 N.J. at 252 (noting that "appropriate 

administration of the [PTI] program militates against basing 

enrollment upon the weight of the evidence of guilt" (citation 
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omitted)). Nor should such a hearing be provided as a tactical 

exercise for defense counsel to obtain testimony from the State's 

witnesses that might be later used for impeachment purposes at a 

future trial.5

In sum, we reject defendant's contention that the trial court 

was obligated to conduct an evidentiary hearing to resolve whether 

his own competing narrative of the events (and that of his two 

proposed witnesses) is more credible than the version of the facts 

provided by the police officers. We agree with the State that 

such a "mini-trial" would not have been appropriate.

D.

Apart from these general legal arguments, defendant asserts 

that the prosecutor's specific decision in this case to deny him 

PTI was a "patent and gross abuse of discretion." Watkins, supra,

193 N.J. at 520. We concur with the trial judge that defendant 

has failed to sustain his heavy burden of establishing such an 

extreme abuse of the prosecutor's prerogatives.

Despite defendant's alternative version of the facts, there 

is ample evidence to support the presumption of PTI denial in 

Guideline 3(i) for acts of "deliberate" violence. It is undisputed 

that, at a minimum, some form of struggle between defendant and 

 

5 We make this observation generically, as no such objective by 

defendant's counsel in this case is apparent from the record or 

the briefs.
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the police officers took place. The police officers asserted that 

defendant assaulted them deliberately. Defendant asserted it was 

accidental, but the prosecutor did not have to accept his claim. 

The prosecutor could believe defendant's action was deliberate, 

even though N.J.S.A. 2C:12-1(b)(5)(a), one of the charged offenses

at issue here, also encompasses knowing, reckless, and certain 

negligent conduct. Moreover, the prosecutor's decision to deny 

PTI cannot be invalidated by subsequent events, namely that 

defendant later pled guilty only to resisting arrest with a 

recommendation of probation.

Although defendant certainly has several mitigating factors 

in his favor, including such things as his relative youth, his 

lack of a prior criminal conviction, his high school education,

his employment, and his apparent lack of past violent behavior,

the prosecutor sufficiently took those positive traits into 

account in weighing the PTI criteria. The prosecutor also was 

entitled to consider, on the other side of the ledger, the evidence 

indicating that defendant disregarded the commands of police 

officers who were responding to a volatile street brawl, assaulted 

two of those officers, and broke the nose of one of the officers 

while resisting them. 

As the trial judge reasonably concluded, the prosecutor's 

amplified letter adequately responded to the court's initial 
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concerns about the completeness and clarity of the reasons for PTI 

rejection expressed in the prosecutor's initial denial letter. 

The prosecutor's analysis in the second letter is sufficiently 

cogent and grounded in the facts and the applicable PTI standards 

to be upheld, even though reasonable minds might differ as to

whether defendant is a suitable candidate for admission into the 

program.

Lastly, we reject defendant's contention that the prosecutor 

engaged in impermissible "double-counting" by referring multiple 

times to the violent aspects of the facts within his analysis.

Even assuming for the sake of discussion that double-counting 

principles can apply to PTI analyses, the prosecutor appropriately 

referred to the State's version of the facts where those facts 

were relevant to the applicable PTI factors. The facts certainly 

can be discussed more than once within a PTI denial letter, insofar 

as they may bear on the discrete criteria for eligibility. 

Affirmed.