NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-3653-18T1
STATE OF NEW JERSEY,
FRANCES H. LESZCZYNSKI,
Submitted June 1, 2020 – Decided October 5, 2020
Before Judges Messano and Susswein.
On appeal before the Superior Court of New Jersey,
Law Division, Cape May County, Indictment No. 18-
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele E. Friedman, Assistant Deputy
Public Defender, of counsel and on the brief).
Jeffrey H. Sutherland, Prosecutor, Cape May County,
attorney for respondent (Gretchen A. Pickering,
Assistant Prosecutor, of counsel and on the brief).
Defendant, Frances H. Leszcynski, appeals from a trial court order
denying her admission to Pre-Trial Intervention (PTI). Defendant was charged
with the fourth-degree crime of operating a vehicle during a period of license
suspension for a second driving under the influence (DUI) conviction, N.J.S.A.
2C:40-26(b). The State objected to defendant's application to PTI, setting
forth its reasons in a nine-page letter.
After hearing oral argument, the trial court denied defendant's motion to
compel admission. The court found that the prosecutor had reviewed all
relevant and appropriate factors and that the decision to object to defendant's
admission was not a patent and gross abuse of prosecutorial discretion.
Defendant thereafter pleaded guilty, reserving the right to appeal denial
of PTI. She was sentenced to 180 days in county jail and ordered to pay all
applicable fines and penalties. We have carefully reviewed the record in view
of the governing legal principles and affirm the trial court's order denying
admission to PTI.
The facts pertaining to the offense are not disputed and need only be
briefly summarized. On April 15, 2018, defendant was lawfully stopped by a
police officer who discovered her license was suspended for a second DUI
conviction. Defendant had been convicted of DUI on January 10, 2018, and
August 2, 2016. Defendant also has been convicted of refusing to submit to
breath testing, N.J.S.A. 39:4-50.4a, on June 6, 2013.
Defendant raises the following contentions for our consideration:
THE PROSECUTOR'S REJECTION OF MS.
LESZCZYNSKI'S PTI APPLICATION
CONSTITUTES A PATENT AND GROSS ABUSE
A. THE PROSECUTOR'S REFUSAL TO
ADMIT MS. LESZCZYNSKI INTO PTI
RESULTED FROM A
MISAPPLICATION OF THE PTI
FACTORS, WHICH STEMMED FROM
AN OVEREMPHASIS OF THE
OFFENSE, RATHER THAN HER
B. THE PROSECUTOR'S DECISION
AMOUNTS TO AN IMPERMISSIBLE
PER SE RULE EXCLUDING ALL
INDIVIDUALS CHARGED WITH
VIOLATING N.J.S.A. 2C:40-26 WITH
ELIGIBILITY FOR PTI.
We begin our analysis by acknowledging the legal principles that govern
judicial review of a prosecutor's PTI decision. Those principles were recently
summarized by our Supreme Court in State v. Johnson,
"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.'"
Id. at 127
(quoting State v. Roseman,
, 621 (2015)). As the Court explained:
"PTI is essentially an extension of the charging
decision, therefore the decision to grant or deny PTI is
a 'quintessentially prosecutorial function.'" "As a
result, the prosecutor's decision to accept or reject a
defendant's PTI application is entitled to a great deal
of deference." 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
[Id. at 128–29 (citations omitted).]
The contours of the abuse of discretion standard are well-defined, as is
the heightened requirement that such an abuse of discretion be patent and
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.
[Id. at 129.]
The prosecutor's exercise of discretion is guided by criteria set forth by
the Legislature. If a prosecutor elects to deny a PTI application, the prosecutor
must provide a statement of reasons explaining the basis for that decision.
N.J.S.A. 2C:43-12(c). The statement of reasons must consider the following
(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
(4) The desire of the complainant or victim to forego
(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
(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
(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 problem that led to the
applicant's criminal act;
(12) The history of the use of physical violence
(13) Any involvement of the applicant with organized
(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 crime 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)(1) to (17).]
The prosecutor's statement of reasons, moreover, "must demonstrate that
the prosecutor has carefully considered the facts in light of the relevant law."
State v. Wallace,
, 584 (1996). It is not sufficient for the
prosecutor merely to "parrot the statutory language, and present bare
assertions regarding [the defendant's] amenability to PTI."
Roseman,221N.J. at 627
We next apply these legal principles to the case before us. We begin by
making a few general observations. There is no mathematical formula that
guides the exercise of prosecutorial discretion. The weighing of the PTI
factors militating for and against PTI is a qualitative process incapable of
empirical quantification. The decision is not made simply by comparing the
number of factors favoring admission against the number of factors militating
against admission. Rather, the prosecutor must ascribe weight to the relevant
factors and balance them accordingly.
We agree with the trial court that, in this instance, the prosecutor
considered all the statutorily enumerated factors. The prosecutor's statement
of reasons, moreover, does not merely parrot them. Rather, it reflects a
thoughtful balancing of the circumstances pertaining to the offense and
offender that militate for and against diversion of prosecution.
Defendant argues the prosecutor's objection "stems from an
overemphasis of the charged N.J.S.A. 2C:40-26 offense and its underlying
elements" rather than on defendant's individual suitability for PTI. We
disagree. The prosecutor indeed placed significant emphasis on the need for
deterrence and the risk to public safety. That assessment was made in view of
defendant's troubling record of driving offenses and her decision to continue to
drive in the face of the court-ordered suspension of her driving privileges.
Importantly, although the State placed significant weight on the offense -
oriented PTI factors, the prosecutor did not disregard defendant's personal
history, which includes her driving record as well as mitigating circumstances.
Defendant contends the State's emphasis on the nature of the offense is
"an implicit application of the per se bar to PTI admission for all individuals
charged with violating N.J.S.A. 2C:40-26." We reject defendant's
characterization of the prosecutor's reasoning. The record clearly shows the
prosecutor did not categorically deny PTI based on the seriousness of the
crime. See State v. Caliguiri,
, 39 (1999) ("The nature of the PTI
program suggests that categorical rejections must be disfavored."), superseded
by statute, N.J.S.A. 2C:35-7(b), as recognized in
Johnson,238N.J. at 123
Rather, the prosecutor concluded ultimately that the applicable offense-
oriented PTI factors outweighed the offender-oriented factors that militated in
We also reject defendant's contention her prior DUI convictions "should
have been of no moment in the prosecutor's PTI analysis." 1 Defendant argues
that because two prior DUI convictions are required to prove a violation of
N.J.S.A. 2C:40-26(b), the prosecutor's consideration of her prior DUI
convictions "was akin to impermissible double-counting in the context of
sentencing." See State v. Pineda,
, 267 (App. Div. 2005) (holding it was improper for sentencing
court to consider defendant's prior conviction in setting the term within the
extended term range when that conviction was the basis for imposing an
extended term). Defendant cites no authority, however, for the proposition
that a prosecutor may not consider a material element of the charged crime
when evaluating the statutory PTI factors. There is no precedent, in other
We note that defendant had prior motor vehicle convictions in addition to the
two DUI convictions required under N.J.S.A. 2C:40-26.
words, for extending the double counting principle to PTI decisions as
defendant now proposes.
We note the double counting prohibition arises in the context of
sentencing because the Legislature has already accounted for the material
elements of a crime in defining the offense and designating its gradatio n. The
degree of the crime, in turn, dictates the sentencing outcome by prescribing,
for example, the range of authorized sentences and whether there is a
presumption of imprisonment or of non-incarceration. See N.J.S.A. 2C:43-
6(a) (specifying the range of ordinary terms based on degree of crime);
N.J.S.A. 2C:44-1(d) (establishing a presumption of imprisonment for first and
second-degree convictions); N.J.S.A. 2C:44-1(e) (establishing a presumption
of non-incarceration for third and fourth-degree convictions where defendant
has not previously been convicted). Thus, a court sentencing a defendant for
homicide may not consider the victim's death as an aggravating circumstance
because that level of harm to the victim has already been accounted for in
classifying the offense conduct as a homicide.
In the context of PTI, in contrast, the gradation of the charged crime
does not dictate the PTI decision, as shown by the general prohibition against
"categorical" denials. See
Johnson,238N.J. at 123
. The Legislature, in other
words, has not already accounted for the material elements of the offense with
respect to the prosecutor's case-by-case determination whether a defendant is a
suitable candidate for diversion. Instead, the seriousness of the crime
generally is accounted for in the PTI decision making process through the
prosecutor's consideration of the first PTI factor relating to the nature of the
offense. N.J.S.A. 2C:43-12(e)(1).
In any event, we need not decide the novel issue whether the double
counting prohibition that applies to a judge's sentencing decision might in
certain circumstances extend to a prosecutor's assessment of PTI factors. We
are convinced in the circumstances of this case the prosecutor was permitted to
consider all of defendant's prior Title 39 convictions to show there was a
pattern of antisocial behavior under N.J.S.A. 2C:43-12(e)(8). See State v.
, 84 (2003) (permitting prosecutors to consider "not only
serious criminal acts, but less serious conduct, including disorderly person
offenses, offenses found under the juvenile code, and acts that technically do
not rise to the level of adult criminal conduct," in assessing whether a PTI
applicant exhibits a "pattern of anti-social behavior" (quoting State v. Brooks,
, 227 (2002))). In State v. Rizzitello, we held:
The PTI judge's decision to override the prosecutor's
rejection of defendant's PTI application failed to give
due deference to these public policy considerations.
The judge also failed to defer to the prosecutor's
consideration of defendant's history of Title 39
violations; these violations reveal defendant's multiple
instances of defiance of court-ordered suspensions of
his driving privileges. In light of these factors, the
prosecutor's rejection did not constitute a patent and
gross abuse of discretion.
, 316 (App. Div. 2016) (citing
Roseman,221N.J. at 627
In sum, we conclude the prosecutor in this case properly considered
defendant's complete driving record, including her DUI convictions, in
determining her suitability for PTI. Defendant's driving record reflects not
only a pattern, but an unbroken one. We note defendant was apprehended
while operating a motor vehicle only four months after her license was
suspended for her latest DUI conviction. Such defiance of the court's
sentencing authority support's the prosecutor's determination she is not a
suitable candidate for diversion.
In these circumstances, the weight the prosecutor ascribed to the
interests of public safety and deterrence does not constitute an abuse of
discretion, much less a patent and gross abuse. To the extent we have not
addressed them, any remaining arguments raised by defendant lack sufficient
merit to warrant discussion in this opinion. R. 2:11-3(e)(2).