RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2021-13T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, January 30, 2015 v. APPELLATE DIVISION

ANTWAIN T. WATERS,

Defendant-Respondent.

__________________________________

Submitted September 8, 2014 – Decided January 30, 2015

Before Judges Sabatino, Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-02-00301.

John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Joseph W. Torre, Assistant Prosecutor, of counsel and on the brief).

Frank T. Luciano, P.C., attorneys for respondent (Mr. Luciano, on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Antwain T. Waters was denied Pretrial Intervention

(PTI). That denial was affirmed by a Law Division judge.

Defendant pled guilty and was scheduled for sentencing, but a

second Law Division judge granted PTI. The State appeals the order granting PTI. We reverse that order and remand for

sentencing.

I.

The following facts are set forth in the letter recommending

against PTI by the Criminal Division Manager serving as PTI

Director. On September 7, 2012, a Mahwah police officer observed

defendant driving a pickup, bearing Georgia tags, with tail lights

that were not functioning. After the vehicle exited Interstate

287, the officer conducted a motor vehicle stop, and asked

defendant for license, registration, and proof of insurance.

Defendant only produced his Georgia license. Asked again for the

registration and insurance cards, defendant looked at the glove

compartment, hesitated, and then opened it. The officer saw a

loaded handgun magazine, which defendant immediately tried to move

under the center armrest.

The officer asked if there was a weapon in the vehicle.

Defendant conceded he had a weapon in a storage compartment under

the front seat. After arresting defendant and securing his

passenger, the officer found a 9mm semi-automatic handgun in a

holster in the storage compartment, and a magazine loaded with

eleven hollow-nose bullets near the center armrest. Under the

front seat, the officer also found a case for the handgun and a

box of shotgun shells. Defendant admitted the handgun belonged

2

A-2021-13T2 to him. He claimed to have a Georgia firearms license, but it had

expired fifteen months earlier, on June 6, 2011.

The grand jury indicted defendant for second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b), fourth-degree

possession of a prohibited large-capacity ammunition magazine,

N.J.S.A. 2C:39-3(j), and fourth-degree possession of prohibited

hollow-nose bullets, N.J.S.A. 2C:39-3(f)(1). Under the Graves

Act, N.J.S.A. 2C:43-6(c), defendant faced a mandatory minimum

sentence of thirty-six months.

Defendant applied for PTI, and the prosecutor objected. The

PTI Director issued a letter denying defendant's application

because of the rebuttable presumption against PTI for a second-

degree charge. See Pressler & Verniero, Current N.J. Court Rules

Guideline 3(i) to R. 3:28 (2015). Defendant appealed to a Criminal

Part judge (the first judge). The first judge initially declined

to make a determination because the PTI denial letter provided

insufficient information, and directed the matter back to the PTI

Director to make specific findings of fact and to consider

documents defendant had submitted to the first judge.

After reconsidering defendant's application, the PTI Director

issued a much more detailed letter addressing the degree and nature

of defendant's offense, his prior criminal and probation history,

and the effect of his residence on supervision. The PTI Director

3

A-2021-13T2 again denied PTI, finding the "early rehabilitative services and

the minimal supervision offered by the PTI Program would not best

serve the interests of the State of New Jersey."

Defendant again appealed to the first judge. After hearing

argument, the first judge found that "defendant failed to prove

that the prosecutor's rejection of his PTI application was based

on a patent or gross abuse of discretion. Nor was it based upon

the prosecutor's failure to consider relevant factors."

Defendant later pled guilty to second-degree unlawful

possession of a handgun. He admitted that he knew the handgun was

in his possession, even though he "did not have a carry permit

issued by the State of New Jersey or any other state," and that

his possession of the handgun was unlawful. Under the plea

agreement, the prosecutor agreed that the mandatory period of

incarceration and presumption of incarceration would be waived,

that the prosecutor would recommend 364 days in county jail as a

condition of probation, and that defendant was permitted to argue

for a sentence of probation.

Defendant appeared for sentencing before a second Criminal

Part judge (the second judge), who instead reviewed the reasons

given by the PTI Director for denying PTI. On December 16, 2013,

the second judge issued a written opinion and order stating that

the matter was before the second judge on defendant's appeal of

4

A-2021-13T2 the denial of PTI and that "defendant's motion to appeal was

inadvertently scheduled before [the first judge]." Without any

further reference to the first judge's decision, the second judge

granted defendant's motion for PTI. The State appeals.

II.

The PTI program is governed by N.J.S.A. 2C:43-12 to -22 (the

Act), Rule 3:28, and the Guidelines for Operation of Pretrial

Intervention in New Jersey (Guidelines), reprinted in Pressler &

Verniero, supra, Guideline to Rule 3:28. They establish the

procedures for reviewing PTI applications.

It is unclear to us why this PTI appeal was decided by the

first judge, and then decided again by the second judge. The

second judge stated that the PTI appeal should have been filed

before her as the presiding judge under Rule 3:28(h). However,

that rule states that "[a]n appeal by the defendant shall be made

on motion to the Presiding Judge of the Criminal Division or to

the judge to whom the case has been assigned[.]" Ibid.1 We need

not opine which judge should have initially been assigned

defendant's PTI appeal. Regardless, nothing in the Act or the

1 Moreover, the "Assignment Judge shall designate a judge or judges to act on all matters pertaining to pretrial intervention programs." R. 3:28(a). Appeals from the denial of PTI may be decided by a "designated judge." N.J.S.A. 2C:43-12(f); R. 3:28(f). We trust that the assignment judge will clarify which judge or judges within the vicinage are designated to decide such PTI appeals, so a similar situation does not arise in the future. 5

A-2021-13T2 rules provide that a judge's decision of a PTI appeal can be

appealed to or reversed by another Criminal Part judge. Rather,

Rule 3:28(g) provides that a Criminal Part judge's denial of a PTI

appeal is challengeable by appeal to this court after a judgment

of conviction. Further, nothing suggests that a PTI appeal decided

by one judge can be decided anew by a second judge. 2 Such

duplicative and, in this case, conflicting rulings by different

Criminal Part judges are not contemplated by the Act or the rules.

Moreover, Rule 3:28(h) "does not contemplate further

proceedings [appealing the denial of PTI] at the trial level after

a guilty plea is entered." State v. Moraes-Pena,

(App. Div.), certif. denied,

(2006). Under

that rule, a PTI appeal "should be determined either before or at

the pretrial conference," Pressler & Verniero, supra, Guideline 6

to R. 3:28, "and, in any event, before a [guilty] plea or verdict."

. "A PTI appeal

should not be, and is not, a collateral attack on a guilty plea."

2 This case does not involve a defendant "seeking reconsideration of a decision denying a PTI application" by the same judge, or by another judge if that judge is unavailable. See State v. Halm,

(App. Div.), certif. denied,

(1999). In any case, our Supreme Court refused to follow Halm to the extent it suggests that PTI can be granted after a guilty verdict. State v. Bell,

, 350 n.5 (2014). 6

A-2021-13T2 As our Supreme Court recently emphasized, "[n]one of the

laudatory purposes of pretrial intervention are fostered by" the

grant of PTI after conviction.

.

"Such a procedure not only thwarts the purpose of this particular

diversionary program because the defendant has been found guilty

of a criminal offense but also nullifies a valid verdict of guilt."

"Moreover, 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," and is antithetical

to "the very nature of PTI as a pretrial diversionary program."

. Although such concerns are most serious when a

trial court grants a PTI appeal after trial as in Bell, such

concerns are also raised when a trial court grants a PTI appeal

after a valid guilty plea.

; see State v. Frangione,

(App. Div. 2004). Therefore, the granting of the PTI appeal by a

second judge after a valid guilty plea was inappropriate.3

3 We distinguish this case from a situation where a guilty plea has been withdrawn with the court's permission before the entry of judgment of conviction, as provided in State v. Slater,

(2009). Upon a withdrawal of the plea, the defendant is restored to pretrial status. Moreover, a defendant's assertion of "a colorable claim of innocence," or "the nature and strength of defendant's reasons for withdrawal,"

, may elicit facts favorable to the defendant which affect the

7

A-2021-13T2 III.

In any event, the prosecutor acted within his discretion in

denying PTI. Deciding whether to permit diversion to PTI "is a

quintessentially prosecutorial function." State v. Wallace,

(1996). "'Prosecutorial discretion in this context

is critical for two reasons. First, because it is the fundamental

responsibility of the prosecutor to decide whom to prosecute, and

second, because it is a primary purpose of PTI to augment, not

diminish, a prosecutor's options.'" State v. Nwobu,

(1995) (quoting State v. Kraft,

(App.

Div. 1993)). Accordingly, "prosecutors are granted broad

discretion to determine if a defendant should be diverted" to PTI

instead of being prosecuted. State v. K.S., __ N.J. __, __ (2015)

(slip op. at 10); see State v. Negran,

(2003)

(courts must "allow prosecutors wide latitude").

"Thus, the scope of review is severely limited."

. Reviewing courts must accord the prosecutor

"'extreme deference.'"

(quoting

). "In order to overturn a

prosecutor's rejection, a defendant must 'clearly and convincingly

establish that the prosecutor's decision constitutes a patent and

prosecutor's PTI calculus. We do not read Bell as precluding a defendant from applying or reapplying for admission into PTI after a plea is withdrawn under Slater. 8

A-2021-13T2 gross abuse of discretion.'" State v. Watkins,

(2008). "[I]nterference by reviewing courts is reserved for those

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

injustice and unfairness.'" State v. Lee,

(App. Div. 2014) (quoting

(internal quotation marks omitted)).

We must apply the same standard as the trial court.

Therefore, we review the second judge's reversal of the

prosecutor's decision de novo. We must hew to that standard of

review.

The eligibility criteria for the PTI Program are primarily

set forth in Guideline 3 and in N.J.S.A. 2C:43-12(e) of the Act.

As evidenced by the prosecutor's brief and argument before the

first judge, the prosecutor primarily relied on (A) the presumption

against PTI for defendants charged with second-degree offenses

under Guideline 3(i); (B) the nature of the offense and facts of

the case under Guideline 3(i) and N.J.S.A. 2C:43-12(e)(1)-(2); and

(C) the public need for prosecution of such cases, N.J.S.A. 2C:43-

12(e)(14). The prosecutor also noted (D) the effect of defendant's

residence in Georgia on supervision under Guideline 3(b). We

consider each in turn.

9

A-2021-13T2 A.

Guideline 3(i) provides that "[a] defendant charged with a

first or second degree offense . . . should ordinarily not be

considered for enrollment in a PTI program except on joint

application by the defendant and the prosecutor." Pressler &

Verniero, supra, Guideline 3(i) to R. 3:28. This provision

represents a "decision to prevent serious offenders from avoiding

prosecution in ordinary circumstances," and creates "a presumption

against diversion." State v. Caliguiri,

(1999);

see

; Pressler & Verniero, supra,

Official Comment on Guideline 3.

A defendant may rebut the presumption by "showing compelling

reasons justifying the applicant's admission and establishing that

a decision against enrollment would be arbitrary and

unreasonable." Pressler & Verniero, supra, Guideline 3(i) to R.

3:28. "[A] defendant must demonstrate something extraordinary or

unusual," not merely "that the accused is a first-time offender

and has admitted or accepted responsibility for the crime."

. If a defendant "fails to rebut the

presumption against diversion," then "[r]ejection based solely on

the nature of the offense is appropriate."

.

10

A-2021-13T2 Here, the second judge concluded that the prosecutor "based

[his] decision on a per se rule to exclude defendants who are

charged with Graves Act offenses," and "overly emphasized the

ineligibility of defendant into PTI due to his second degree

charge." To the contrary, the prosecutor appropriately relied on

Guideline 3(i)'s presumption while recognizing that it could be

rebutted. The prosecutor acknowledged defendant had no prior

involvement in the criminal justice system, had a legitimate

business, and was the primary parent of a twelve-year-old child.

The prosecutor reviewed and considered all the papers submitted

on defendant's behalf, including letters from family members.

The prosecutor concluded that the facts "certainly support

good reasons why defendant should not receive the mandatory prison

term associated with his charges but they are not extraordinary

or unusual as to overcome the presumption against PTI," and were

not "compelling enough to get into PTI." This was not a patent

and gross abuse of discretion. See State v. Brooks,

(2002) (upholding the denial of PTI even though "defendant has

presented numerous letters attesting to his good character, and

has asserted other facts in mitigation as part of his

application").

The second judge nonetheless concluded the PTI Director and

the prosecutor overlooked defendant's submissions. The second

11

A-2021-13T2 judge cited the PTI Director's statement that "[i]t was not until

the PTI appeal was filed that this office came into possession of

the material." However, the PTI Director was referencing

defendant's first PTI appeal, in which defendant submitted

materials to the first judge that had not been submitted to the

PTI Director. After the first judge remanded the matter to the

PTI Director, the PTI Director explicitly "reviewed [the]

additional material submitted at the time of the [first] PTI

appeal," and found that "[t]he additional material submitted by

the defendant fails to rise to the level of rebutting the

presumption against enrollment." Regardless, it is the prosecutor

whose decision is being reviewed, and the prosecutor considered

defendant's materials. Thus, the second judge erred in concluding

that "defendant's situation could not have been fully assessed on

an individualized basis."

B.

In addition to the presumption against PTI, the prosecutor

cited the nature of the offense and the facts of the case. He

noted that, although defendant lawfully purchased the gun in

Georgia, defendant's Georgia firearms license expired fifteen

months before he brought the firearm into New Jersey. The

prosecutor believed that the gun was not being carried legally in

New Jersey or Georgia, and that defendant had not offered a

12

A-2021-13T2 legitimate reason for carrying the gun. The prosecutor noted that

defendant also illegally possessed a large-capacity magazine with

hollow-nose bullets, and that keeping the gun and ammunition in

the passenger compartment of the vehicle posed a safety issue.

Based on an internet printout supplied by defendant, the

second judge found that "the manner in which the defendant

maintained the gun and ammunition magazine in his vehicle was

consistent with the laws of Georgia." However, defendant failed

to show that carrying the firearm was legal under Georgia law.4

The handgun was not in its case, as required under Georgia Code

Annotated § 16-11-126(c) (2014), which states: "Any person who is

not prohibited by law from possessing a handgun or long gun may

have or carry any handgun provided that it is enclosed in a case

and unloaded." See Hertz v. Bennett,

, 94 n.3 (Ga.

2013).

Another Georgia provision states that "[a]ny person who is

not prohibited by law from possessing a handgun or long gun who

is eligible for a weapons carry license may transport a handgun

or long gun in any private passenger motor vehicle."

(d) (2014). However, it is not clear that

4 Defendant submitted a certification from a Georgia attorney that the laws of Georgia do not prohibit possessing hollow-nose bullets or large-capacity magazines, but the certification conspicuously did not address whether defendant's carrying of the handgun was legal under Georgia law. 13

A-2021-13T2 defendant is eligible for a weapons carry license. A "person who

has been convicted of any misdemeanor involving the use or

possession of a controlled substance" may be ineligible for a

weapons carry license.

(b)(2)(I) (2014).

Defendant pled guilty to a misdemeanor of operating a vehicle

under the influence of alcohol and drugs.

Even if defendant could carry or transport a handgun in

Georgia without a valid weapons carry license, it is undisputed

that he could not do so legally in New Jersey under N.J.S.A. 2C:39-

5(b). "New Jersey need not observe the lowest common denominator

of gun control among the various states." In re Two Seized

Firearms,

, cert. denied,

,

,

(1992). "[A] non-resident gun owner may

[not] avoid the sanctions of New Jersey's gun-control laws on the

basis that possession of the weapon was legal in the owner's state

of residence and that the owner was merely transporting weapons

through New Jersey," even where he claims to lack "criminal intent

and knowledge that New Jersey would regard the possession as

illegal." Id. at 85-86.

Nor was defendant in compliance with federal law. Under 18

U.S.C.A. § 926A, a person is only permitted

to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such 14

A-2021-13T2 firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

Contrary to § 926A, defendant had both the handgun and

ammunition readily accessible in the passenger compartment of the

pickup, and neither the gun nor the ammunition was in a locked

container. See State v. Reininger,

(App.

Div.), certif. denied,

(2013), cert. denied, __ U.S.

__,

,

(2014). He thus failed to

meet § 926A's "sensible accommodation of each state's right to

ensure the safety, health, and welfare of its own citizens." Two

Seized Firearms, supra,

.

In addition to unlawfully possessing a handgun, defendant

also possessed a large-capacity ammunition magazine containing

hollow-nose bullets. Such magazines and bullets are particularly

dangerous items prohibited in New Jersey. See N.J.S.A. 2C:39-

3(f)(1), (j).5 Defendant had the handgun under the driver's seat

5 A large-capacity magazine "is capable of holding more than 15 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm," such as defendant's 9mm pistol. N.J.S.A. 2C:39-1(y). Hollow-nose bullets, also known as hollow-

15

A-2021-13T2 and the large-capacity magazine with hollow-nose bullets in the

glove compartment, both unsecured in the passenger compartment and

readily accessible to the vehicle's occupants. As the prosecutor

noted, this posed an obvious safety risk to the officers. The

second judge's finding that the gun and ammunition were in "distant

locations severely lowering the risk of harm posed to the officers"

did not reflect the appropriate deference to the prosecutor's

reasonable view of the facts.

Although defendant submitted a certification that he lawfully

purchased the handgun, large-capacity magazine, and hollow-nose

bullets in Georgia, he notably did not certify he was unaware that

carrying them into New Jersey is illegal. Indeed, the facts

suggest that he was aware of that illegality: he initially did not

disclose to the officers that he had a gun; he hesitated to open

the glove compartment; he attempted to hide the large-capacity

magazine; and only after that attempt failed, and in response to

direct questioning, did he admit he had a gun.

The second judge cited a letter from defendant's passenger,

which stated that they were driving from a client's location in

point or dum-dum bullets, are "designed to expand upon entering a target," Model Jury Charge (Criminal), "Possession of Prohibited Weapons and Devices" (2013), and thus "to inflict the maximum amount of injury," Lambert v. State,

(Ind. 1969); see United States v. Philiposian,

(3d Cir. 2001). 16

A-2021-13T2 Pennsylvania to another client's location in New York. However,

defendant failed to show that he had any reason to carry on that

journey the handgun, let alone the hollow-nose bullets and large-

capacity magazine. Nor did he show he could "lawfully possess and

carry such firearm" in either of those states. 18 U.S.C.A. §

926A; see

(a) (2014);

(1) (Consol. 2014).

C.

As the prosecutor asserted, New Jersey has a strong interest

in enforcing its gun laws to deter the illegal handling and

transportation of firearms. As our Supreme Court stated in Two

Seized Firearms, supra,

: "As one of the most

heavily traveled corridor states in the nation, New Jersey has a

particularly compelling interest in regulating the carriage of

weapons within its borders." Carrying "handguns in one's car or

on one's person along the highways is, apart from certain

exemptions, 'clearly forbidden unless the person carrying the

handgun has a permit issued in accordance with [N.J.S.A. 2C:58-

4].'"

at 87-88 (quoting State v. Hatch,

(1973)). There is "'nothing in the statute which suggests any

flexibility or any intent to exclude nonresidents within or passing

through New Jersey from the strict permit requirement.'"

at

88 (quoting

).

17

A-2021-13T2 Since the 1992 decision in Two Seized Firearms, our

Legislature has shown increasing concern about the unlawful

possession of handguns. The Legislature elevated it to a second-

degree offense and imposed a thirty-six-month minimum term. L.

2007, c. 284, § 1, eff. Jan. 13, 2008; L. 2007, c. 341, § 5, eff.

Jan. 13, 2008. The Legislature subsequently raised the minimum

term to forty-two months. L. 2013, c. 113, § 2, eff. Aug. 8,

2013. See N.J.S.A. 2C:39-5(b), 2C:43-6(c).

Moreover, "policy determinations, such as which offenses to

aggressively prosecute, fall within the domain of the prosecutor,

not the judiciary."

. "[W]e

cannot say that it was '"arbitrary, irrational or otherwise an

abuse of discretion" for the prosecutor to have assigned as much

weight to the gravity of the offense as [he] apparently did in

this case.'"

(quoting

).

D.

The Guidelines state that the prosecutor shall consider the

"[r]esidence" of the defendant as a relevant circumstance.

Pressler & Verniero, supra, Guideline 3(b) to R. 3:28. "Only

those defendants are ineligible who reside such distances from New

Jersey as to bar effective counseling or supervisory procedures."

Ibid. Residents of other states may participate in out-of-state

18

A-2021-13T2 programs "with the approval of the prosecuting attorney." Pressler

& Verniero, supra, Official Comment on Guideline 3.

Defendant argued that he could participate in Georgia's First

Offender program, but that program appears to relate only to

defendants convicted in Georgia.

(2014).

He also cited the Interstate Compact for Adult Offender

Supervision, codified at N.J.S.A. 2A:168-26 to -39. However, the

Rules of the Interstate Commission for Adult Offender Supervision

(ICAOS) state that "[p]ersons subject to supervision pursuant to

a pre-trial release program, bail, or similar program are not

eligible for transfer under the terms and conditions of this

compact." ICAOS Rule 2.106. 6 Thus, persons on pre-trial

intervention are ineligible.7 Therefore, defendant is ineligible

for transfer of supervision under ICAOS Rule 3.101, and New Jersey

cannot compel Georgia to supervise him under the Interstate

Compact, as the prosecutor pointed out.

The second judge asserted that defendant could be supervised

by a New Jersey probation officer by phone or by making scheduled

6 ICAOS, Step-By-Step ICAOS Rules (eff. March 1, 2014), available at http://www.interstatecompact.org/Legal/RulesStepbyStep/ Chapter2/Rule2106.aspx. The PTI Director referenced ICAOS Rule 2.106 but miscited it as ICAOS Rule 2.107. 7 ICAOS, Eligible Offenders Must Transfer to Relocate (updated Feb. 2, 2014), available at http://www.interstatecompact.org/Portals/ 0/library/training/charts/Eligbility.pdf. 19

A-2021-13T2 visits to New Jersey. However, the PTI Director and prosecutor

could properly conclude that defendant, a Georgia resident, was

at such a distance from New Jersey "as to bar effective counseling

or supervisory procedures." Pressler & Verniero, supra, Guideline

3(b) to R. 3:28. Given this "rational basis" for denying PTI,

there is no violation of defendant's right to equal protection.

See State v. Senno,

(1979).

IV.

The second judge also ruled that the PTI Director and

prosecutor failed to adequately consider all of the relevant

factors. However, a court must "presume that a prosecutor

considered all relevant factors, absent a demonstration by the

defendant to the contrary."

.

"This presumption makes it very difficult to reverse a prosecutor's

decision on that basis."

. Defendant

made no such demonstration here.

The second judge faulted the prosecutor for not explicitly

discussing the absence of certain factors, for example, whether

"the crime is of an assaultive or violent nature," N.J.S.A. 2C:43-

12(e)(10). However, the prosecutor need not "provide a defendant

with a detailed report outlining every step taken en route to his

decision." State v. Sutton,

(1979). "At a

minimum, the prosecutor 'should note the factors present in

20

A-2021-13T2 defendant's background or the offense purportedly committed which

led [the prosecutor] to conclude that admission should be denied.'"

(quoting

). Here, the prosecutor met that minimum, stating the reasons

for rejecting PTI "with 'sufficient specificity so that defendant

has a meaningful opportunity to demonstrate that they are

unfounded.'"

The prosecutor also considered the mitigating

factors advanced by defendant.

The second judge believed that the State failed to assign the

appropriate weight to the factors. However, the Legislature

"clearly intended to leave the weighing process to the prosecutor."

. Rule 3:28 and the Guidelines

similarly leave it to "the prosecutor to weigh the various factors

and to reach a determination."

.

Here, "the prosecutor weighed the relevant and material factors

and reached a conclusion that defendant was not an appropriate

candidate for PTI."

. Nonetheless, the second judge

"performed a similar weighing process and reached a contrary

conclusion."

However, a court can "not evaluate a PTI

application 'as if it [stands] in the shoes of the prosecutor.'"

State v. Hoffman,

(App. Div. 2008)

(quoting

). The second judge's

written opinion, while thorough, "performed what was, in essence,

21

A-2021-13T2 a de novo review of defendant's application," and "afforded little,

if any, deference to the decision of the Prosecutor. This was

improper."

.

The second judge properly criticized the PTI Director for

considering defendant's five arrests for misdemeanor motor vehicle

violations in Georgia and Kentucky, his pleas of guilty and nolo

contendere to two such violations, and his resulting twelve-month

probation. "[B]ecause motor vehicle violations are not 'crimes,'

. . . defendant's past driving infractions do not support his

disqualification from PTI admission pursuant to N.J.S.A. 2C:43-

12e(9)."

; accord State v. McKeon,

(App. Div. 2006). Moreover, "prior

dismissed charges may not be considered for any purpose," unless

undisputed facts, or facts found at a hearing, "support the truth

of the allegations in defendant's dismissed . . . charges." K.S.,

supra, slip op. at 2, 10. However, as the prosecutor expressly

stated, the prosecutor did "not rely on any of [defendant's] motor

vehicle arrests [or violations] or his probation as a reason for

not giving him PTI, even though the PTI Director did." Thus, this

was not a basis to overturn the decision of the prosecutor.

The second judge also noted that the prosecutor had

recommended PTI for other defendants, but the second judge did not

cite other defendants who had been charged with similar offenses.

22

A-2021-13T2 In any event, "prosecutorial decisions in PTI matters are primarily

individualistic in nature," and thus ordinarily "a defendant will

not prevail merely because he can demonstrate that, unlike himself,

others who have been charged with similar offenses have been

diverted into PTI."

.

Even if a "'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 judgment,'" that

constitutes only "'an abuse of discretion.'"

. "A 'patent and gross abuse of discretion' is more

than just an abuse of discretion as traditionally conceived; it

is a prosecutorial decision that 'has gone so wide of the mark

sought to be accomplished by PTI that fundamental fairness and

justice require judicial intervention.'"

. "'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

Pretrial Intervention.'"

(citation omitted). There

is no indication that such subversion occurred here.

23

A-2021-13T2 V.

The second judge and defendant also cited the Attorney General

Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct.

23, 2008) (2008 Directive).8 The 2008 Directive stated:

In light of the Legislature's recent policy decision to significantly upgrade the seriousness of firearm offenses, it is expected that prosecutors will consent to a defendant's admission to PTI only in rare cases involving extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession (e.g., the defendant has no prior involvement with the criminal justice system, he or she lawfully acquired and possessed the firearm in a different state and the defendant's presence in New Jersey was incident to lawful travel.)

[Id. at 8.]

The 2008 Directive does not itself state that a prosecutor

is compelled to consent to PTI. Rather, it "authorizes"

prosecutors to consent "only in rare cases involving extraordinary

and compelling circumstances." Id. at 4-5, 9. It precludes

consent absent approval by the County Prosecutor or the Director

of the Division of Criminal Justice, which in turn must be

supported by a statement of reasons provided to the Attorney

General. Id. at 4-5, 9. By contrast, it allows a prosecutor to

8 The 2008 Directive, and the Attorney General's Correction to "Graves Act" Directive Regarding Extend Term Eligibility (Nov. 25, 2008), are available at http://www.state.nj.us/lps/dcj/ agguide/pdfs/Graves-Act-Oct23-2008.pdf. 24

A-2021-13T2 follow the presumption of ineligibility and object to PTI without

notice or approval. Id. at 9. Nothing in the 2008 Directive

states that it creates a right to PTI. Rather, it proclaims its

purpose to ensure "strict enforcement of the presumption of

ineligibility for pre-trial intervention in Graves Act cases."

Id. at 8.

Defendant argues that he falls within the 2008 Directive's

example of a "rare case [] involving extraordinary and compelling

circumstances" because he had no prior involvement with the

criminal justice system, he lawfully acquired the firearm in a

different state, and his presence in New Jersey was apparently

incident to lawful travel. Defendant contends the prosecutor was

compelled to grant PTI. Ibid. However, it is unclear that

defendant meets all the criteria in the example because he failed

to show he could lawfully "possess," carry or transport the firearm

in Georgia. See ibid. Additionally, he allowed his firearms

permit to expire, illegally possessed a large-capacity magazine

and hollow-nose bullets, and kept them in the passenger compartment

with the gun, unsecured and readily accessible. The prosecutor

was free to give weight to those unfavorable facts.

The second judge gave no weight to those unfavorable facts,

and suggested that the 2008 Directive's example compelled the

prosecutor to grant PTI. We need not decide whether 2008

25

A-2021-13T2 Directive's example ever compels a prosecutor to consent to PTI.

It is sufficient to hold here that it does not do so where the

defendant does not meet all the criteria in the example, or where

there are other facts unfavorable to the defendant on which the

prosecutor can properly rely as a basis for denying PTI.

"A reviewing court does not have the authority in PTI matters

to substitute [its own] discretion for that of the prosecutor,"

(internal quotation marks

omitted), "even when 'the prosecutor's decision is one which the

trial court disagrees with or finds to be harsh,'"

(quoting

). Rather, courts must "view the prosecutor's decision

through the filter of the highly deferential standard of review."

. Under that severely limited

standard, we cannot say that defendant carried his "heavy burden"

to clearly and convincingly establish that the prosecutor's

decision was a patent and gross abuse of discretion, or constituted

an egregious example of injustice and unfairness.

;

;

.

VI.

On September 24, 2014, long after this appeal was filed, the

Attorney General issued a memorandum entitled Clarification of

26

A-2021-13T2 "Graves Act" 2008 Directive with Respect to Offenses Committed by

Out-of-State Visitors From States Where Their Gun-Possession

Conduct Would Have Been Lawful (Sept. 24, 2014) (2014

Clarification).9 After the appeal was submitted, the State filed

a motion for supplemental briefing to address the impact, if any,

of the 2014 Clarification on this case. We granted the State's

unopposed motion. In the supplemental briefing, the parties have

taken opposite positions on the applicability and effect of the

2014 Clarification.

The 2014 Clarification states that, "[t]o the extent

practicable, the provisions of this clarifying memorandum shall

apply to all pending cases." Id. at 10. The State argues that

the 2014 Clarification would apply to defendant's case because it

is pending on direct appeal, and that it has no effect on the

State's appeal, but that if it were applied here it would not

result in the grant of PTI. Defendant argues that applying the

2014 Clarification to his appeal would violate due process, but

that its factors support PTI if it is applied here.

In resolving this dispute, we point out that the 2014

Clarification is simply a statement of the current policy of the

Attorney General. It does not change the criteria for PTI set

9 The 2014 Clarification is available at http://www.nj.gov/oag/ dcj/agguide/directives/Graves-Act-clarification-2014.pdf (Sept. 24, 2014). 27

A-2021-13T2 forth in the Act, Rule 3:28, or the Guidelines. It also does not

alter the validity or finality of judicial orders based on those

criteria. If a judicial order regarding PTI has become final, the

issuance of a new policy would not affect the validity or non-

appealability of that order. If a judicial order denying PTI is

on appeal, a defendant may not argue the order was invalid because

of a subsequent change of prosecutorial policy. If a judicial

order granting PTI is on appeal, the State may not argue that

order was invalid because of its own unilateral change of policy.

We must determine the validity of a judicial order by applying the

law, not the shifting policies of the parties, even the Attorney

General.

Of course, the Attorney General is free to adopt new

prosecutorial policies within the wide range of discretion granted

by the law. Like any litigant, the State may change its position

on appeal, withdraw its appeal, or attempt to settle the appeal

prior to disposition by this court. Here, the State instead has

brought the Attorney General's clarified policy to our attention,

and has argued why defendant still does not qualify for PTI under

that policy. We appreciate the State's clarified explanation of

its position. However, we hold the validity of a trial court's

order regarding PTI must be determined based on the applicable

law, not on subsequent changes in prosecutorial policy.

28

A-2021-13T2 In any event, the outcome here would not be affected by

application of the 2014 Clarification. It advises prosecutors to

avoid incarceration of certain out-of-state defendants either by

consenting to PTI, or by tendering a plea offer of a non-custodial

probationary sentence, 2014 Clarification, supra, at 1, as the

State did here. The 2014 Clarification applies only where the

out-of-state defendant "produces proof that: 1) the firearm had

been lawfully acquired in another jurisdiction, 2) defendant's

possession would have been lawful in his or her home jurisdiction,

and 3) defendant was under the misimpression that such possession

was lawful in New Jersey." Id. at 4. The 2014 Clarification

"presupposes that the three circumstances enumerated above are

undisputed." Ibid. Thus, the 2014 Clarification is inapplicable

here because the second circumstance is disputed, and defendant

offered no proof of the third circumstance.

Finally, the 2014 Clarification instructs prosecutors to

consider specified facts, several of which weigh against PTI here.

Id. at 4-8. For example, the handgun and its ammunition were not

kept where they "would present less accessibility and thus less

exposure to others," but instead were both "kept in the passenger

cabin of [the] vehicle." Id. at 6. Moreover, during the stop

defendant did not "volunteer[] information about the firearm to

police without being prompted to do so," but instead only

29

A-2021-13T2 "admitt[ed] to the presence of the firearm in response to a police

question." Id. at 7.

VII.

Accordingly, we must reverse the order admitting defendant

to PTI. We remand the case for sentencing. We do not retain

jurisdiction.

30

A-2021-13T2