NOT FOR PUBLICATION WITHOUT THE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-3653-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCES H. LESZCZYNSKI,

     Defendant-Appellant.
_____________________________

                    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-
                    08-0606.

                    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).

PER CURIAM
      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.

                                           I.

      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


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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
            OF DISCRETION.

                  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
                  INDIVIDUALIZED APPLICATION.

                  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.

                                     II.

      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, 

238 N.J. 119

(2019).

"PTI is a 'diversionary program through which certain offenders are able to

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                                      3
avoid criminal prosecution by receiving early rehabilitative services expected

to deter future criminal behavior.'"

Id. at 127

(quoting State v. Roseman, 

221 N.J. 611

, 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
               discretion."

               [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

gross.

               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.]


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                                         4
      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

enumerated factors:

            (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
            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;


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                                         5
(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
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 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).]

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                          6
      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, 

146 N.J. 576

, 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, 221 N.J. at 627

.

                                        III.

      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



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                                        7
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, 

158 N.J. 28

, 39 (1999) ("The nature of the PTI

program suggests that categorical rejections must be disfavored."), superseded


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                                       8
by statute, N.J.S.A. 2C:35-7(b), as recognized in 

Johnson, 238 N.J. at 123

.

Rather, the prosecutor concluded ultimately that the applicable offense-

oriented PTI factors outweighed the offender-oriented factors that militated in

her favor.

      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, 

119 N.J. 621

, 627 (1990) (holding when the

death of the victim is an element of the crime, it cannot be considered as an

aggravating factor for sentencing purposes); see also State v. Vasquez, 

374 N.J. Super. 252

, 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

1
  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.
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                                      9
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, 238 N.J. at 123

. The Legislature, in other


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                                    10
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.

Negran, 

178 N.J. 73

, 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,

175 N.J. 215

, 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

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                                     11
            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.

            [

447 N.J. Super. 301

, 316 (App. Div. 2016) (citing
            

Roseman, 221 N.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).


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Affirmed.




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