RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3301-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE DERUGIN,
Defendant-Appellant. _________________________
Argued September 11, 2024 – Decided October 8, 2024
Before Judges Marczyk and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 16-06-0809.
James H. Maynard argued the cause for appellant (Maynard Law Office, LLC, attorneys; James H. Maynard, on the briefs).
Edward F. Ray, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; William P. Miller, Assistant Prosecutor, of counsel and on the brief; Catherine A. Foddai, Legal Assistant, on the brief).
PER CURIAM Defendant, George Derugin, appeals from the Law Division's May 17,
2023 order denying without a hearing his petition for post-conviction relief
(PCR), claiming his defense counsel was ineffective for failing to advise about
or assist him in applying for the pretrial intervention program (PTI) before he
pled guilty in 2016 to endangering the welfare of a child in distributing child
pornography. After reviewing the record de novo in consideration of defendant's
arguments, we affirm, but for reasons different than those expressed by the PCR
judge.
I.
We glean the following facts and procedural history from the record.
A. The Offense, Plea, and Sentencing
In 2015, police arrested defendant, then age twenty-nine, for soliciting and
receiving numerous sexual videos and photographs from a ten-year-old child
depicting the child naked. In return, defendant sent the child sexual images of
himself. The child's parents discovered their daughter's ongoing sexually
explicit communications with defendant, a stranger to the family, on an
application on the child's Kindle device.
Subsequently, defendant was indicted and charged with first-degree
endangering the welfare of a child by manufacturing child pornography,
A-3301-22 2 N.J.S.A. 2C:24-4(b)(3); second-degree endangering the welfare of a child by
distributing child pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i); second-degree
sexual assault, N.J.S.A. 2C:14-2(b); and third-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a)(1). Defendant resided in California. He and his
mother hired a New Jersey attorney to represent him regarding these offenses.
Defendant certified, as recommended by his counsel, that he underwent a
psychological evaluation with Dr. Phillip Witt, Ph.D., and commenced sex
offender treatment with the Sexually Offending Behaviors Recovery Program
(SOBR) in California. Defendant also completed a "[t]wo-[w]eek bootcamp" to
"develop a support network" with others receiving similar therapy and
participated in Sex Addicts Anonymous. Defendant's mother maintained
communication with defense counsel, and defendant met with counsel in person
on four to five occasions and spoke by telephone on several occasions.
Defendant and his mother both certify there was no discussion with defense
counsel regarding the possibility of application or admission to PTI prior to
defendant's plea.
Defense counsel provided the State evidence of the nature and extent of
defendant's continued treatment efforts and other mitigating information during
the plea negotiations. This included Dr. Witt's written evaluation revealing
A-3301-22 3 "mixed findings." Dr. Witt characterized defendant as "an unusual man" with
"little sense of direction," which, "combined with his emotional disengagement,
suggest a relatively schizoid personality style." Although finding this
"disengaged personality style and lack of drive in any area of his life have clearly
impaired his functioning, sexually and otherwise," Dr. Witt found defendant's
lack of social and emotional engagement was also "likely to prevent him from
engaging in a contact sex offense." He recommended "relapse prevention
training," "victim empathy exercises," and "individual psychotherapy."
SOBR's Director described defendant as having "responded very
positively to therapeutic interventions" and recommended continued outpatient
therapy. She recommended no incarceration, opining "[defendant] is not a
pedophile." Her report reflects defendant's perception of his actions, including
his statement that "[t]he [i]nternet is like a fantasy world, not real. I never had
any plans to see or touch anyone."
Counsel's negotiations led the State to offer a plea avoiding the first-
degree manufacturing charge and the second-degree sexual assault charge,
which threatened sentences between ten and twenty years' and five to ten years'
incarceration, respectively. Defendant recounts counsel ultimately
recommended that he accept the State's plea offer, and defendant pled guilty in
A-3301-22 4 2016 to second-degree endangering the welfare of a child by distribution of child
pornography, N.J.S.A. 2C:24-4(b)(5)(a)(i), with the requirement of Megan's
Law registration, N.J.S.A. 2C:7-1 to -23, and other mandatory assessments
related to that offense. Critically, in exchange for defendant's plea, the State
agreed to recommend a prison term in the third-degree range, although the State
clarified it would seek the maximum five years.
At his plea hearing, defendant admitted that he knowingly distributed
fewer than twenty-five images of child pornography over several weeks between
July and August of 2015. Defendant also affirmed the voluntariness of his plea
and his satisfaction with his defense counsel, which he further confirmed in his
written plea form.
After his plea, but before sentencing, defendant's mother sent an email to
counsel inquiring if a PTI application had been made on her son's behalf and if
not, why counsel did not pursue this possibility. She recalled speaking to
defense counsel's associate, who told her, "well you remember what the judge
said."
Defense counsel submitted a sentencing memorandum containing
character attestations and details of defendant's life and treatment, which was
recognized for its quality by both the sentencing court and the prosecutor. The
A-3301-22 5 submission contained the evaluation by Dr. Witt and therapeutic reports and
letters from treatment providers. In those materials, defendant admitted to
exchanging sexually explicit videos and photographs with the ten-year-old
child, including videos of the child performing sexual acts and depicting
defendant engaged in such conduct.
At the sentencing hearing in 2017, the State emphasized the serious nature
of the offense. The prosecutor specifically described evidence showing
defendant communicated with the child for approximately a month using
"multiple screen names" and several internet services, "including one that
provided live video." He highlighted that "this was not . . . a one-time
transaction between a [thirty]-year-old man and a ten-year-old girl . . . [but] a
pattern of conduct . . . ."
The victim's mother described her anguish that her child was "stripped of
her innocence through deplorable actions of another." She made clear that
"[j]ustice may have been served in the eyes of the law, but not through [hers]."
The prosecutor urged the public import of imposing a substantial term of
incarceration for defendant and the danger this conduct poses to children in the
internet age.
A-3301-22 6 The sentencing court considered defendant's mitigating information and
acknowledged that the "plea agreement was the product of . . . some lengthy and
intense negotiations between his attorney and the State." Describing the
circumstances as "horrendous and despicable," the court noted defendant sent
the child pornographic videos including a video of himself masturbating. The
court characterized the sexual communications and images as "every parent's
nightmare." The court credited defendant's proactive therapy efforts as not
something it "normally see[s]," but observed, "what I'm dealing with here is an
individual who otherwise was leading a double life with a deep, dark, disgusting
secret, quite frankly, unbeknownst to these family and friends who have put their
good name to paper in support of him." The court was "not swayed by
[defendant's] tears in court," finding them more about his "dark secret" being
uncovered.
The court raised concern that defendant's previous form of self-support
was professional poker playing, noting, "[i]t gives me a little bit of a window
into [defendant's] life. . . . Professional poker player, gambler, gambling with
his life and, most importantly here, gambling with the health and welfare of a
vulnerable child." The court found future risk of re-offense existed and
addressed defendant, "[y]ou obviously have deep-seated mental health issues
A-3301-22 7 that need to be addressed, not only for your sake, but more importantly for
the . . . protection of the public and any other children [who] might ever cross
paths with you."
The court accordingly found aggravating factors three, the risk of another
offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for deterring the defendant
and others from violating the law, N.J.S.A. 2C:44-1(a)(9), outweighed the
singular mitigating factor seven, defendant's lack of prior criminal history,
N.J.S.A. 2C:44-1(b)(7). Emphasizing its view that defendant's mitigating
information did not support the lowest sentence, the court instead imposed four
years' imprisonment, subject to Megan's law, mandatory financial assessments,
and no contact with the victim.
Defendant did not appeal the conviction or sentence.
B. The PCR Petition and Hearing
In January 2022, defendant filed his PCR petition based solely on defense
counsel's failure to advise him of his ability to apply for admission to PTI. He
claimed his counsel's deficient performance was prejudicial as he would have
applied for PTI and would have exhausted all appeals if denied. He asserted
that his rehabilitative efforts and lack of prior history placed him in a favorable
position for PTI. Defendant submitted his own certification and that of his
A-3301-22 8 mother, as well as mitigating information, including the evaluations and
treatment records provided to both the State and the sentencing court.
The specific prosecutor who handled defendant's investigation,
prosecution, plea negotiations and hearing, and sentencing proceeding opposed
the petition. He explained that he considered this case "one of the more serious"
in his experience and offered his first-hand knowledge that "the State would
have never agreed . . . [to PTI]." The prosecutor represented he would not have
"agreed to PTI for an individual [who] asked a [ten]-year-old girl to take pictures
of her vagina and breasts." He emphasized that defense counsel effectively
advocated for defendant and provided the State with the same information relied
upon in a PCR application. The prosecutor clarified that this information,
coupled with the desire to spare the child from testifying at trial, led to the State's
final plea offer from which the State would never have departed.
The prosecutor represented that the victim's family was very involved
throughout the process and would not have foregone prosecution of the matter.
Further, the prosecutor found defendant's statement "outrageous" that the State
might have agreed to any resolution that circumvented Megan's Law sex
offender registration or legislatively mandated incarceration. The State
contended defendant was not prejudiced because "that PTI application would
A-3301-22 9 have never, ever, ever been granted. Ever." The prosecutor assured that its
position was not a categorical denial, but one specific to the facts of defendant's
case and personal characteristics.
The PCR judge issued a written decision denying the application and the
request for an evidentiary hearing. In reaching its decision, the judge recounted
the serious nature of the offense, the specific findings and concerns of the
sentencing court, and defense counsel's securing a favorable plea agreement and
sentence following months of plea negotiations.
Applying the standards of Strickland v. Washington, 466 U.S. 668 (1984)
(setting forth the two-pronged showing for ineffective assistance of counsel
requiring both deficient performance and prejudice), the PCR judge denied the
petition based on the first prong, finding that defense counsel was not deficient.
Because defendant faced prosecution of first- and second-degree crimes
involving his exchanging graphic sexual images with a ten-year-old child, the
PCR judge credited the trial prosecutor's representation that it would have
opposed a PTI application. The judge also cited to Rule 3:28-1, not in effect at
the time of defendant's pre-trial proceedings, that requires the prosecutor's
"consent" to apply for PTI when a defendant faces charges of the first- or
second-degree. Finding counsel was not deficient, the judge did not conduct a
A-3301-22 10 prejudice analysis under Strickland's second prong. The judge denied an
evidentiary hearing, finding defendant's "merely speculative assertions" did not
warrant a hearing.
II.
Defendant appeals, raising the following arguments:
POINT I
THE TRIAL COURT FAILED TO PROPERLY ANALYZE [DEFENDANT]'S INEFFECTIVE ASSISTANCE CLAIM UNDER THE FIRST PRONG OF STRICKLAND V. WASHINGTON.
A. The Lower Court Conflated (and Confused) the Analysis of the Prejudice and Performance Prongs of Strickland, by Finding that [Defendant]'s Former Trial Counsel's Performance was Not Deficient Because Former Counsel Obtained a Favorable Plea Offer and Sentence.
B. The Court Below Incorrectly Cited to a PTI Court Rule that was Not Legally in Effect When [Defendant] Would Have Applied for PTI.
C. [Defendant]'s Former Trial Counsel Failed to Properly Advise Him About His Eligibility to Apply for PTI, Which Was Based Upon His Misunderstanding about the PTI Process, as Evidenced by His Communications with [Defendant]'s Mother.
A-3301-22 11 POINT II
THE LOWER COURT'S FLAWED ANALYSIS OF THE FIRST STRICKLAND PRONG LED TO ITS DETERMINAT[I]ON THAT IT DID NOT NEED TO ASSESS THE SECOND STRICKLAND PRONG; HOWEVER, SINCE [DEFENDANT]'S FORMER ATTORNEY FAILED TO PROPERLY ADVISE HIM OF AN IMPORTANT STATUTORY RIGHT, THE SECOND PRONG ("PREJUDICE") IS SATISFIED.
POINT III
THE TRIAL COURT'S REFUSAL TO GRANT [DEFENDANT] AN EVIDENTIARY HEARING WAS A CLEAR ERROR OF LAW, AS [DEFENDANT]'S CERTIFICATION ESTABLISHED RELEVANT AND MATERIAL FACTS IN DISPUTE REQUIRING RESOLUTION VIA AN EVIDENTIARY HEARING.
Defendant contends the PCR judge erred in denying his PCR petition, or
at a minimum, his request for an evidentiary hearing. He argues that defense
counsel's performance was deficient for failing to advise him of his ability to
apply for PTI, and the judge's reliance on counsel's performance in plea
negotiations and at sentencing was improper and "wholly irrelevant." Further,
he argues that the prejudice flows directly from being denied the opportunity to
apply for PTI and, if unsuccessful, to appeal his rejection. He asserts that to
show prejudice he need not establish a reasonable probability that he would have
A-3301-22 12 been admitted to PTI and need only show the reasonable probability that he
would have applied, which he claims he demonstrated by certifying he would
have done both. 1 Defendant also urges that the PCR judge erred by relying on
language in Rule 3:28-1 requiring prosecutorial consent, as it was adopted after
his conviction, and by disregarding the import of his mitigating information in
denying his petition or, at a minimum, his request for an evidentiary hearing.
The State counters that counsel was not deficient, and defendant cannot
establish the reasonable probability that the outcome would have been different
had he been advised and applied for PTI.
Defendant does not seek to have his plea and conviction vacated. Instead,
he requests that this court remand for an evidentiary hearing to determine what,
if anything, defense counsel advised regarding PTI. Defendant further seeks a
prospective order allowing him, if successful at the hearing, to apply for PTI and
appeal any rejection. He asks this court to vacate the plea and conviction, but
"only upon a determination by the [p]rosecutor or the [c]ourt that [defendant]
should be admitted to PTI."
1 Defendant's appellate counsel further claimed at oral argument that defendant would have applied and exhausted appeals even if that resulted in the State's withdrawing its plea offer, although defendant did not certify to that representation. A-3301-22 13 III.
We review the legal conclusions of a PCR court de novo. See State v.
Harris, 181 N.J. 391, 419 (2004). In the absence of an evidentiary hearing, as
here, we may review without deference "both the factual findings and legal
conclusions of the PCR court." Id. at 421. To prevail on a PCR application, the
defendant must show by a preponderance of the evidence that he is entitled to
relief. See State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden,
the defendant must allege and articulate specific facts that "provide the court
with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J.
565, 579 (1992).
New Jersey's PCR petition serves as an "analogue to the federal writ of
habeas corpus." Preciose, 129 N.J. at 459. "[N]either a substitute for direct
appeal" for those criminally convicted, nor a vehicle to re-litigate matters
already resolved on their merits, PCR proceedings can offer the best opportunity
for ineffective assistance claims to be reviewed. Id. at 459-60.
The United States Supreme Court in Strickland, 466 U.S. at 687,
established a two-part test to determine whether a defendant has been deprived
of the effective assistance of counsel, which the New Jersey Supreme Court
adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Failure to establish either prong
A-3301-22 14 requires the denial of a PCR petition founded on an ineffective assistance of
counsel claim. See Strickland, 466 U.S. at 700. To satisfy the first prong, a
defendant must demonstrate counsel's performance was deficient and "fell
below an objective standard of reasonableness" and "counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687-88. Defendants "must allege
specific facts and evidence supporting [their] allegations." State v. Porter, 216
N.J. 343, 355 (2013). "Bald assertions" will not suffice. State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Further, reviewing courts "must
indulge a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance," and "the defendant must overcome the
presumption that, under the circumstances, the challenged action [by counsel]
'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting
Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Under Strickland's second prong, a defendant must "affirmatively prove"
"a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." State v. Gideon, 244 N.J. 538,
551 (2021) (quoting Strickland, 466 U.S. at 694). To show sufficient prejudice
when a conviction results from a guilty plea, a defendant must show a
A-3301-22 15 "'reasonable probability that, but for counsel's errors, [the defendant] would not
have pled guilty and would have insisted on going to trial,'" State v. Nuñez-
Valdéz, 200 N.J. 129, 142 (2009) (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)); see also State v. Gaitan, 209 N.J. 339, 351
(2012), and that "a decision to reject the plea bargain would have been rational
under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see
also Missouri v. Frye, 566 U.S. 134, 147 (2012) (finding as to prejudice that "it
is necessary to show a reasonable probability that the end result of the criminal
process would have been more favorable by reason of a plea to a lesser charge
or a sentence of less prison time."). An evidentiary hearing need not be granted
simply upon request for PCR, see Cummings, 321 N.J. Super. at 170; however,
a hearing may be warranted if a defendant demonstrates its necessity to develop
a sufficient factual record. See Preciose, 129 N.J. at 462.
As defendant's petition centered exclusively on counsel's alleged failure
to advise of his eligibility for PTI, we begin by recognizing the program provides
"an alternative procedure to the traditional process of prosecuting criminal
defendants . . . through which certain offenders [may] avoid criminal
prosecution by receiving early rehabilitative services expected to deter future
criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). Subject to
A-3301-22 16 certain exclusions and presumptive rejections, PTI is available to all defendants
deemed suitable for admission. See State v. Gomes, 253 N.J. 6, 20 (2023). "[A]
decision as to whether to admit a particular defendant into PTI has been treated
as a fundamental prosecutorial function." Id. at 18 (citing State v. Leonardis,
71 N.J. 85, 121 (1976)). Courts may not usurp a prosecutor's judgment in this
arena absent a "'patent and gross abuse of discretion.'" Ibid. (quoting Nwobu,
139 N.J. at 246-47).
We review the PTI framework in existence at the time of defendant's pre-
trial proceedings. Specifically, "[u]ntil 2018, the assessment of a defendant's
suitability for PTI was based on factors set out in both N.J.S.A. 2C:43-12(e) and
Rule 3:28." Id. at 17 (citing State v. Johnson, 238 N.J. 119, 128 (2019)).
Significantly, at times relevant to this appeal, pursuant to then-Rule 3:28,
Guideline 3(i), and the Official Comment, a rebuttable presumption existed
against admission for first- and second-degree offenses, providing that
applicants charged with such offenses should ordinarily be rejected unless the
prosecutor affirmatively joined in the application. Amended in 2018 to replace
the prior Guidelines, Rule 3:28 now expressly requires prosecutorial consent
before such defendants may even apply. See R. 3:28-1(d)(1). Although the PCR
A-3301-22 17 court cited to the current rule, defendant overstates the significance of the rule's
amendment.
Importantly, the post-2018 version of Rule 3:28-1 essentially "codifie[d]
past practice [now] making clear that persons charged with crimes for which
there is a presumption of incarceration . . . may not have their applications
considered without prosecutor consent." Pressler & Verniero, Current N.J.
Court Rules, cmt. on R. 3:28-1(d) (2025). The presumption set forth in prior
Guideline 3(i) was itself formidable and rebuttable only upon a defendant's
showing of "something extraordinary or unusual" of an "idiosyncratic" nature
commensurate with the sentencing showing necessary to overcome the
presumption of incarceration. Nwobu, 139 N.J. at 252 (emphasizing that the
defendant's second-degree charge was "the single most important factor" in
overcoming the presumption against PTI, and the defendant must establish
"compelling reasons" for admission into PTI). Thus, defendant faced this
significant hurdle of overcoming presumptive rejection and legislatively
mandated incarceration for these very serious first- and second-degree offenses
even before the rule's amendment.
A-3301-22 18 IV.
Against this backdrop, we consider and reject defendant's claims, after
affording defendant the favorable inferences to which he is entitled. See R.
3:22-10(b). Having reviewed the extensive record presented by defendant in
support of his petition and the State's opposition, we need not remand for an
evidentiary hearing. We will accept for purposes of argument that defense
counsel never advised defendant of his eligibility and right to apply to PTI and
that defendant would have applied had he known about the program. We further
accept that in furtherance of that application defendant would have emphasized
his personal information and mitigating sex-offender treatment efforts and
vigorously appealed any rejection by the prosecutor.
We need not determine whether counsel's performance here was deficient,
because, even assuming it was, we are satisfied that defendant did not
demonstrate any deficiency was prejudicial to him as required under Strickland's
second prong. See Gaitan, 209 N.J. at 350 (recognizing that "[a]lthough a
demonstration of prejudice constitutes the second part of the Strickland analysis,
courts are permitted leeway to choose to examine first whether a defendant has
been prejudiced." (citing Strickland, 466 U.S. at 697)).
A-3301-22 19 It was not sufficient for defendant to merely claim he would have applied
to PTI to show prejudice. He must also show the reasonable probability that he
would have been admitted to PTI had he applied. See State v. L.G.-M., 462 N.J.
Super. 357, 369-70 (App. Div. 2020) (remanding for PCR hearing based on
showing of counsel's flawed immigration advice and expressly directing the
PCR court to determine "the probability of defendant's admission into the PTI
program" had he applied and the resulting impact on the probability of
deportation).
Further, the record is clear regarding the improbability of PTI admission.
The prosecutor who was involved at all stages of this case represented the State
would never have joined in the application or admitted defendant into PTI.
Guideline 3(i) presented a weighty obstacle for defendant that he has not shown
he was likely to overcome. Citing with particularity the State's consideration of
PTI factors, including the serious nature of this offense, the great public interest
in formal prosecution of defendant and adherence to legislatively presumed
incarceration and application of Megan's Law, the victim's strong interest in
securing a conviction and opposition even to the favorable recommended
sentence, defendant's therapeutic efforts and lack of a prior record, and the
State's concerns engendered by information and conclusions in defendant's own
A-3301-22 20 expert submissions, the prosecutor unequivocally maintained that in the State's
discretion diversion was never an option. The prosecutor assured he would not
have categorically rejected defendant's admission, but instead specifically
rejected this defendant based on the particularized facts and circumstances.
We recognize that the prosecutor's virtually certain rejection would have
been subject to narrow appeal for abuse of discretion, but defendant has likewise
failed to show a reasonable probability of success on appeal to either the trial
court or this court. Given the extraordinary deference accorded to the
prosecutor's decision, the record provides no support, even prima facie, for such
a contention. The sentencing court's findings, declining to reduce the prison
term to the lower end of the sentencing range, are generally emblematic of
judicial evaluation of defendant's mitigating information. We also note that, to
exhaust PTI appeals, defendant would have risked losing a plea offer to a prison
term in the third-degree range, when he faced up to twenty years' incarceration
on the first-degree charge and possible consecutive sentencing on the second-
degree sexual assault.
Our independent review of the record taken in the light most favorable to
defendant readily undermines his claims regarding the probable outcome had he
known about the PTI program and applied. Defendant's insistence that this case
A-3301-22 21 did not involve "contact" with the child victim, and reliance on the expert
opinions that he is unlikely to commit a sexual offense involving actual physical
contact, ignore the prosecutor's reasonable view of the magnitude and impact of
his sexually explicit electronic contact and communication, continuous over a
period of time, with a ten-year-old child. Defendant caused the child to film
herself in sexually explicit acts, transmit those images to defendant, and view
sexually graphic images of defendant, nearly twenty years her senior. While
defendant characterized his conduct as pure virtual "fantasy," the prosecutor's
recognition of the real and harmful impact of that conduct on a specific child
was not likely to be deemed arbitrary.
Although defendant's therapeutic efforts were certainly positive, he
ignores the concerning aspects of those reports and this offense that the
prosecutor assured would have caused the State to reject his application, and
which made successful appeal of the PTI rejection, shrouded in deference,
improbable. To find prejudice would require speculation regarding an unlikely
outcome.
Affirmed.
A-3301-22 22