STATE OF NEW JERSEY v. R.E.C. (18-07-0303, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 21, 2022
• Docket: A-3798-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3798-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.E.C., 1

Defendant-Appellant. ________________________

Argued January 3, 2022 – Decided January 21, 2022

Before Judges Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 18-07- 0303.

Robin Kay Lord argued the cause for appellant.

Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Jennifer B. Paszkiewicz, of counsel and on the brief).

1 We use initials to protect the privacy of the victim, R. 1:38-3(c)(9); N.J.S.A. 2A:82-46, and to protect the confidentiality of records related to applications for enrollment in the pretrial intervention program, R. 1:38-3(c)(5). PER CURIAM

After the trial court denied her motion for admission into the pretrial

intervention (PTI) program, defendant R.E.C. pled guilty to third-degree child

endangerment and was sentenced to a noncustodial probationary term. She now

appeals from a June 2, 2020 judgment of conviction. Because defendant failed

to demonstrate the prosecutor's rejection of her PTI application represented a

patent and gross abuse of discretion, see State v. Roseman, 221 N.J. 611, 624-

25 (2015), we affirm.

Evicted from his uncle's home at age fifteen, L.H. began living with

defendant, a forty-two-year-old educator, who worked at his former grade

school. Defendant became L.H.'s legal guardian; they developed a close

relationship; and within a few months, defendant engaged L.H. in various sexual

acts that lasted the better part of a year. Two months after the abuse ended, L.H.

disclosed defendant's misconduct to the authorities. L.H. said they engaged in

sexual relations every day when he was between the ages of fifteen and sixteen.

L.H. was afraid defendant would evict him if he attempted to end their sexual

relationship. His text message exchanges with defendant – whom L.H. called,

"Mom," – detailed their sexual acts. In May 2017, defendant was charged in a

two-count complaint-warrant with second-degree sexual assault, N.J.S.A.

2 A-3798-19 2C:14-2(c)(4), and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a)(1).

On May 18, 2018, following a pre-indictment conference, the assistant

prosecutor assigned to the matter sent the following email to defense counsel:

We have since spoken to the victim and he provided us with his thoughts. Without getting into specifics, he is cooperative but he also candidly acknowledged all the positive things that [defendant] did for him. In that regard, he feels sympathies towards her current situation. Considering his wishes and in an effort to resolve this matter pre-indictment, I would be willing to consider admittance into PTI. I would be willing to discuss any terms of PTI, however, one condition would have to be the forfeiture of her teaching credentials. I know that is a big part of her life but I think you would agree that there is a very good chance of revocation administratively on the merits. All of this can be wrapped up and everyone can have closure if your client has an interest in achieving that result. I believe th[e] matter is scheduled for [grand jury] the end of this month . . . . At your convenience, please review with your client and let me know if this pre- indictment proposal is acceptable.

[(Emphasis added).]

Unwilling to relinquish her teaching credentials, defendant did not apply

for PTI prior to indictment. In July 2018, defendant was charged in an eight-

count Burlington County indictment with two counts each of: first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(c); second-degree sexual

3 A-3798-19 assault, N.J.S.A. 2C:14-2(c)(4); second-degree sexual assault, N.J.S.A. 2C:14-

2(c)(3)(a); and second-degree endangering the welfare of a child, N.J.S.A.

About six months later, on January 2, 2019, defendant applied for PTI, but

her application was rejected by the criminal division manager as incomplete for

failure to file a statement of compelling reasons in view of her first- and second-

degree charges. See R. 3:28-3(b)(1) (requiring "a statement of the extraordinary

and compelling circumstances that justify consideration of the application

notwithstanding the presumption of ineligibility based on the nature of the crime

charged"); see also R. 3:28-1(d)(1) (mandating the prosecutor's consent for

crimes that carry a presumption of incarceration); N.J.S.A. 2C:44-1(d)

(generally requiring imprisonment for first- and second-degree offenses).

Defendant thereafter submitted a two-sentence letter, stating she was

forty-five years old, had no prior criminal record, was the mother of an adult

daughter, and had "a long-standing work history." She later submitted a

supplemental letter, expounding upon her compelling circumstances.

Emphasizing her life-long dedication to elementary education, defendant

claimed giving up teaching was "the hardest decision she has ever had to make,"

and she would "do everything in her power to put this isolated incident behind

4 A-3798-19 her so that she can move forward with her life with her family." Defendant

provided letters attesting to her good character from her mother, sister-in-law,

and the mother of a former student.

Upon reviewing defendant's application, the assistant prosecutor

designated by the Burlington County Prosecutor as PTI director, rejected the

compelling reasons defendant raised in support of her application and concluded

she failed to overcome the presumption against enrollment. Defendant appealed

her rejection to the Law Division. Citing the pre-indictment prosecutor's May

18, 2018 email, defendant argued the prosecutor failed to consider her individual

characteristics and amenability to rehabilitation.

Finding the director might not have been aware of the pre-indictment

negotiations between her colleague and defense counsel, the court was not

convinced the State had considered all relevant factors. The court therefore

remanded the matter only for the director to consider those negotiations and the

victim's position on PTI. See State v. Johnson, 238 N.J. 119, 129 (2019)

(reiterating a remand is appropriate where, for example, the prosecutor failed to

consider all relevant factors).

On June 6, 2019, the director issued an amplified rejection letter,

specifically addressing the issues raised by defendant. Noting defendant failed

5 A-3798-19 to accept the pre-indictment offer, the director found: "Whatever sympathy the

victim may have had for defendant's position in pre-indictment discussions a

year ago d[id] not render defendant's background idiosyncratic or unusual."

Referencing a February 13, 2019 letter 2 from the pre-indictment prosecutor to

defense counsel, the director further stated "the ultimate decision regarding PTI

was not his to make." The director also confirmed she had "thoroughly reviewed

the compelling reasons statements and character letters submitted by defendant

in support of her PTI application." Citing our Supreme Court's decision in State

v. Nwobu, 139 N.J. 236, 252 (1995), the director concluded defendant failed to

"demonstrate something extraordinary or unusual, something idiosyncratic in

[her] background."

The trial court denied defendant's ensuing appeal in a cogent written

decision. Citing the governing law, the court distinguished defendant's failure

to accept the State's pre-indictment offer from the prosecutor's revocation of a

colleague's PTI offer to the defendant in State v. Davis, 244 N.J. Super. 180,

193-94 (App. Div. 1990) (holding a change in prosecutors did not negate an

offer by the initial prosecutor, who gave assurances that the defendant would be

2 The letter was not included in the record on appeal, but defendant does not dispute its contents.

6 A-3798-19 admitted to PTI). The court acknowledged defendant's statement of compelling

reasons and character letters, but found she failed to demonstrate her reasons

were extraordinary or unusual under Nwobu. Finding the prosecutor's rejection

of defendant's PTI application did not go "so wide of the mark sought to be

accomplished by PTI," State v. Wallace, 146 N.J. 576, 583 (1996), the court

concluded defendant did not clearly and convincingly establish a patent and

gross abuse of the prosecutor's discretion.

Following her guilty plea to an amended charge of third-degree

endangering the welfare of a child by non-sexual conduct, N.J.S.A. 2C:24-

4(a)(2), defendant was sentenced to a one-year term of probation. The court

imposed various conditions, including: forfeiture of public employment and all

teaching certificates; no contact with L.H.; and an evaluation by a psychologist.

Because defendant did not admit to any wrongdoing of a sexual nature, her

conviction did not require registration under Megan's Law. This appeal

followed.

On appeal, defendant raises the following points for our consideration:

POINT I THE TRIAL COURT ERRED IN FINDING THAT THE STATE'S REJECTION OF [DEFENDANT]'S APPLICATION FOR THE [PTI] PROGRAM WAS NOT A PATENT AND GROSS ABUSE OF

7 A-3798-19 DISCRETION OR A CLEAR ERROR IN JUDGMENT.

POINT II THE STATE ARBITRARILY AND CAPRICIOUSLY REFUSED TO CONSENT TO CONSIDERATION OF [DEFENDANT]'S PTI APPLICATION.

More particularly, defendant maintains the State improperly withdrew its

consent to her application post-indictment, when the circumstances

underscoring defendant's amenability to rehabilitation had not changed and the

victim continued to support diversion. Defendant also argues the State's cursory

rejection letter failed to include a consideration of her compelling reasons

pursuant to the relevant factors set forth in N.J.S.A. 2C:43-12(e), and gave

undue weight to the nature of the offense. 3

Having reviewed the record in view of the governing law and our

"severely limited" scope of review, State v. Negran, 178 N.J. 73, 82 (2003), we

conclude, as did the trial court, the director's decision was not a patent and gross

abuse of discretion or "so wide of the mark sought to be accomplished by PTI,"

Wallace, 146 N.J. at 583, that would otherwise require our intervention. See

3 As part of her appendix on appeal, defendant included three character letters and a psychological evaluation that were submitted to the sentencing court, but not presented to the PTI court. As such, these materials are inappropriate for consideration on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014).

8 A-3798-19 State v. K.S., 220 N.J. 190, 199 (2015) (recognizing courts afford prosecutors

"broad discretion" in determining whether to divert a defendant to PTI). Instead,

the director on remand considered the relevant factors and determined defendant

failed to sustain her burden of demonstrating compelling reasons for PTI. We

affirm primarily for the reasons stated by the trial court, adding the following

comments.

Although the trial court did not specifically address the prosecutor's

consideration of L.H.'s consent to diversion, we are persuaded the director

reasonably rejected the "victim's sympathies toward defendant." As the State

correctly notes, the victim's position on PTI admission should be considered, R.

3:28-4(c), but "it is not dispositive," RSI Bank v. Providence Mut. Fire Ins. Co.¸

234 N.J. 459, 476 (2018). The victim's position is particularly precarious in this

case, where defendant was L.H.'s legal guardian and mother-figure, who

betrayed his trust and breached her duty of care. Indeed, L.H. feared ending

their sexual relationship would subject him to eviction by yet another caregiver.

It is thus not surprising that the director found the victim's sympathy for

defendant did not give rise to anything extraordinary, unusual, or idiosyncratic

about defendant's background.

9 A-3798-19 Nor are we persuaded that the director failed to consider defendant's

amenability to rehabilitation. Rather, after fully reviewing defendant's

statement of compelling reasons, including her educational background,

employment history, and post-arrest enrollment in college, the director was not

persuaded defendant had overcome the presumption against admission to PTI.

The record supports the director's assessment. Indeed, defendant's statement of

reasons focused not on remorse or concern for L.H., but rather on the difficulty

she faced in relinquishing her teaching career and her goal of "moving forward"

from "this isolated incident." Daily sexual relations with one's teenage ward

hardly can be considered an "isolated incident."

We hasten to add, as defendant correctly states, the director's rejection

letter failed to cite the factors set forth in N.J.S.A. 2C:43-12(e). 4 And we are

4 "N.J.S.A. 2C:43-12(e) sets forth a list of seventeen nonexclusive factors that prosecutors must consider in connection with a PTI application." Johnson, 238 N.J. at 128; see also R. 3:28-4 (incorporating these factors and providing for the consideration of certain additional factors, including the victim's position under paragraph (c)). Further, effective July 1, 2018, "following changes to Rule 3:28," the PTI "Guidelines were eliminated. Now, many of their prescriptions – with significant variations – are contained in Rules 3:28-1 to -10." Johnson, 238 N.J. at 128. Although defendant filed her PTI application after the rule change, the parties' briefs reference the Guidelines. We nonetheless find no reason to remand because the reasons cited in the court's decision, the record provided, and the parties' arguments permit us to consider the issues raised on appeal.

10 A-3798-19 not persuaded by the State's contention that the prosecutor need not "formally"

consider these factors "unless the State first finds compelling reasons

overcoming the presumption against enrollment." Notably, the State cites no

authority for its position, and we are aware of none. The State's review of a

defendant's statement of compelling reasons should include an assessment of the

factors set forth in Rule 3:28-4 and N.J.S.A. 2C:43-12(e), and its written

decision should reference those factors. As noted, however, in this case we are

satisfied the director considered the applicable factors, and defendant failed to

demonstrate compelling reasons for PTI.

To the extent not addressed, defendant's remaining contentions lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

11 A-3798-19