State of New Jersey v. William W. Shallcross

• Court: New Jersey Superior Court Appellate Division
• Decided: February 3, 2026
• Docket: A-3333-24
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3333-24

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

WILLIAM W. SHALLCROSS,

Defendant-Respondent. ___________________________

Submitted January 6, 2026 – Decided February 3, 2026

Before Judges Sumners and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 25-01- 0011.

Jeffrey H. Sutherland, Cape May County Prosecutor, attorney for appellant (James E. Moore, Assistant Prosecutor, of counsel and on the brief).

Zeller & Wieliczko, LLP, attorneys for respondent (Dean R. Wittman, on the brief).

PER CURIAM The State of New Jersey appeals the trial court's order reversing the Cape

May County Prosecutor's Office's denial of defendant William W. Shallcross'

admission into the Pretrial Intervention Program (PTI). The State denied the

application because defendant rejected the condition that his admission required

forfeiting public employment. We affirm the court's order substantially for the

reasons set forth in its memorandum of decision that the State's condition that

defendant forfeit public employment to gain admission into PTI was a gross

abuse of discretion and defendant should be admitted into PTI admission.

Defendant, a custodian with the Ocean City School District (School

District), was indicted for third-degree theft of movable property, N.J.S.A.

2C:20-3(a), and third-degree theft by deception, N.J.S.A. 2C:20-4. The

indictment included similar charges against two other School District

custodians. The charges arose from their falsification of time sheets claiming

overtime hours they did not work. In defendant's case, he received over $800

for hours he did not work.

Defendant applied for PTI, citing the following factual background. He

was fifty-one years old and married with three children. He was employed by

the School District for thirty-two years, including over ten years as a custodian,

before being terminated for submitting false time sheets. Defendant had no prior

A-3333-24 2 arrests, indictments, criminal convictions, or any offenses for disorderly

persons, driving under the influence, or domestic violence. He is a certified

Emergency Medical Technician (EMT), employed by Egg Harbor Township for

the nine months preceding his application. Defendant admitted altering his time

sheets to reflect hours he did not actually work. He claimed this was consistent

with the School District's practice as evidenced by his labor union's collective

bargaining agreement with the School District stating:

Any employee called to return to work at any time other than his regular scheduled shift, shall be paid a minimum of two (2) hours overtime calculated at a rate of time and one half, except between the hours of 12 a.m. to 3 a.m. in which case a minimum of four (4) hours of overtime shall be at the rate of time and one half.

Defendant maintained that his supervisor initially approved his time sheets but

retracted authorization.

The Cape May County Probation Department determined defendant was

an "excellent candidate for enrollment into PTI" based upon his background,

"the nature of the offense, and [his] cooperative demeanor throughout the PTI

process." It recommended that defendant be enrolled in PTI for six months, pay

fines and $809.46 in restitution, and comply with standard PTI conditions. The

A-3333-24 3 State agreed to defendant's admission into PTI but required permanent forfeiture

of public employment, knowing that Egg Harbor Township employed him.

Defendant, believing he could not support his family without his EMT

position, rejected the public employment forfeiture condition. The State

remained adamant that defendant permanently forfeit all public employment.

The State's two-page PTI denial letter asserted that, after considering defendant's

PTI application, the offenses, and the probation department's recommendation,

public employment forfeiture was necessary for admission. It concluded:

The Prosecutor's Office does not take lightly the collateral consequences of forfeiture. However, where a defendant has violated the public's trust, and refuses to agree to a consequence that is both proportionate and legally supported, the rehabilitative goals of PTI cannot be achieved. The public has a right to expect that individuals who commit fraud against public schools will not continue to serve in those very institutions.

Consequently, defendant moved before the trial court to compel entry into

PTI. After considering the parties' written submissions and oral argument, the

court issued an order and ten-page memorandum of decision admitting

defendant into PTI without him having to forfeit public employment. The court

reasoned that the State erred by relying on an inapplicable public-trust

presumption in requiring defendant to forfeit public employment to gain PTI

admission. The court further found that in analyzing the State's denial letter, the

A-3333-24 4 State essentially considered only two of the seventeen factors required under

N.J.S.A. 2C:43-12(e) to determine a defendant's admission into PTI. According

to the court, the State's limited consideration of factor one, the "nature of the

offense" and factor two, the "facts of the case," "[gave] a disproportionate

amount of weight to [those] factors . . . , clearly subvert[ing] the underlying

goals of PTI and constitut[ing] a clear error in legal judgment." Thus, the "court

[found] that . . . defendant has proven, by clear and convincing evidence, that

the State's decision was a patent and gross abuse of discretion." 1 The State

appealed.

To resolve the State's challenge to the court's order, we look to the

following principles. "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. Gomes, 253 N.J.

6, 16 (2023) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). "[T]he primary

purpose of PTI has been 'to assist in the rehabilitation of worthy defendants, and,

in the process, to spare them the rigors of the criminal justice system.'" Id. at

17 (quoting State v. Watkins, 193 N.J. 507, 513 (2008)). Admission of an

1 The trial court's decision was stayed for fifteen days to allow the State to file an appeal to our court. A-3333-24 5 applicant into PTI shall be measured according to the applicant's amenability to

correction, responsiveness to rehabilitation, and the nature of the offense.

N.J.S.A. 2C:43-12(b)(1). As set forth in N.J.S.A. 2C:43-12 to -22 and Rule

3:28, admission into PTI requires a positive recommendation from the probation

department and the consent of the prosecutor. See Nwobu, 139 N.J. at 246.

The State "may consider a wide array of factors when determining whether

to recommend someone for PTI," including "'[t]he nature of the offense,' the

motivations of the defendant, the desires of the victim or complainant with

respect to prosecution, the social harm perpetrated by the defendant, and '[t]he

extent to which the applicant's crime constitutes part of a continuing pattern of

anti-social behavior.'" Gomes, 253 N.J. at 17 (alterations in original) (quoting

N.J.S.A. 2C:43- 12(e)). The prosecutor's assessment is to be guided by

seventeen factors enumerated in N.J.S.A. 2C:43-12(e)(1)-(17).

Admission "into PTI has been treated as a fundamental prosecutorial

function." Id. at 18. Accordingly, courts afford prosecutors "broad discretion"

in determining whether a defendant should be admitted into PTI, "[f]irst,

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. Chen, 465 N.J. Super. 274, 284 (App.

A-3333-24 6 Div. 2020) (first quoting State v. K.S., 220 N.J. 190, 199 (2015); and then

quoting Nwobu, 139 N.J. at 246). "Judicial review of a prosecutor's decision

about PTI admission is 'available to check only the most egregious examples of

injustice and unfairness.'" Gomes, 253 N.J. at 18 (quoting State v. Leonardis,

73 N.J. 360, 384 (1977)). "A court reviewing a prosecutor's decision to deny

PTI may overturn that decision only if the defendant 'clearly and convincingly'

establishes the decision was a 'patent and gross abuse of discretion.'" State v.

Johnson, 238 N.J. 119, 128-29 (2019) (quoting State v. Wallace, 146 N.J. 576,

583 (1996)). "A patent and gross abuse of discretion is defined as a decision

that 'has gone so wide of the mark sought to be accomplished by PTI that

fundamental fairness and justice require judicial intervention.'" Watkins, 193

N.J. at 520 (quoting Wallace, 146 N.J. at 682-83).

Ordinarily, an abuse of discretion will be manifest if 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 . . . . 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.

[State v. Roseman, 221 N.J. 611, 625 (2015) (omission in original) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

A-3333-24 7 In State v. Mickens, we succinctly described the task at hand:

[T]he appellate court must distinguish between prosecutorial abuse consisting of the failure to consider all relevant factors specific to the individual candidate and prosecutorial abuse represented by a judgment reached after a full consideration. In the first instance, it is the obligation of the reviewing court to remand to the prosecutor for reconsideration. In the second instance, the reviewing court is free to conclude that the abuse "arises from a clear error of judgment," and, if it does so, it "may order that a defendant be admitted into the program."

[236 N.J. Super. 272, 277-78 (App. Div. 1989) (quoting State v. DeMarco, 107 N.J. 562, 567 (1987)).]

Because "[i]ssues concerning the propriety of the prosecutor's

consideration of a particular [PTI] factor are akin to 'questions of law,'" we

review those legal determinations de novo. State v. E.R., 471 N.J. Super. 234,

245 (App. Div. 2022) (alterations in original) (quoting State v. Denman, 449

N.J. Super. 369, 376 (App. Div. 2017)).

Based on these principles, we conclude the trial court was correct in

allowing defendant's admission into PTI because defendant made a clear and

convincing showing that the State's decision to condition his admission by

forfeiting public employment was a gross abuse of discretion. We are

unpersuaded by the State's argument that the trial court incorrectly found "that

the State failed to carefully consider 'any individualized features that bear on

A-3333-24 8 [[d]efendant's] amenability to rehabilitation.'" The State's denial letter fails to

address the seventeen statutory and court rule factors for admitting a defendant

into PTI. The State merely maintained that defendant must forfeit all future

public employment because he committed a crime of dishonesty by falsifying

his overtime time sheets in the course of his public employment. This limited

focus underscores the punitive categorical nature of the State's requirement that

defendant forfeit public employment.

The State's contention before the court that "the co-defendants have both

agreed to a forfeiture of future public employment, . . . [which] defendant

believes does not apply to him," reflects its failure to consider defendant's

application based on his individual situation. The State apparently argues that

because the co-defendants accepted the public employment forfeiture condition

to be admitted into PTI, defendant should follow suit. On the contrary,

defendant's admission into PTI must reflect his amenability to rehabilitation.

See N.J.S.A. 2C:43-12(b)(1).

The State also contends that public employment forfeiture is necessary

"given that all record of [d]efendant's criminality will be subject to expungement

upon successful completion of PTI," which "creates a sort of legal fiction –– it

does not negate the offensive conduct that led to PTI, or remove the

A-3333-24 9 [d]efendant's actual acts from history." This assertion is not supported by law

and indeed undermines the policies that support expungement. Further, the

prosecutor’s categorical prerequisite ignores the significant mitigating

circumstances in this case. No PTI admission criteria considers expungement

of the charged offenses. That is the salutary benefit and philosophy that

undergirds PTI; give a person a second chance without the cloud of a criminal

conviction. And here, defendant's termination from the Ocean City School

District after thirty-two years –– which formed the basis of his criminal charges

–– remains a public record of his misconduct that cannot be erased and will

follow him in all future employment aspirations. The State misapplication of

the PTI statute and court rule constitutes legal error, demonstrating a gross abuse

of discretion by the State in denying defendant's PTI admission.

We also find unconvincing the State's contention that requiring

defendant's forfeiture of public employment "ensures the public interest is

safeguarded during the period of PTI, regardless of the defendant's eventual

performance in the program." It is unclear how defendant's forfeiture of public

employment would safeguard the public interest because the State fails to

articulate any facts or cogent reasons to support its contention. Again, the State's

A-3333-24 10 unsound reasoning indicates a gross abuse of discretion in requiring defendant

to forfeit his employment with Egg Harbor Township for PTI admission.

In sum, reversing the State's denial of defendant's PTI admission because

he refused to forfeit all future public employment is not a substitute of our

judgment for the State's. The State made no showing how the public forfeiture

condition furthers the goals of PTI admission. The record evinces that the

prosector did not have a legally valid reason to impose this condition. The

prosector failed to consider all PTI factors in imposing the condition; it made no

showing that the condition impacted defendant's amenability to correction or

responsiveness to rehabilitation. We reiterate and emphasize that defendant has

no criminal history or arrests, worked thirty-two years in the Ocean City School

District without prior violations of the public's trust, and supports his family by

serving the public as an EMT. In these circumstances, the State's refusal to

admit defendant into PTI without the condition of forfeiting his public

employment was clearly and convincingly a patent and gross abuse of discretion.

Affirmed.

A-3333-24 11