STATE OF NEW JERSEY VS. DONOVAN L. HAYDENÂ (16-03-0353, HUDSON COUNTY AND STATEWIDE) ( 2017 )


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          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-5084-15T3
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Appellant,
    
    v.
    
    DONOVAN L. HAYDEN,
    
            Defendant-Respondent.
    
    ________________________________________________________________
    
                  Submitted February 7, 2017 – Decided August 1, 2017
    
                  Before Judges Espinosa, Suter and Guadagno.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Hudson County, Indictment No.
                  16-03-0353.
    
                  Esther Suarez, Hudson County Prosecutor,
                  attorney for appellant (Stephen J. Natoli,
                  Assistant Prosecutor, on the brief).
    
                  Joseph E. Krakora, Public Defender, attorney
                  for respondent (Rochelle Watson, Assistant
                  Deputy Public Defender, of counsel and on the
                  brief).
    
    PER CURIAM
    
            This is the State's appeal from a decision by the trial court
    
    to admit defendant into the Pre-Trial Intervention (PTI) program
    over the Prosecutor's objection on the ground that the State had
    
    applied a per se rule to reject defendant's application.
    
          At his arraignment on a second-degree weapons offense charge,
    
    defendant's counsel stated defendant was applying for admission
    
    into the Pre-Trial Intervention program (PTI).                     The assistant
    
    prosecutor     countered,    "the     State   will    be   opposing     any   PTI
    
    application for [defendant.]"         After its review of defendant's PTI
    
    application,     the    Criminal      Division    recommended        defendant's
    
    admission into the Pre-Trial Intervention program (PTI), citing a
    
    number of factors personal to defendant and concluding he was "not
    
    a danger to society."       The prosecutor rejected this recommendation
    
    and   denied   defendant's      application      in   a    terse    letter    that
    
    essentially    relied    upon   the   presumption     of    ineligibility     for
    
    persons charged with second-degree offenses.
    
          We have reviewed the prosecutor's statement of reasons for
    
    rejecting defendant's application.            We conclude the prosecutor
    
    failed to make an individualized assessment of the defendant under
    
    the PTI Guidelines, established by R. 3:28, that took into account
    
    his "'amenability to correction' and potential 'responsiveness to
    
    rehabilitation,'"       State v. Roseman, 
    221 N.J. 611
    , 621-22 (2015)
    
    (quoting State v. Watkins, 
    193 N.J. 507
    , 520 (2008)); N.J.S.A.
    
    2C:43-12(b)(1), and to consider the statutory criteria required
    
    by N.J.S.A. 2C:43-12(e).
    
                                           2                                 A-5084-15T3
          For the reasons that follow, we reverse the trial court's
    
    decision to admit defendant into PTI and remand to the trial court
    
    to: provide additional reasons for its decision, remand to the
    
    prosecutor for further consideration or reverse its decision, in
    
    light of the principles we review in this opinion.
    
                                           I.
    
          Defendant was twenty-six years old at the time of his arrest
    
    on November 15, 2015.         He was stopped by Jersey City police
    
    officers for a motor vehicle offense, tailgating, N.J.S.A. 39:4-
    
    89.     When defendant opened the center console of his car to
    
    retrieve his credentials, one of the officers observed a handgun
    
    in the console. The gun, a loaded Taurus Model PT.22, a.22 caliber
    
    handgun, was seized.       Defendant was arrested and charged with
    
    second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-
    
    5(b).
    
          "Any defendant charged with crime is eligible for enrollment
    
    in a PTI program, but the nature of the offense is a factor to be
    
    considered   in   reviewing      the    application."   Guidelines      for
    
    Operation of Pretrial Intervention in New Jersey, Pressler &
    
    Verniero, Current N.J. Court Rules, Guideline 3(i) following R.
    
    3:28 at 1235 (2017).       However, depending upon the nature of the
    
    offense   charged,   the   PTI   Guidelines   establishes   a   rebuttable
    
    presumption that the application "should generally be rejected"
    
                                           3                           A-5084-15T3
    or "should ordinarily not be considered."               Ibid.   A "defendant's
    
    application should generally be rejected" if the charged offense
    
    was:
    
                (1) part of organized criminal activity; or
                (2) part of a continuing criminal business or
                enterprise; or (3) deliberately committed with
                violence or threat of violence against another
                person; or (4) a breach of the public trust
                where admission to a PTI program would
                deprecate the seriousness of defendant's
                crime.
    
                [Ibid.]
    
           Defendant was not charged with an offense that fell within
    
    these categories.      Because he was charged with a second-degree
    
    offense,    his   offense   was    subject   to    a    different   rebuttable
    
    presumption:      "A defendant charged with a first or second degree
    
    offense . . . should ordinarily not be considered for enrollment
    
    in a PTI program except on joint application by the defendant and
    
    the prosecutor."      Ibid.       Notwithstanding this presumption, the
    
    Guideline    establishes    the     procedure     for    review   of   the   PTI
    
    application:
    
                However, in such cases, the applicant shall
                have the opportunity to present to the
                criminal division manager, and through the
                criminal division manager to the prosecutor,
                any facts or materials demonstrating the
                applicant's amenability to the rehabilitative
                process,     showing    compelling    reasons
                justifying the applicant's admission and
                establishing    that  a    decision   against
    
    
                                           4                                A-5084-15T3
                 enrollment    would         be       arbitrary      and
                 unreasonable.
    
                 [Ibid.]
    
         The statute that governs PTI does not bar defendants charged
    
    with a second-degree offense from admission or codify a presumption
    
    against admission for such defendants.                N.J.S.A. 2C:43-12.        As
    
    amended by L. 2015, c. 98, which was effective August 10, 2015,
    
    prior to defendant's application, the only limitation applicable
    
    to defendant's admission to PTI was that he enter a plea of guilty.
    
    N.J.S.A. 2C:43-12(g)(3).        The statute provides further, "the plea
    
    shall   be   held   in   an   inactive       status   pending   termination     of
    
    supervisory treatment . . . .         Upon successful completion of the
    
    program of supervisory treatment the charges shall be dismissed."
    
    Ibid.
    
         At defendant's arraignment, his attorney stated he had made
    
    application and been interviewed for PTI. The prosecutor responded
    
    summarily, "the State will be opposing any PTI application for
    
    [defendant.]"
    
         Following a review of defendant's application, the Criminal
    
    Division recommended that defendant be enrolled in PTI.                       The
    
    recommendation      letter    cited   the      following   reasons     for   that
    
    conclusion:
    
    
    
    
                                             5                               A-5084-15T3
         This case represented defendant's "initial known contact with
    
    the criminal justice system."   He had no contact with the juvenile
    
    justice system.     There was no need to refer him for a substance
    
    abuse evaluation.     He was employed, lived with his father and
    
    sister in a "relatively quiet" neighborhood in Jersey City, and
    
    contributed approximately twenty-five to thirty percent of the
    
    rent each month.    Defendant admitted that purchasing and carrying
    
    the handgun "were both examples of very poor judgment," stating:
    
               I just felt unsafe, that's all. I felt unsafe
               and nervous at the time because of all the
               things that were going on in the area.
               Honestly I don’t even like guns or dealing
               with stuff like that, but I just felt unsafe.
               I actually don't want to live here anymore. I
               want to move to Pennsylvania with my
               girlfriend because I feel like you can't even
               go outside around here anymore.
    
         The   recommendation   acknowledged   the   seriousness   of   the
    
    offense charged but noted the circumstances that led to defendant's
    
    arrest "were not of a violent or assaultive nature." The officer's
    
    evaluation included the following:
    
               It is the belief of this Officer that the
               defendant is not a danger to society. Taking
               into consideration the defendant's lack of a
               criminal   history   in  addition   to   being
               gainfully employed and abstaining from the use
               of drugs, this Officer cannot readily identify
               any evidence to suggest Mr. Hayden is likely
               to reoffend.
    
                    . . . .
    
    
                                      6                            A-5084-15T3
                This Officer does not believe that Mr.
                Hayden's poor judgment merits a response from
                the Court that would result in a conviction
                on the defendant's otherwise non-existent
                criminal history, especially a conviction that
                carries the possibility of a custodial
                sentence.
    
                It is the belief of this Officer that the
                hardships Mr. Hayden will inevitably face as
                the result of having a criminal record
                containing a conviction for a second degree
                crime would outweigh any harm done to society
                by     abandoning    traditional     criminal
                prosecution in favor of the supervisory
                treatment that the defendant would receive
                through acceptance into the PTI program.
    
                [(Emphasis added).]
    
         After receiving this recommendation, the prosecutor's office
    
    was required to make an individualized assessment of the defendant
    
    under the PTI Guidelines, established by Rule 3:28, that took into
    
    account     his   "'amenability   to   correction'   and     potential
    
    'responsiveness to rehabilitation.'"    Roseman, supra, 221 N.J. at
    
    621-22 (quoting Watkins, supra, 193 N.J. at 520); N.J.S.A. 2C:43-
    
    12(b)(1).
    
         The prosecutor was also specifically required to consider the
    
    seventeen factors listed in N.J.S.A. 2C:43-12(e), State v. Lee,
    
    
    437 N.J. Super. 555
    , 562 (App. Div. 2014), which we list for ease
    
    of reference:
    
                      (1) The nature of the offense;
    
                      (2) The facts of the case;
    
                                      7                            A-5084-15T3
         (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;
    
         (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;
    
                          8                            A-5084-15T3
                     (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).]
    
         When   the   prosecutor   rejects   a   PTI   application,   N.J.S.A.
    
    2C:43-12(f)   requires   the   prosecutor    to    "precisely   state   his
    
    findings and conclusion which shall include the facts upon which
    
    the application is based and the reasons offered for the denial."
    
    See also State v. K.S., 
    220 N.J. 190
    , 198-99 (2014); State v.
    
    Nwobu, 
    139 N.J. 236
    , 248 (1995) (citing Pressler & Verniero, supra,
    
    Guideline 8, at 1240-41); State v. Rizzitello, 
    447 N.J. Super. 9
                                   A-5084-15T3
    301, 311 (App. Div. 2016); Pressler & Verniero, supra, Official
    
    Comment to Guideline 2 at 1234.
    
         The rejection letter relied upon by the State to justify its
    
    rejection of defendant's PTI application reads as follows:
    
                    The   defendant    is   charged   in   the
               Indictment with a second degree weapons
               offense which carries a mandatory term of
               imprisonment and is therefore presumptively
               ineligible for admission into the PTI Program,
               absent compelling reasons justifying his
               admission. Defendant's first offender status,
               standing   alone,   does   not   constitute   a
               "compelling    reason,"    and    nothing    in
               defendant's   character    or   background   is
               sufficiently "extraordinary" or "unusual" to
               overcome the presumption against admission.
               See State v. Nwobu, 
    139 N.J. 236
     (1995).
    
                    Moreover,      given     the     alarming
               proliferation    of    illegal,   unregistered
               weapons and the threat they pose to public
               safety, the nature of the offense is such that
               the public need for prosecution and deterrence
               outweighs the value of supervisory treatment.
    
         In    sharp   contrast   to     the   Criminal      Division    manager's
    
    recommendation, this letter cited no facts regarding defendant's
    
    personal    background   other      than   his   first    offender    status.
    
    Similarly, the letter relies heavily upon the "nature of the
    
    offense" but reveals no consideration of the circumstances of the
    
    offense.    Further, the letter associates the offense with "the
    
    alarming    proliferation     of"    firearms    although     there    is     no
    
    
    
    
                                         10                                A-5084-15T3
    allegation   that     defendant      was    engaged    in   the   trafficking    of
    
    firearms.
    
         Defendant appealed from the State's rejection.                 He argued the
    
    rejection letter sent to the Criminal Division failed to show the
    
    prosecutor   had      taken   all    of     defendant's     circumstances     into
    
    consideration.      He argued further that, when viewed together, the
    
    rejection letter and the prosecutor's statement at the arraignment
    
    that the State would oppose any application for PTI represented a
    
    "per se" rejection.      See State v. Baynes, 
    148 N.J. 434
    , 451 (1997)
    
    (reversing the prosecutors per se rejection of the defendants PTI
    
    application).
    
         In opposition to defendant's motion, the prosecutor confirmed
    
    that defendant's PTI rejection was based on the reasoning set
    
    forth in the rejection letter.             The prosecutor argued that because
    
    the statement made at arraignment did not constitute the State's
    
    rejection or play any role in the rejection decision, they did not
    
    contribute to any "per se" bar.                Finally, the prosecutor argued
    
    the reasoning for rejecting defendant's application – as set forth
    
    in the rejection letter – was "sound logically and legally."                    The
    
    thrust of the argument presented was that there was nothing
    
    extraordinary    or    unusual      to   overcome     the   presumption   against
    
    admission contained in Guideline 3(i).
    
    
    
                                              11                              A-5084-15T3
        After reviewing applicable legal principles, the trial judge
    
    found the rejection constituted a patent and gross abuse of
    
    discretion:
    
               And in this case, this is a second degree
               offense.    And it is whether or not the
               defendant has overcome the presumption against
               admission. Here, in the view of this Court,
               that   the   rejection  of   the   defendant's
               application for PTI has, is considered a
               patent and gross abuse of discretion where the
               prosecution has created a per se bar on his
               admission based on a statement at arraignment
               relating to the likelihood of defendant's
               rejection from PTI, based on the statement
               made by the State at arraignment, and then the
               subsequent rejection by the Prosecutor's
               Office. It appears from the record that the
               State knew it would reject defendant's
               application prior to even receiving it solely
               based on the nature of the offense rather than
               upon examination of defendant's background and
               characteristics.
    
                    Upon   reviewing   the   transcript   and
               listening to the tape, or the record of the
               arraignment, the State specifically noted the
               State will be opposing any PTI application for
               Mr. Hayden.     Based on this statement in
               combination with the rejection from the
               Prosecutor's Office, following a careful
               consideration, and acceptance into PTI by the
               Criminal Division Manager, it appears that the
               Prosecutor has per se barred defendant's
               admission into PTI.
    
          She then ordered that defendant be enrolled in the PTI
    
    program.
    
        In its appeal, the State argues:
    
    
    
                                    12                          A-5084-15T3
                     POINT I
    
                     THE COURT ERRED IN ADMITTING THE
                     RESPONDENT INTO PTI BASED ON THE
                     PROSECUTOR'S STATEMENTS MADE AT THE
                     ARRAIGNMENT.
    
                     POINT II
    
                     THE TRIAL COURT ERRED BY ADMITTING
                     RESPONDENT INTO PTI OVER THE STATE'S
                     OBJECTION AS RESPONDENT FAILED TO
                     DEMONSTRATE THAT THE PROSECUTOR'S
                     REJECTION AMOUNTED TO A PATENT AND
                     GROSS ABUSE OF DISCRETION.
    
                          A.   THE STATE CONSIDERED ALL
                     RELEVANT FACTORS IN ITS REJECTION OF
                     RESPONDENT'S PTI APPLICATION.
    
                                       II.
    
         The prosecutor's decision to accept or reject a defendant's
    
    PTI application is entitled to a great deal of deference. Roseman,
    
    supra, 221 N.J. at 624-25; State v. Leonardis, 
    73 N.J. 360
    , 381
    
    (1977).    We do not evaluate the case as if we "stood in the shoes
    
    of the prosecutor." State v. Wallace, 
    146 N.J. 576
    , 589-90 (1996).
    
    A prosecutor's decision to accept or reject a PTI application may
    
    be   overruled    only     when   the    circumstances    "'clearly       and
    
    convincingly establish that the prosecutor's refusal to sanction
    
    admission into the program was based on a patent and gross abuse
    
    of . . .   discretion.'"      Roseman,    supra,   221   N.J.   at    624-25
    
    (citation omitted); see Nwobu, supra, 139 N.J. at 254 ("The
    
    question is not whether we agree or disagree with the prosecutor's
    
                                       13                                A-5084-15T3
    decision, but whether the prosecutor's decision could not have
    
    been reasonably made upon weighing the relevant factors.").
    
         Although we rarely overturn a PTI rejection, the prosecutor's
    
    discretion is not unlimited.           State v. Negran, 
    178 N.J. 73
    , 82
    
    (2003).     In rendering the decision, the prosecutor must "make an
    
    individualized assessment of the defendant" and consider whether
    
    the defendant is amenable to rehabilitation.            Roseman, supra, 221
    
    N.J. at 621-22 (citing Watkins, supra, 193 N.J. at 520).                      The
    
    prosecutor     may   not   weigh      inappropriate    factors    or     ignore
    
    appropriate factors.       K.S., supra, 220 N.J. at 200.               Further,
    
    judicial review is not so limited that a denial which addresses
    
    all the statutory factors and the Guidelines escapes further
    
    scrutiny.    In Wallace, the Supreme Court instructed, "We are not
    
    to be understood as endorsing unbridled prosecutorial discretion
    
    simply because all relevant factors and no inappropriate factors
    
    are in the mix."     Wallace, supra, 146 N.J. at 586.        Rather, we are
    
    obligated "to check those instances where the prosecutor has so
    
    inappropriately      weighted   the    various   considerations   so     as    to
    
    constitute a 'clear error in judgment.'"              Ibid.; see also State
    
    v. Denman, 
    449 N.J. Super. 369
    , 376 (App. Div. 2017).
    
         We are mindful of the distinction between a prosecutor's
    
    "abuse of discretion" and "gross and patent abuse of discretion"
    
    
    
                                          14                                A-5084-15T3
    and the remedies appropriate for each.           In Roseman, the Court
    
    noted:
    
                    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 of judgment.
    
               [221 N.J. at 625 (quoting State v. Bender, 
    80 N.J. 84
    , 93 (1979)).]
    
         To establish a "gross and patent abuse of discretion" that
    
    justifies supplanting the prosecutor's decision, a defendant must
    
    also show "that the prosecutorial error complained of will clearly
    
    subvert   the   goals   underlying    Pretrial   Intervention."     Ibid.
    
    (quoting Bender, supra, 80 N.J. at 93).      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."         Wallace, supra, 146
    
    N.J. at 582-83 (citation omitted).
    
         "If the prosecutor's abuse arises from a clear error of
    
    judgment, a court may order that a defendant be admitted into the
    
    program," State v. DeMarco, 
    107 N.J. 562
    , 567 (1987), and may do
    
    so "over the prosecutor's objection."        Roseman, supra, 221 N.J.
    
    at 625; see also Nwobu, supra, 139 N.J. at 247.
    
    
    
    
                                         15                           A-5084-15T3
         When there has been an error that does not meet the "patent
    
    and gross abuse of discretion" standard, the appropriate remedy
    
    is a remand to the prosecutor, which affords the prosecutor "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.'"           K.S., supra, 220 N.J. at
    
    200 (quoting State v. Dalglish, 
    86 N.J. 503
    , 514 (1981)); see also
    
    Denman, supra, 449 N.J. Super. at 377.
    
                                        III.
    
         As the trial judge correctly stated, it is a patent and gross
    
    abuse of discretion when a prosecutor applies a per se bar to
    
    reject a defendant's application to PTI.            We disagree, however,
    
    with the conclusion that the record supports the finding that the
    
    prosecutor applied a per se bar here.
    
         Most typically, a per se bar is based upon an explicit,
    
    admitted policy the prosecutor follows without regard to the
    
    defendant's personal characteristics.           For example, in Baynes,
    
    supra, 148 N.J. at 440, the prosecutor advised the defendant in
    
    writing "that his PTI application was rejected because of that
    
    prosecutor's      acknowledged    policy   to   deny   PTI      admission    to
    
    defendants charged with "school zone offenses," including those
    
    involving possession of CDS for personal use." (emphasis added).
    
    Similarly,   in    State   v.    Caliguiri,   
    158 N.J. 25
        (1999),    the
    
                                         16                               A-5084-15T3
    prosecutor treated the PTI applicant as "categorically ineligible"
    
    based upon a directive from the Attorney General that required
    
    prosecutors to object to any PTI application by any person charged
    
    under N.J.S.A. 2C:35-7 unless the proofs were insufficient to
    
    sustain a conviction.        Id. at 34.
    
          The consequences for finding a per se rule was applied are
    
    significant:
    
               By their nature, per se rules require
               prosecutors to disregard relevant factors,
               contrary to the guidelines, and when a
               defendant demonstrates that a prosecutor has
               relied on such a rule, the presumption that
               the prosecutor has considered all relevant
               facts is overcome.
    
               [Baynes, supra, 148 N.J. at 444-45 (emphasis
               added).]
    
          Here, the conclusion that a per se rule was applied can only
    
    be   inferred   from   the    statement   of   the   prosecutor   and   the
    
    deficiencies in the rejection letter.          Although those facts are
    
    not inconsistent with that conclusion, they are not sufficiently
    
    probative of that conclusion.       As a result, the court was required
    
    to engage in closer scrutiny of the prosecutor's rejection.
    
                                        IV.
    
          Because defendant is charged with offenses that fall within
    
    PTI Guideline 3(i)(2) and thus is presumptively ineligible for
    
    admission into PTI, the court must first determine whether he has
    
    
                                        17                             A-5084-15T3
    satisfied his burden to present "compelling reasons" to rebut the
    
    presumption against his admission into PTI. Defendant was required
    
    to present facts or materials "'demonstrating [his] amenability
    
    to the rehabilitative process' and 'showing compelling reasons
    
    justifying   [his]   admission   and      establishing   that   a   decision
    
    against enrollment would be arbitrary and unreasonable.'"              State
    
    v. Seyler, 
    323 N.J. Super. 360
    , 369 (1999), aff'd o.b., 
    163 N.J. 69
     (2000); Pressler & Verniero, supra, Guidelines 2, 3(i), at
    
    1234-35.   This means he "must demonstrate something extraordinary
    
    or unusual, something 'idiosyncratic,' in his . . . background."
    
    Nwobu, supra, 139 N.J. at 252 (quoting State v. Jabbour, 
    118 N.J. 1
    , 7 (1990).    This does not, however, require proof that denial
    
    of his PTI application "would constitute a 'serious injustice.'"
    
    Caliguiri, supra, 158 N.J. at 44.
    
          To determine whether defendant has presented "compelling"
    
    reasons to justify his admission into PTI, "the prosecutor and any
    
    reviewing court are required to consider the criteria set forth
    
    in   N.J.S.A.   2C:43-12,"   which    "include    '[t]he   nature    of   the
    
    offense,' '[t]he facts of the case,' '[t]he needs and interests
    
    of . . . society,' and '[w]hether or not the crime is of such a
    
    nature that the value of supervisory treatment would be outweighed
    
    by the public need for prosecution.'"            Seyler, supra, 
    323 N.J. 18
                                  A-5084-15T3
    Super. at 369-70 (alterations in original) (citations omitted);
    
    see also K.S., supra, 220 N.J. at 198.
    
           It is appropriate to bear in mind the rationale underlying
    
    the    presumptions      contained       in    the    Guidelines.         Presumptions
    
    against PTI reflect an assumption that certain defendants "have
    
    committed crimes that are, by their very nature, serious or heinous
    
    and    with    respect     to    which     the       benefits   of   diversion      are
    
    presumptively unavailable."               Roseman, supra, 221 N.J. at 622
    
    (quoting      Watkins,     supra,   193       N.J.    at    523).    The    reasoning
    
    underlying the presumption is that applicants "who have committed
    
    serious and heinous crimes are generally recognized as problematic
    
    from a rehabilitation standpoint."                   Watkins, supra, 193 N.J. at
    
    513.
    
           This    case   is    ill-suited         for    the    application     of    this
    
    assumption.       First, the offense charged cannot reasonably be
    
    considered "heinous," or of such a character that the offender
    
    should   be    considered       unlikely      to     be   amenable   to   correction.
    
    Second, defendant's personal circumstances offer strong support
    
    for the conclusion, reached by the Criminal Division manager, that
    
    he is unlikely to reoffend.              We leave it to the trial court to
    
    apply the statutory criteria to the facts in defendant's background
    
    and the circumstances of the offense to determine whether defendant
    
    has presented compelling reasons for his admission to PTI.
    
                                              19                                   A-5084-15T3
                                          V.
    
         In the event the trial court should conclude defendant has
    
    presented      compelling   reasons    for    his    admission,    the    next
    
    consideration is whether defendant has shown an abuse of discretion
    
    by satisfying one of the three factors identified in Roseman,
    
    i.e., whether the prosecutor's rejection was "premised upon a
    
    consideration of all relevant factors."          Roseman, supra, 221 N.J.
    
    at 625 (quoting Bender, supra, 80 N.J. at 93).               Scrutiny of the
    
    prosecutor's statement of reasons here is particularly appropriate
    
    because the State has consistently maintained in the trial court
    
    and on appeal that its statement of reasons reflects a full and
    
    fair consideration of all factors relevant to defendant's PTI
    
    application     and   provides   a   sound   legal   basis   for   rejection.
    
    Additionally, we note, "a reviewing court's scrutiny is generally
    
    limited   to    the   justification    contained     in   the   statement    of
    
    reasons."      Wallace, supra, 146 N.J. at 584.
    
         Our courts have emphasized the importance of the statement
    
    of reasons mandated by N.J.S.A. 2C:43-12(f), which "serves four
    
    purposes: (1) It facilitates effective judicial review; (2) it
    
    assists in evaluating the success of the PTI program; (3) it
    
    affords the defendant the opportunity to prepare a response; and
    
    (4) it dispels suspicions of arbitrariness."              Nwobu, supra, 139
    
    N.J. at 249 (citing Leonardis, supra, 71 N.J. at 114-15).
    
                                          20                              A-5084-15T3
                                         A.
    
          A review of the applicable principles is helpful in evaluating
    
    the statement of reasons here.
    
          Each PTI applicant is "entitled to full and fair consideration
    
    of his application."       N.J.S.A. 2C:43-12(f).          The statement of
    
    reasons must show that the prosecutor has made an individualized
    
    assessment of the defendant, giving due consideration to the
    
    statutory   factors,     N.J.S.A.    2C:43-12(e),   and    evaluating    the
    
    individual applicant's "amenability to rehabilitation," Roseman,
    
    supra, 221 N.J. at 630 (quoting Nwobu, supra, 139 N.J. at 255).
    
    The factors that must be considered include "the details of the
    
    case, defendant's motives, age, past criminal record, standing in
    
    the   community,   and    employment      performance[.]"     Id.   at   621
    
    (alteration in original) (quoting Watkins, supra, 193 N.J. at
    
    520); accord Denman, supra, 449 N.J. Super. at 376. The prosecutor
    
    cannot ignore evidence bearing on the relevant factors in the
    
    Guidelines and PTI statute.         State v. Lee, 
    437 N.J. Super. 555
    ,
    
    567-68 (App. Div. 2014), certif. denied, 
    222 N.J. 18
     (2015).               At
    
    a minimum, the prosecutor "should note the factors present in
    
    defendant's background or the offense purportedly committed which
    
    led [the prosecutor] to conclude that admission should be denied."
    
    Nwobu supra, 139 N.J. at 249 (alteration in original) (quoting
    
    State v. Sutton, 
    80 N.J. 110
    , 117 (1979)).
    
                                         21                             A-5084-15T3
          The     statement      of   reasons        "must      demonstrate          that        the
    
    prosecutor has carefully considered the facts in light of the
    
    relevant    law."         Wallace,      supra,    146    N.J.    at     584.        "[B]ald
    
    declarations" that "merely parrot[] the statutory language without
    
    providing any factual justification . . . are insufficient to
    
    support PTI denial."         Roseman, supra, 221 N.J. at 627-29.
    
          "[T]he statement of reasons must not be vague," either.
    
    Nwobu, supra, 139 N.J. at 249.              Rather, the prosecutor's reasons
    
    for   rejection      of    the    PTI    application        must      be       stated    with
    
    "sufficient     specificity        so    that     defendant       has      a     meaningful
    
    opportunity     to    demonstrate        that    they    are    unfounded."             Ibid.
    
    (citation omitted).
    
          Typically, a prosecutor's rejection letter addresses each of
    
    the factors listed in N.J.S.A. 2C:43-12(e) and explains how each
    
    factor   is    or    is    not    relevant       to   its      consideration            of    an
    
    application.        Although plainly a preferred approach, it need not
    
    be followed if the prosecutor's consideration of all appropriate
    
    factors is evident from a reading of the statement of reasons.
    
    That is not the case here.
    
                                               B.
    
          There    are    certain     glaring       deficiencies       in      the    rejection
    
    letter relied upon as the prosecutor's statement of reasons.                                 Of
    
    the seventeen factors listed in N.J.S.A. 2C:43-12(e), only two are
    
                                              22                                        A-5084-15T3
    reflected in the statement of reasons: "(1) the nature of the
    
    offense," 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."   Even as to these two factors, the rejection letter
    
    merely notes defendant is charged with a second-degree offense and
    
    parrots factor (17).   To the extent the rejection letter may be
    
    viewed as invoking factors (11) and (14), it was only in conclusory
    
    fashion.
    
         Statutory factors that plainly should have been considered
    
    include: N.J.S.A. 2C:43-12(e)(2), (3), and (8) through (13). While
    
    the prosecutor noted the degree of the offense, there was no
    
    discussion of the circumstances of the offense.       See Roseman,
    
    supra, 221 N.J. at 621; Watkins, supra, 193 N.J. at 520; Cannel,
    
    New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:43-
    
    12 (2017) (noting, "the circumstances of the crime rather than the
    
    particular crime charged must be involved in the decision.")
    
    Relevant to factors (2) and (10), the offense was discovered as
    
    the result of a motor vehicle stop for tailgating.   The weapon was
    
    not associated with any other crime and was revealed only because
    
    defendant looked in the console for his credentials to comply with
    
    the officer's request following a motor vehicle stop.    There was
    
    nothing in the police reports to suggest that defendant was
    
                                   23                           A-5084-15T3
    anything other than fully cooperative with their commands – no
    
    assaultive, suspicious or evasive behavior.
    
         Factor (3), the defendant's age and motivation were also
    
    highly relevant factors.     It was dismissive of the prosecutor to
    
    merely describe defendant as a first-time offender.         There was no
    
    discussion of his age, personal history, standing in the community
    
    or employment record.       See Roseman, supra, 221 N.J. at 621;
    
    Watkins, supra, 193 N.J. at 520.
    
         At age twenty-six, this was defendant's first known contact
    
    with the criminal justice system.          That means he had no juvenile
    
    adjudications or charges, no charges that were dismissed and no
    
    arrests for criminal or disorderly persons offenses.           And, as a
    
    result, there is no evidence of a "continuing pattern of anti-
    
    social behavior" (factor 8), any "record of criminal and penal
    
    violations" that signal "a substantial danger to others" (factor
    
    9), no "history of the use of physical violence toward others"
    
    (factor 12), and no involvement with organized crime (factor 13).
    
         Because "juveniles are responsible for a large share of the
    
    total   amount   of   crime, . . .    an   applicant's   juvenile    record
    
    clearly is relevant to the question whether admission into a PTI
    
    program 'can reasonably be expected to deter future criminal
    
    behavior by an applicant,'" and "whether an applicant's history
    
    includes 'the use of physical violence towards others[.]'"            State
    
                                         24                             A-5084-15T3
    v. Brooks, 
    175 N.J. 215
    , 227-28 (2002) (alteration in original)
    
    (citations omitted).    We note further that defendant expressed
    
    remorse and acknowledged he exercised poor judgment in engaging
    
    in this conduct.
    
         Although defendant's fear does not justify arming himself in
    
    anticipation of the need to act in self-defense, it does provide
    
    a non-criminal purpose for his possession of the firearm relevant
    
    to factor (3).   His stated motivation was accepted as credible by
    
    the Criminal Division manager.    The lack of any criminal history
    
    bolstered that conclusion.   Yet, the rejection letter reflects no
    
    consideration that defendant was motivated by fear rather than by
    
    a motive consistent with the assumption underlying the presumption
    
    against PTI, such as an intent to use the firearm to commit an
    
    independent offense.
    
         All these factors weigh heavily in evaluating the likelihood
    
    that a PTI applicant may be deterred from further criminal activity
    
    without the need for criminal prosecution.    They were considered
    
    by the Criminal Division in reaching the conclusion that defendant
    
    was a suitable candidate for PTI but were not addressed in the
    
    rejection letter.
    
         In addition to failing to adequately address the statutory
    
    factors or conduct an individualized assessment of defendant, the
    
    rejection letter did not apply the principle set forth in N.J.S.A.
    
                                     25                         A-5084-15T3
    2C:43-12(b)(1): "Admission of an applicant into a program of
    
    supervisory      treatment       shall     be       measured    according        to      the
    
    applicant's      amenability          to    correction,         responsiveness             to
    
    rehabilitation and the nature of the offense."                       See also Roseman,
    
    supra, 221 N.J. at 621-22; State v. Mickens, 
    236 N.J. Super. 272
    ,
    
    278   (App.    Div.     1989)    (finding       a   patent     and    gross    abuse       of
    
    discretion that warranted ordering defendant into PTI where "the
    
    prosecutor      had     not     one   positive        word     to     say     about      the
    
    rehabilitation standard, which is so fundamental a part of PTI"
    
    and the defendant's amenability to rehabilitation).                      The rejection
    
    letter demonstrates that defendant's PTI application was measured
    
    based upon the nature of the offense to the exclusion of the other
    
    statutorily mandated considerations, which require a focus on the
    
    defendant's personal attributes.
    
          The record plainly shows the prosecutor failed to consider
    
    all relevant factors in defendant's application or to make an
    
    individualized assessment of him.
    
                                               C.
    
          To determine whether the rejection rose to the level of a
    
    "patent and gross" abuse of discretion                       the trial court must
    
    consider      whether    this     failure       clearly      subverted        the     goals
    
    underlying PTI.       See Roseman, supra, 221 N.J. at 625.
    
    
    
                                               26                                       A-5084-15T3
         The Guidelines for Operation of Pretrial Intervention in New
    
    Jersey adopted by the Supreme Court include an articulation of the
    
    program's purposes:
    
              (1) to enable defendants to avoid ordinary
              prosecution by receiving early rehabilitative
              services expected to deter future criminal
              behavior; (2) to provide defendants who might
              be harmed by the imposition of criminal
              sanctions with an alternative to prosecution
              expected to deter criminal conduct; (3) to
              avoid     burdensome     prosecutions     for
              "victimless"   offenses;   (4)   to   relieve
              overburdened criminal calendars so that
              resources can be expended on more serious
              criminal matters; and (5) to deter future
              criminal behavior of PTI participants.
    
              [Nwobu, supra, 139 N.J. at 247 (citing
              Pressler & Verniero, supra, Guideline 1, at
              1233).]
    
         Pursuant to Guideline 2, "[a]ny defendant accused of crime
    
    shall be eligible for admission into a PTI program," and such
    
    eligibility   "is   broad   enough    to   include    all   defendants   who
    
    demonstrate   sufficient    effort    to   effect    necessary   behavioral
    
    change and show that future criminal behavior will not occur."
    
    Pressler & Verniero, supra, Guideline 2, at 1234, see also Nwobu,
    
    supra, 139 N.J. at 247-48.     Because the breadth of eligibility is
    
    measured by the defendant's capacity to avoid future criminal
    
    conduct, offense-related factors will not defeat eligibility in
    
    appropriate cases.    See Caliguiri, supra, 158 N.J. at 39 ("Even
    
    offenders charged with violent or first-degree offenses are not
    
                                         27                             A-5084-15T3
    categorically ineligible.").   Guideline 3 explicitly provides for
    
    consideration, under specific circumstances, of PTI applications
    
    from persons who are not first offenders, Pressler & Verniero,
    
    supra, Guideline 3(e), at 1234-35; are charged with more than one
    
    offense, Nwobu, supra, 139 N.J. at 247-48; or are parolees or
    
    probationers, Pressler & Verniero, supra, Guideline 3(f), at 1235.
    
    Guideline 3(i), therefore calls for a "balance [to be] struck
    
    between a defendant's amenability to correction, responsiveness
    
    to rehabilitation and the nature of the offense."    Id., Official
    
    Comment to Guideline 3, at 1237-38.
    
         The prosecutor made no effort to strike such a balance, in
    
    contravention of Guideline 3(i).     Moreover, the narrow focus on
    
    the nature of the offense, divorced from its circumstances and the
    
    factors in defendant's background that led the Criminal Division
    
    manager to conclude he was unlikely to reoffend, is at odds with
    
    the goal of PTI to afford the opportunity to avoid criminal
    
    prosecution to "all defendants" who can show "future criminal
    
    behavior will not occur."
    
         The Official Comment to Guideline 1 notes that diversion "can
    
    serve as sufficient sanction to deter future criminal conduct" in
    
    appropriate cases; that some people "can be deterred from criminal
    
    behavior by short term rehabilitative work or supervision" while
    
    for others, "no more than a supervised pretrial probationary period
    
                                    28                          A-5084-15T3
    may be necessary when no extensive need for rehabilitative services
    
    can be discerned."     Id., Official Comment to Guideline 1, at 1233.
    
    Further, the public interest can be served when diversion "results
    
    in the deterrence of future misconduct."           Ibid.
    
         These principles highlight the fact that the central purpose
    
    of PTI is to "divert[] eligible defendants out of the criminal
    
    process to their own advantage, society's and that of the criminal
    
    justice system."      Mickens, supra, 236 N.J. Super. at 277.              The
    
    relevant question is whether defendant can be deterred from future
    
    criminal behavior and it is answered through an individualized
    
    assessment of his amenability to refrain from such conduct.                The
    
    label placed on the offense charged does not dictate the answer
    
    and it is understood that some PTI applicants, like defendant,
    
    will not require extensive rehabilitative services to accomplish
    
    this goal.
    
         The     prosecutor   ignored    these   principles.     There   was    no
    
    individualized       assessment     of     defendant's     amenability      to
    
    correction.     It is also noteworthy that the prosecutor failed to
    
    consider the deterrent value of the requirement imposed by N.J.S.A.
    
    2C:43-12(g)(3).       Because he was charged with a second degree
    
    offense, defendant would be required to enter a guilty plea that
    
    would   be    held   in   abeyance       pending   defendant's   successful
    
    completion of the PTI program.            Yet, there was no consideration
    
                                         29                              A-5084-15T3
    as to whether this veritable sword of Damocles would adequately
    
    serve   any    of    the   legitimate    prosecution    interests   regarding
    
    defendant's offense or provide sufficient incentive for defendant
    
    to be deterred from future criminal activity.
    
         Despite the manifest inadequacy of the rejection letter, the
    
    prosecutor has maintained throughout that its rejection was based
    
    upon a full and fair consideration of defendant's application.
    
    "Failure      to    provide   'comprehensive   and     flexible'    evaluation
    
    'undermine[s] the efficacy of PTI.'"           Caliguiri, supra, 158 N.J.
    
    at 39 (alteration in original) (citations omitted).
    
                                            D.
    
         In the event the trial judge concludes the rejection here
    
    constituted a patent and gross abuse of discretion, the next
    
    decision concerns the appropriate remedy.                In Mickens, supra,
    
    Judge Pressler 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.
    
    
    
                                            30                             A-5084-15T3
               [236 N.J. Super. at 277-78 (quoting State v.
               DeMarco, 
    107 N.J. 562
    , 567 (1987)).]
    
         Although a remand to the prosecutor is the customary remedy,
    
    that is not the required disposition even when the prosecutor's
    
    error is merely an abuse of discretion and does not rise to the
    
    level of a patent and gross abuse of discretion.          The reviewing
    
    court should determine that a remand will "serve a useful purpose."
    
    Caliguiri, supra, 158 N.J. at 43 (citing Dalglish, supra, 86 N.J.
    
    at 509).
    
         Although these examples are not exclusive, a useful purpose
    
    is served when "the prosecutor failed to consider all relevant
    
    factors," Wallace, supra, 146 N.J. at 583-84; when the prosecutor
    
    mistakenly   applied   a   presumption   of   PTI   ineligibility     under
    
    Guideline 3(i) to a defendant not charged with one of the included
    
    crimes, State v. Coursey, 
    445 N.J. Super. 506
    , 512 (App. Div.
    
    2016); when the rejection was improperly based upon a prosecutor's
    
    policy, State v. Baynes, 
    148 N.J. 434
    , 450 (1997), or a directive
    
    from the Attorney General, Caliguiri, supra, 158 N.J. at 45, rather
    
    than upon an individualized assessment of the PTI applicant; or
    
    when the Court has announced a new interpretation of a Guideline
    
    to be considered in evaluating the defendant's application, K.S.,
    
    supra, 220 N.J. at 199.     What is common to each of these examples
    
    is that the rejection decision rested upon a legal error that
    
    
                                      31                                A-5084-15T3
    could readily be remedied on remand pursuant to the reviewing
    
    court's direction.
    
         A different course of action is appropriate when the error
    
    represents an error in judgment.
    
               It is unlikely, on the other hand, that a
               remand would serve a useful purpose if the
               prosecutor's decision was based on appropriate
               factors   but,   clearly   and   convincingly,
               amounted to a plain error of judgment
               equivalent to a patent and gross abuse of
               discretion. In that situation it is usually
               appropriate for a court directly to order
               admission to PTI.
    
               [Wallace, supra, 146 N.J. at 584.]
    
         In Roseman,1 supra, the Court acknowledged that a remand was
    
    the customary remedy for an inadequate statement of reasons by the
    
    prosecutor.   221 N.J. at 629.    Nonetheless, the Court concluded a
    
    remand was inappropriate because the "circumstances show clearly
    
    and convincingly that there has been a patent and gross abuse of
    
    discretion by the prosecutor which constituted a clear error in
    
    judgment that will 'subvert the goals underlying [PTI].'"         Id. at
    
    629-30   (alteration   in   original)   (citation   omitted);   see   also
    
    Wallace, supra, 146 N.J. at 582 (noting a reviewing court may
    
    order a defendant into PTI if the defendant can "clearly and
    
    
    1
        In Roseman, the defendants were charged with second-degree
    official misconduct, which creates a presumption against
    acceptance into PTI under both the Guidelines and N.J.S.A. 2C:43-
    12(b). 221 N.J. at 617, 618-19.
    
                                      32                             A-5084-15T3
    convincingly establish that the prosecutor's refusal to sanction
    
    admission into the program was based on a patent and gross abuse
    
    of . . . discretion."     (alteration   in   original)   (citation
    
    omitted)).   "[A]n error in applying guidelines to the facts of the
    
    case" will rise to a "clear error of judgment" if it "is one that
    
    'could not have reasonably been made upon a weighing of the
    
    relevant factors.'"     Nwobu, supra, 139 N.J. at 253-54 (quoting
    
    State v. Roth, 
    95 N.J. 334
    , 366 (1984)).
    
         At the time the assistant prosecutor announced at defendant's
    
    arraignment that the State would oppose his PTI application, it
    
    was evident that the statement was made without any access to or
    
    consideration of defendant's personal background or amenability
    
    to correction.    The State has not contended otherwise.    If the
    
    rejection here was not based on the offense charged, per se, the
    
    rejection letter was not just the prosecutor's opportunity to
    
    elaborate; it was the prosecutor's obligation to show there had
    
    been an individualized assessment of defendant and the offense
    
    committed, applying the statutory factors.       The statement of
    
    reasons relied upon by the State utterly failed to do so.
    
         Certainly, the nature of the offense is a relevant factor,
    
    but the rejection letter also includes an implicit conclusion —
    
    that defendant is not amenable to correction.    That factor is at
    
    the core of any assessment of a defendant's PTI application.    Yet,
    
                                    33                          A-5084-15T3
    despite the State's persistence it has fully and fairly considered
    
    all relevant factors, there is no evidence that the prosecutor
    
    properly   considered   and   weighed   defendant's   amenability    to
    
    correction.
    
         We therefore remand this matter to the trial judge for further
    
    proceedings consistent with this opinion.         We do not retain
    
    jurisdiction.
    
    
    
    
                                     34                           A-5084-15T3