NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2038-21 A-3312-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHEN G. GROGAN, a/k/a STEPHAN G. GROGAN,
Defendant-Appellant. _________________________
Submitted October 25, 2023 – Decided November 22, 2023
Before Judges Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Union County and Sussex County, Indictment Nos. 18-12-0755, 19-05-0129 and 19-10-0670.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the briefs).
William A. Daniel, Union County Prosecutor, attorney for respondent in A-2038-21 (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). Annmarie Taggart, Acting Sussex County Prosecutor, attorney for respondent in A-3312-21 (Shaina Brenner, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
In these back-to-back appeals, which we consolidated for the issuance of
a single opinion, defendant Stephen G. Grogan seeks to vacate two December
10, 2021 judgments of conviction from Union County, and a May 13, 2022
judgment of conviction from Sussex County. The judgments resulted from
defendant pleading guilty under three indictments to the fourth-degree offense
of invasion of privacy, N.J.S.A. 2C:14-9(b)(2). Defendant also seeks reversal
of the May 29, and December 28, 2020 orders denying his appeals from the
Union County Prosecutor's Office's (UCPO's) decision to deny him entry into
the pre-trial intervention (PTI) program. Additionally, he seeks reversal of the
May 11, and August 25, 2020 orders denying his appeal from the Sussex County
Prosecutor's Office (SCPO's) rejection of his request to enter PTI or,
alternatively, the Veteran's Diversion Program (VDP).1 We affirm defendant's
convictions and all challenged orders.
1 Defendant does not appeal from the denial of his VDP appeal in Union County. A-2038-21 2 I.
We glean the facts from the motion records. Defendant is a combat
veteran of the United States Army. He also served in the United States National
Guard for approximately twenty years until he was honorably discharged.
According to defendant, the psychological trauma he suffered during his active
deployment in Iraq from 2004 to 2005 led to the deterioration of hi s mental
health and, ultimately, his criminal convictions.
Defendant's legal difficulties began in June 2018, when he was in Utah
for an annual National Guard training and was arrested and charged with
voyeurism by electronic equipment (a cell phone), a class A misdemeanor.
Following his arrest, he admitted to photographing the undergarments of female
shoppers at a local mall.
When defendant returned to New Jersey, he admitted himself into a
Veterans Administration inpatient suicide prevention program, where he was
diagnosed with severe depression, severe anxiety, suicidal ideation, severe
alcoholism, and a paraphilia-voyeuristic disorder. After he was discharged, he
enrolled in an outpatient mental health treatment program.
On July 27, 2018, defendant was arrested and charged in Union County
with third-degree invasion of privacy, N.J.S.A. 2C:14-9(b)(1), as well as fourth-
A-2038-21 3 degree invasion of privacy. The charges stemmed from him using his cell phone
to "film up" a woman's skirt while she was shopping at a local store.
Subsequently, defendant engaged in psychotherapy and was diagnosed with
post-traumatic stress syndrome.
In October 2018, defendant applied for admission into PTI in Union
County. On November 30, 2018, the UCPO rejected his application. The
following month, a Union County Grand Jury returned Indictment No. 18-12-
00755, charging defendant with one count of fourth-degree invasion of privacy,
based on the July 2018 incident.
On November 1, 2018, defendant was arrested and charged with lewdness
after using his cell phone to take pictures up the skirt of a female shopper at a
supermarket in Montague. A Sussex County Grand Jury returned Indictment
No. 19-05-00129, charging him with one count of fourth-degree invasion of
privacy due to this incident.
In April 2019, defendant again applied for admission into PTI in Union
County; he also sought entry into the County's VDP. The next month, the UCPO
rejected both of his applications. Also, in May 2019, defendant applied for
admission into PTI and the VDP in Sussex County. The SCPO subsequently
rejected his application for both diversionary programs.
A-2038-21 4 While on pretrial release for the Sussex County offense, on July 12, 2019,
defendant was arrested again, this time for using his cell phone to film up a
woman's skirt while she shopped at a store in Union Township. Accordingly, in
October 2019, a Union County Grand Jury returned Indictment No. 19-10-
00670, charging defendant with another count of fourth-degree invasion of
privacy.
Following the second indictment in Union County, defendant again
applied for PTI. On December 6, 2019, the UCPO rejected his application,
citing defendant's open cases in Utah and Sussex County, and the fact the SCPO
previously denied defendant entry into PTI. The UCPO also explained it found
it unlikely defendant would resolve his Sussex County and Utah matters within
thirty days of entry into PTI, a standard condition for entry into the program.
On February 24, 2020, defendant appealed from the UCPO's rejection of
his PTI applications under both indictments. After hearing argument, Judge
Daniel R. Lindemann entered an order on May 29, 2020, denying defendant's
appeal. In a thoughtful written opinion accompanying the May 29 order, Judge
Lindemann stated defendant's PTI appeal was time barred under Rule 3:28-6,2
2 Rule 3:28-6(a) states, in part: "[a] defendant challenging the decision of . . . a prosecutor's refusing to consent to the defendant's enrollment into the [PTI]
A-2038-21 5 and that "the record [did] not provide sufficient cause to justify [d]efendant's
delay to [warrant] relaxation of the Rule." In enforcing the time bar, the judge
noted defendant's current counsel made his first appearance in defendant's cases
in January 2020, after replacing prior counsel, and did not file defendant's PTI
appeal until nineteen days after requesting discovery in February 2020.
Although he found defendant's PTI appeal was time barred, Judge
Lindeman nevertheless considered the merits of defendant's PTI appeal. The
judge found one of the reasons the UCPO provided for denying defendant's PTI
application was that defendant faced similar charges in Sussex County and Utah.
Further, the judge determined the UCPO concluded that "a forensic analysis of
[d]efendant's phone" revealed "a substantial amount of up-skirt photos and
videos of countless unsuspecting victims who may never be identified."
Moreover, the judge acknowledged the UCPO rejected defendant's
application, in part, because he went "to great lengths to target victims and hide
his crime . . . to make it seem like he was looking at something on a low shelf,"
and "he made his screen appear blank using an app to better hide his actions."
Judge Lindemann concluded the UCPO "incorrectly rel[ied] on . . . [Rule
program, shall file a motion . . . within ten days after receipt of the rejection" by the prosecutor. A-2038-21 6 3:28-1(d)3]," "because there [was] no presumption of incarceration in
[defendant's] case[s]." However, the judge found "[t]he State . . .
comprehensively analyzed all [seventeen] factors of N.J.S.A. 2C:43-12(e)"4 and
3 R. 3:28-1(d) provides, in part:
Persons Ineligible for Pretrial Intervention Without Prosecutor Consent . . . .
The following persons . . . shall be ineligible for [PTI] without prosecutor consent to consideration of the application:
1. Certain Crimes. A person who is charged with a crime, or crimes, for which there is a presumption of incarceration or a mandatory minimum period of parole ineligibility.
2. Prior Convictions. A person who has previously been convicted of an indictable offense in New Jersey, or its equivalent under the laws of another state or of the United States. 4 Those statutory factors are:
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
A-2038-21 7 (4) The desire of the complainant or victim to forego prosecution;
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
(7) The needs and interests of the victim and society;
(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;
(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;
(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;
(11) Consideration of whether or not prosecution would exacerbate the social
A-2038-21 8 it "specifically concluded that factors [one, two, three, four, five, six, seven,
problem that led to the applicant's criminal act;
(12) The history of the use of physical violence toward others;
(13) Any involvement of the applicant with organized crime;
(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;
(15) Whether or not the applicant's involvement with other people in the crime charged or in other crimes is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;
(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; 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).]
A-2038-21 9 nine, ten, eleven, fourteen] and [seventeen] weigh[ed] against [d]efendant's
admission" into PTI. Therefore, the judge found defendant failed to show the
UCPO's decision to reject defendant's PTI application "amounted to a patent and
gross abuse of discretion," or that there was a basis for the court to override the
UCPO's determination and admit defendant into PTI over the State's objection.
Judge Lindemann also stated he was "not convinced" "the cited goals of PTI
would clearly be subverted" by denying defendant's PTI appeal. Thus, he found
"no reason to remand [defendant's] application to the State for further
consideration."
In August 2020, defendant filed another motion in Union County, asking
the court to compel his entry into PTI or the VDP over the UCPO's objection.
Judge Candido Rodriguez, Jr. denied the motion on December 28, 2020. In a
twenty-three-page opinion accompanying his order, Judge Rodriguez concluded
defendant's motion was time barred under Rule 3:28-6(a). Much like Judge
Lindemann, Judge Rodriguez also addressed defendant's motion
notwithstanding the time bar. In doing so, Judge Rodriguez found he was
precluded from reconsidering Judge Lindemann's May 29, 2020 order,
explaining:
A-2038-21 10 While [PTI] appeals may be sought, the case of State v. Waters [5] controls and holds that "an appeal by the defendant shall be made on motion to the [p]residing [j]udge of the Criminal Division or to the judge to whom the case has been assigned." . . . The Court in Waters further notes that nothing in . . . N.J.S.A. 2C:43- 12 [to]-22, or the court rules provide[s] that a judge's decision of [a] PTI appeal can be appealed to or reversed by another Criminal Part [j]udge. . . . [D]enial of a PTI appeal is only challengeable to the Appellate Division after a judgment of conviction.
Judge Rodriguez also found "the State did not act in an arbitrary or
capricious manner in rejecting [d]efendant from [the] VDP." In reaching this
conclusion, the judge reasoned that pursuant to N.J.S.A. 2C:43-26(b)(1), "the
prosecutor shall have the sole discretion to determine if an eligible
servicemember qualifies for and is admitted into the [VDP]." (Emphasis added).
Moreover, Judge Rodriguez found the UCPO considered the appropriate
statutory factors under N.J.S.A. 2C:43-26(b)(1).6 For example, the judge
5 439 N.J. Super. 215, 223 (App. Div. 2015). 6 Those statutory factors are:
the nature of the eligible offense, the causative relationship between the person's diagnosed or apparent mental illness and the commission of the offense, the amenability of the servicemember to participation in the services of the program, the availability of case management and mental health services, the desires of
A-2038-21 11 observed that the UCPO assessed defendant's amenability to participate in the
services offered by the VDP and determined he "reoffended multiple times"
while receiving treatment. Additionally, the judge found the UCPO accounted
for the fact "the victims d[id] not want [d]efendant participating in [the] VDP"
and "that diversion w[ould] likely not promote [defendant's] recovery or be in
the interest of public safety." Additionally, the judge stated he agreed with the
UCPO that "[d]efendant need[ed] calculated and lengthy treatment and the
maximum two-year[] VDP . . . w[ould] not duly serve [him,] nor be in the best
interest of the public's safety, especially since [d]efendant acts compulsively."
In November 2021, defendant pled guilty in Union County to one count
each of fourth-degree invasion of privacy under Indictment Nos. 18-12-00755
and 19-10-00670. The next month, he was sentenced to two concurrent two-
year probationary terms for these offenses. The judge also directed that
defendant's concurrent sentences run concurrent to any sentence imposed in the
any victim, the person's history of prior convictions, and the probability that diversion will promote the servicemember's recovery, prevent future criminal behavior, and protect public safety.
[N.J.S.A. 2C:43-26(b)(1).]
A-2038-21 12 pending Sussex County matter.
In October 2019, defendant filed a motion in Sussex County to compel his
entry into PTI or the VDP over the SCPO's objections. During argument on
defendant's PTI and VDP appeal on January 31, 2020, the judge stated:
the State is the gatekeeper of PTI. . . . [O]ur jurisprudence . . . is that the[ State] ha[s] wide latitude to admit or deny . . . entrance into PTI. . . . [A] judge's role is not to override their judgment, but to intervene only when [the State's decision] is a patent and gross abuse of discretion. It is very hard to . . . find that [here,] that standard has been satisfied.
Additionally, the judge stated, "[i]t is pretty clear from the comprehensiveness
of the State's response . . . that [this] certainly was[ not] a case of [the SCPO]
giving short shrift to [defendant's application]." Still, at the conclusion of
argument, the judge directed the SCPO to reassess defendant's request for
admission into PTI or the VDP, and to particularly consider defendant's mental
health issues, military service, and the fact that until recently, he "did not
exhibit . . . criminal behavior."
The SCPO complied with this order, and on February 25, 2020, it filed a
supplemental statement with the court, outlining its reasons for again rejecting
defendant's request for admission into its diversionary programs. It reiterated
that while defendant's "PTI/VDP application was under review, [he] was again
A-2038-21 13 arrested in Union County for the same offense." In further support of its
position, the SCPO highlighted the fact that defendant's "first arrest in Utah in
no way curbed his criminal behavior," and defendant reoffended when "he was
already supervised by [p]re-[t]rial [s]ervices." It also noted defendant
previously admitted "[t]he best way to ensure he no longer repeat[ed the] pattern
of risk-seeking, compulsive behavior [was] to place him under structured
supervision where he [could] continue the progress of his comprehensive
treatment plan." Therefore, "given the pervasiveness of [defendant's] issues and
the extent of his criminal behavior," the SCPO contended defendant "require[d]
more supervision" than its diversionary programs could offer.
In April 2020, the Sussex County judge heard additional argument on
defendant's application. The judge referenced the SCPO's recent supplemental
submission, but also acknowledged that defendant, until recently, "ha[d] lived
the life of [a] law[-]abiding member of the community." Notwithstanding the
judge's concerns that defendant "suffered . . . psychological wounds in the
service of the governments that [were] now prosecuting him," the judge found
"it would be disingenuous [for the court] to suggest that the State ha[d] not
thoroughly thought through the nature of [defendant's] case[]."
Further, the judge stated he "could not find that [the SCPO] . . . failed to
A-2038-21 14 consider all the elements of [defendant's] case." Accordingly, the judge found
he would not "be justified in overriding [the SCPO's] judgment" or "substituting
[his] judgment for" the SCPO's because he did not find the SCPO abused its
discretion in a gross and "obvious[ly] patent way." On May 11, 2020, the judge
entered a conforming order, denying defendant's PTI and VDP appeals "for the
reasons stated on the record" on January 31, and April 14, 2020.
After defendant moved for reconsideration of the May 11 order, the judge
heard argument on the motion in June 2020, and denied it by order dated August
25, 2020. In a brief written opinion, the judge stated that defendant's
applications garnered his "sympathetic attention," and he was persuaded "the
extreme battle trauma [defendant] suffered in [military] service . . . interfered
with [defendant's] thinking and judgment and le[]d to th[is] charge[]." However,
the judge explained he was compelled to deny defendant's PTI and VDP appeals
because he could not find the SCPO's rejection of defendant's applications from
these diversionary programs constituted "a gross and patent abuse of [its] broad
discretion." Moreover, while the judge stated he "would be pleased if a higher
[c]ourt found a basis to overrule [his] judgment," he concluded that "to overrule
the State's denial . . . would be to substitute [his] judgment for theirs," "which
[was] prohibited."
A-2038-21 15 In February 2022, defendant pled guilty to one count of fourth-degree
invasion of privacy under the Sussex County indictment. On May 13, 2022, he
was sentenced to a four-year probationary term, concurrent to his Union County
sentences, and conditioned on him serving sixty days in jail on weekends until
the term was satisfied. However, the judge "[s]tay[ed] the jail sentence pending
a timely appeal being filed by . . . [d]efendant as it relate[d] to the denial of his
application to enter . . . PTI and [the VDP]."
On appeal, defendant raises the following arguments regarding his Union
County convictions and the underlying May 29, and December 28, 2020 orders
denying his PTI appeals:
POINT I
THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S MOTION TO COMPEL ENTRY INTO [PTI] OVER THE PROSECUTOR'S REJECTION WAS TIME-BARRED UNDER RULE 3:28-6(a).
POINT II
THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO [PTI] WAS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION WHICH MUST BE CORRECTED BY THIS COURT.
A-2038-21 16 Regarding his Sussex County conviction and the underlying May 11, and
August 25, 2020 orders denying his PTI and VDP appeals, defendant contends:
THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO [PTI] WAS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION WHICH MUST BE CORRECTED BY THIS COURT.
ALTERNATIVELY, THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO THE [VDP] WAS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION.
These arguments are unavailing.
"PTI is a 'diversionary program through which certain offenders are able
to avoid criminal prosecution by receiving early rehabilitative services expected
to deter future criminal behavior.'" State v. Johnson, 238 N.J. 119, 127 (2019)
(quoting State v. Roseman, 221 N.J. 611, 621 (2015)). The "primary goal" of
PTI is the "rehabilitation of a person accused of a criminal offense ." State v.
Bell, 217 N.J. 336, 346 (2014).
Because a PTI decision is "a quintessentially prosecutorial function,"
State v. Wallace, 146 N.J. 576, 582 (1996), our review of a prosecutor's denial
A-2038-21 17 of a PTI application is "severely limited" and "serves to check only the 'most
egregious examples of injustice and unfairness,'" State v. Negran, 178 N.J. 73,
82 (2003) (quoting State v. Leonardis (Leonardis II), 73 N.J. 360, 384 (1977)).
Accordingly, a reviewing court may overturn a prosecutor's rejection of a PTI
application only when a defendant "'clearly and convincingly establish[es]' that
the decision rejecting his or her application was 'a patent and gross abuse of
discretion.'" State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting
State v. Watkins, 193 N.J. 507, 520 (2008)). A patent and gross abuse of
discretion occurs when "the [PTI] denial[:] '(a) was not premised upon a
consideration of all relevant factors, (b) was based upon a consideration of
irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.'"
Ibid. (quoting State v. Bender, 80 N.J. 84, 93 (1979)).
"[F]or such an abuse of discretion to rise to the level of 'patent and gross,'
it must further be shown that the prosecutorial error complained of will clearly
subvert the goals underlying [PTI]." Roseman, 221 N.J. at 625 (quoting Bender,
80 N.J. at 93). "Where a defendant can make that showing, a [reviewing] court
may admit a defendant, by order, into PTI over the prosecutor's objection." Ibid.
(citing State v. Dalglish, 86 N.J. 503, 513 (1981)).
A-2038-21 18 "When a reviewing court determines that the 'prosecutor's decision was
arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and
gross abuse of discretion,' the reviewing court may remand to the prosecutor for
further consideration." State v. K.S., 220 N.J. 190, 200 (2015) (quoting
Dalglish, 86 N.J. at 509). "A remand to the prosecutor affords an opportunity
to apply the standards set forth by the court 'without supplanting the prosecutor's
primacy in determining whether [PTI] is appropriate in individual cases.'" Ibid.
(quoting Dalglish, 86 N.J. at 514).
A defendant's admission into PTI "is uniformly reliant upon the
recommendation of the criminal division manager, the consent of the prosecutor,
and the approval of the judge designated to act on all matters pertaining to [PTI]
in the vicinage." Id. at 197. When a prosecutor is determining whether a
defendant should be diverted into PTI, the prosecutor must consider the non-
exhaustive list of seventeen statutory factors set forth in N.J.S.A. 2C:43-12(e),
including "[t]he desire of the complainant or victim to forego prosecution,"
N.J.S.A. 2C:43-12(e)(4), and "[t]he needs and interests of the victim and
society," N.J.S.A. 2C:43-12(e)(7). See also Rule 3:28-4. Thus, a prosecutor
"must make an individualized assessment of the defendant, taking into account
all relevant factors." K.S., 220 N.J. at 202. "Because mental health issues
A-2038-21 19 impact that assessment, the prosecutor is required to consider a defendant's
mental illness." Ibid. (citing State v. Hoffman, 399 N.J. Super. 207, 214-15
(App. Div. 2008)).
Governed by these principles, we are persuaded there is no basis to reverse
the challenged orders denying defendant's PTI appeals from Union or Sussex
County. Regarding defendant's appeal from the denial of his entry into Sussex
County's VDP, we add the following brief comments.
"[A]fter the filing of a criminal complaint, but prior to the disposition of
such complaint, an eligible servicemember . . . may make an application to the
prosecutor to participate in the [VDP]. The prosecutor may approve or
conditionally approve an eligible servicemember's admission into the [VDP] ."
N.J.S.A. 2C:43-26(a). Except under limited circumstances not relevant to this
appeal,
the prosecutor shall have the sole discretion to determine if an eligible servicemember qualifies for and is admitted to the [VDP7] . . . after consideration of [1] the nature of the eligible offense, [2] the causative
7 Administrative Directive #05-18 also states "[t]he law provides prosecutors with the sole discretion to determine if an eligible service[]member qualifies for and is admitted to the [VDP,] . . . rather than just providing the court with a recommendation for admission like other diversionary programs, such as [PTI] or the Conditional Dismissal Program." Admin. Off. of the Cts., Admin. Directive #05-18, Veterans Diversion Program (N.J.S.A. 2C:43-23 to -31), at 1 (June 4, 2018). A-2038-21 20 relationship between the person's diagnosed or apparent mental illness and the commission of the offense, [3] the amenability of the servicemember to participation in the services of the program, [4] the availability of case management and mental health services, [5] the desires of any victim, [6] the person's history of prior convictions, and [7] the probability that diversion will promote the servicemember's recovery, prevent future criminal behavior, and protect public safety.
[N.J.S.A. 2C:43-26(b)(1) (emphasis added).]
Based on the fact N.J.S.A. 2C:43-26(b)(1) affords the State "sole
discretion" to admit an eligible servicemember into the VDP, the State posits
that defendant has no right to appeal from the denial of his application into the
VDP. Defendant disagrees, urging us to reverse the May 11 and August 25,
2020 orders upholding the SCPO's denial of his application to enter the VDP,
and contending the SCPO's rejection of his application was an arbitrary, patent
and gross abuse of the State's discretion.
Defendant's argument fails. As the assistant prosecutor observed during
the June 2020 hearing on defendant's reconsideration motion—and defendant
did not dispute—the process for determining eligibility for a defendant's entry
into the VDP "is similar to PTI" because the statutory VDP factors the State
must consider "are . . . almost a mirror of the PTI factors." Moreover, the
assistant prosecutor recited the statutory VDP factors and confirmed she
A-2038-21 21 considered them. For example, she stated: (1) the SCPO did not "dispute[] . . .
there [wa]s a relationship between . . . defendant's mental health[] and what . . .
occurred not only [in Sussex County,] but also in Union County and in Utah";
(2) the "victim . . . made clear" she objected to defendant's entry into the VDP;
and (3) the SCPO weighed the need to "protect[] public safety from . . .
defendant's actions going forward."
Additionally, the assistant prosecutor represented during argument that
SCPO's VDP provided less supervision than PTI, and the State had already
concluded "the level and supervision of PTI . . . [wa]s not enough" for defendant.
She explained the VDP was "not meant for a case where somebody [like
defendant] has really deep mental health issues which . . . harmed many people,
specifically women in this case."
Given these facts and the reasons outlined in the Sussex County judge's
oral and written opinions, we perceive no basis to disturb his determination that
the SCPO properly weighed and considered the appropriate statutory factors
under N.J.S.A. 2C:43-26(b)(1), and that its decision to reject defendant's VDP
application did not constitute a patent and gross abuse of its discretion. Thus,
we do not reach the State's informal claim that its denial of defendant's VDP
application is not subject to review. That said, we remind the parties that
A-2038-21 22 "judicial review must always be available to 'check . . . the most egregious
examples of injustice and unfairness.'" State v. Maurer, 438 N.J. Super. 402,
417 (App. Div. 2014) (quoting Leonardis II, 73 N.J. at 384).
In sum, we affirm defendant's judgments of conviction and lift the stay of
the sixty-day jail sentence imposed under the May 13, 2022 Sussex County
judgment of conviction. We also affirm the challenged orders regarding
defendant's PTI and VDP appeals for the reasons set forth in the judges' written
and oral opinions.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we are persuaded they lack sufficient merit to warrant
discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2038-21 23