STATE OF NEW JERSEY VS. BRANDON J. GILLÂ (14-07-0807, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )


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  •                              RECORD IMPOUNDED
    
                            NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
         This opinion shall not "constitute precedent or be binding upon any court."
          Although it is posted on the internet, this opinion is binding only on the
             parties in the case and its use in other cases is limited. R.1:36-3.
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-0611-15T3
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Appellant,
    
    v.
    
    BRANDON J. GILL,
    
            Defendant-Respondent.
    
    ________________________________
    
                  Argued February 6, 2017 – Decided           September 8, 2017
    
                  Before Judges Sabatino, Nugent and Currier.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Middlesex County, Indictment No.
                  14-07-0807.
    
                  Brian D. Gillet, Deputy First Assistant
                  Prosecutor, argued the cause for appellant
                  (Andrew C. Carey, Middlesex County Prosecutor,
                  attorney; Mr. Gillet, of counsel and on the
                  brief).
    
                  David R. Oakley argued the        cause for
                  respondent (Anderl & Oakley, PC, attorneys;
                  Mr. Oakley, of counsel and on the brief).
    
    PER CURIAM
    
            The State appeals from a September 29, 2015 order denying its
    
    motion for reconsideration.            The State had asked the trial court
    to reconsider its decision granting defendant's motion to be
    
    admitted into the Pretrial Intervention Program (PTI) over the
    
    State's objection.          For the reasons that follow, we reverse and
    
    remand for further consideration — by the prosecutor in the first
    
    instance — the PTI decision concerning defendant.
    
           These   are    the    facts.      Defendant,    a   Florida   resident,
    
    established a virtual relationship with a New York City resident
    
    (his   "girlfriend").1         The    duration   of   their   relationship    is
    
    unclear, however, their exchange of text messages indicates the
    
    one-year anniversary of their first online meeting was approaching
    
    in April 2014.        In anticipation of their anniversary, defendant
    
    and his girlfriend planned to meet in person.
    
           Their March 2014 text message exchanges demonstrate defendant
    
    and his girlfriend were enamored with one another.                Defendant's
    
    girlfriend was looking forward to their in-person meeting as much
    
    as defendant.        In fact, as late as the night of April 22, 2014,
    
    she exchanged amorous, intimate text messages with defendant. That
    
    changed the morning of April 23, 2014, the day before defendant
    
    left for their in-person meeting.
    
    
    
    
    1
      The record is not entirely clear, but defendant and his
    girlfriend might have communicated by phone as well as by text
    messages.
    
                                             2                             A-0611-15T3
           That morning, though defendant's girlfriend professed she
    
    missed him, she revealed she had been at a party where she talked
    
    and danced with another man.        The other man laughed when she said
    
    she had a boyfriend. During a dance, the man groped her and pinned
    
    her against a wall. In a text message to defendant, his girlfriend
    
    said she did not push the other man off when he touched her.              She
    
    also said she was drunk and did not remember the incident.
    
           Defendant's responsive text messages reveal he was angry
    
    about what had occurred between his girlfriend and the other man.
    
    Defendant believed the other man had no respect for defendant's
    
    relationship.     Defendant's girlfriend texted defendant that she
    
    would tell the other man to back off when she saw him later.              The
    
    text message exchange then reverted to amorous professions.
    
           Later that afternoon, defendant's girlfriend disclosed in a
    
    text message she had kissed the other man.          Although she insisted
    
    "it was the liquor," defendant texted her, "I don't want you
    
    talking to him, hang[ing] around him, [texting] him, or none of
    
    that   cause   that   shit   just   crossed   the     line   right   there."
    
    Defendant's     girlfriend   thought      defendant    was   overreacting,
    
    repeating "it was the liquor."       Defendant replied: "Lucky I'm not
    
    there to fuck his ass up and you know I'll do it if I see his
    
    trifflin ass."
    
    
    
                                          3                              A-0611-15T3
          Defendant said he would "let it go" because he was "not going
    
    to let [it] mess up" his day or time together with his girlfriend.
    
    He   apologized   for   overreacting   and   accepted   his   girlfriend's
    
    explanation that "it was the liquor."
    
          Defendant's girlfriend went to the other man's house on the
    
    afternoon of April 23, 2014, where they shared pizza and watched
    
    a movie.   When she returned home, she exchanged many text messages
    
    with defendant.    In some, the virtual couple professed their love
    
    for one another, but the focus of the exchanges returned to
    
    defendant's girlfriend's interaction with the other man.
    
          Then, late on the night of April 23, after defendant had
    
    packed for the drive to New York, his girlfriend became angry
    
    about something he posted on Facebook.         The content is not clear
    
    from their text message exchange.       Her anger escalated, however,
    
    because she believed the Facebook content was an attempt to make
    
    her look stupid.    She told defendant to leave her alone.        She said
    
    repeatedly it was not the first time he had done things to make
    
    her look stupid to his friends.
    
          On the morning of April 24, 2014, as defendant prepared to
    
    leave for New York, he asked his girlfriend for her address.            She
    
    texted him to forget it and to have fun, a message she repeated
    
    several times.    Although she never provided her address, defendant
    
    drove to New York.       As defendant drove up the East Coast, he
    
                                       4                               A-0611-15T3
    continued to text his girlfriend in anticipation of meeting her.
    
    The content and tone of the messages was that he loved her and
    
    would not let anything prevent him from meeting her.          Defendant's
    
    girlfriend mostly ignored his text messages.           She made it clear,
    
    however, she did not want to spend time with him.
    
         When defendant was approximately two hours from New York, he
    
    texted his girlfriend and asked if he could stay with her because
    
    he had no place to go.     She replied he should put that message on
    
    his Facebook to see what his friends thought about it.         Later that
    
    night, at 10:50 p.m., defendant told his girlfriend he was at
    
    Central Park and asked if they could meet.         By 1:05 a.m. on April
    
    25, 2014, defendant still had not heard from his girlfriend, and
    
    he told her he would be sleeping in his car.
    
         At    approximately    6:58   a.m.   on   April    25,   defendant's
    
    girlfriend    finally   texted   defendant   and   asked   where   he   was.
    
    Defendant responded he was in Jersey City, and again requested to
    
    see her.   She refused, declining to provide defendant her home or
    
    school address.    At 7:14 p.m. on April 25, defendant texted his
    
    girlfriend he was at the South Brunswick Police Station "getting
    
    locked up."    The following day, at 5:48 a.m., he explained to her
    
    in a text message: "I had a gun [in] my car and I wasn't aware of
    
    the gun laws in Jersey so I told them what I had and they searched
    
    my car [and] didn't find anything."
    
                                        5                              A-0611-15T3
           According to the arresting officer's investigation report,
    
    on April 25, 2014, at approximately 2:56 p.m., he was dispatched
    
    to a shopping center to investigate a suspicious vehicle that had
    
    been parked for eight hours with its engine running.                He and
    
    another officer approached the vehicle, asked the driver for his
    
    credentials, and identified the driver as defendant.             Defendant
    
    told the officers he left Florida the day before to meet friends
    
    in New York City, arriving at 3:00 a.m. after traveling the entire
    
    day.   Defendant stated after meeting his friends, he left New York
    
    City at 5:00 a.m. to travel home.
    
           The officers found defendant's story suspicious, and noticed
    
    defendant    became   increasingly       nervous   as   their   interaction
    
    continued.    They requested defendant step out of his vehicle, and
    
    as defendant did so, one of the officers asked whether defendant
    
    had weapons in his possession.       Defendant replied he had a "'Glock
    
    9MM' handgun in his glove compartment along with an extra loaded
    
    magazine, a collapsible baton, and a knife."            The police secured
    
    the weapons, uncovering the fully loaded handgun and an additional
    
    magazine, both containing hollow-point ammunition, the baton, and
    
    the knife.    The officers placed defendant under arrest and took
    
    him to the police station.
    
           The next day, on April 26, 2014, at 1:13 a.m., defendant told
    
    his girlfriend his friend bailed him out of jail, and again asked
    
                                         6                              A-0611-15T3
    whether they could meet.               At 5:30 a.m., defendant's girlfriend
    
    finally told defendant "this is so over" and to go home. Defendant
    
    replied he had a court appearance in a few days and wished to stay
    
    with her until then.           Defendant's girlfriend refused to see him,
    
    telling defendant to return home.
    
         Following defendant's arrest, a Middlesex County grand jury
    
    returned an indictment charging him with second-degree unlawful
    
    possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree
    
    possession       of   a    prohibited     device,   hollow-point        ammunition,
    
    N.J.S.A. 2C:39-3(f).          Defendant applied for admission into PTI in
    
    October 2014.         As part of his application, he submitted character
    
    letters from his parents, his pastor, and people in his community;
    
    proof of his private employment and service with some distinction
    
    in the United States Army Reserve; and the text messages between
    
    himself    and    his      online   girlfriend.       Additionally,       defendant
    
    submitted a letter from a friend who stated he gave the handgun
    
    to defendant as a gift in 2013.
    
         The Middlesex County Criminal Case Manager (CCM) recommended
    
    the denial of defendant’s application.                 Defendant provided the
    
    prosecutor   with         additional    information   in     December    2014,   and
    
    January and February 2015.             The information included an expert's
    
    report    citing      Florida    statutes      authorizing    the   transport      of
    
    handguns in a vehicle’s glove compartment and possession of hollow
    
                                               7                                A-0611-15T3
    point bullets.    On February 18, 2015, an assistant prosecutor
    
    rejected defendant’s PTI application.    Defendant appealed.
    
         On appeal, the trial court found the State’s rejection letter
    
    "conclusory" and determined the State should have considered the
    
    Attorney General's 2014 guidelines with respect to out-of-state
    
    weapons   offenders.   The   court   remanded   the    matter   to   the
    
    prosecutor, directing the prosecutor "reference each factor and
    
    each fact that relates to that factor so that [the] [c]ourt [could]
    
    understand the State's reasoning and not just its conclusions."
    
         On April 13, 2015, the prosecutor filed its second rejection
    
    letter, analyzing all seventeen criteria set forth in N.J.S.A.
    
    2C:42-12(e) as they pertained to defendant's case.      The prosecutor
    
    also considered the Attorney General's 2014 guidelines in its
    
    second rejection letter.     Thereafter, the trial court issued a
    
    written opinion admitting defendant into PTI over the State's
    
    objection.
    
         Following defendant's entry into PTI, the State moved for
    
    reconsideration of the trial court's decision.        The court denied
    
    the State's motion in an oral decision, finding the State presented
    
    "no new facts" in its application.      The State now appeals the
    
    trial court's decision admitting defendant into PTI, raising the
    
    following argument:
    
    
    
                                     8                              A-0611-15T3
              POINT I
    
              THE TRIAL COURT ABUSED ITS DISCRETION BY
              ADMITTING DEFENDANT INTO PTI OVER THE STATE’S
              OBJECTION, BECAUSE DEFENDANT FAILED TO SHOW
              THAT THE PROSECUTOR’S REJECTION AMOUNTED TO A
              PATENT AND GROSS ABUSE OF DISCRETION.     THE
              STATE PROPERLY CONSIDERED THE 2014 AG'S
              CLARIFICATION IN MAKING THAT DECISION.
    
         The criteria for admission into PTI, as well as the procedures
    
    concerning the program, are set forth in N.J.S.A. 2C:43-12 to -22
    
    and Rule 3:28.      The Legislature's declaration of public policy
    
    underlying PTI is found in N.J.S.A. 2C:43-12(a) and summarized in
    
    Rule 3:28, Guideline 1.    "Eligibility for PTI 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."      R. 3:28, Guideline 2.    Importantly, "[e]ach
    
    applicant for supervisory treatment shall be entitled to full and
    
    fair consideration of his application."       N.J.S.A. 2C:43-12(f).
    
    When prosecutors and program directors decide whether to recommend
    
    a defendant for PTI, they are required to consider, among others,
    
    the factors enumerated in N.J.S.A. 2C:43-12(e)(1) through (17).
    
         Our review of a prosecutor's decision to deny a defendant
    
    admission into PTI is "severely limited."     State v. Negran, 
    178 N.J. 73
    , 82 (2003) (citations omitted).   Judicial review of a PTI
    
    application exists "to check only the most egregious examples of
    
    injustice and unfairness."     State v. Nwobu, 
    139 N.J. 236
    , 246
    
                                      9                         A-0611-15T3
    (1995) (quoting State v. Kraft, 
    265 N.J. Super. 106
    , 111 (App.
    
    Div. 1993)).   Absent evidence to the contrary, a reviewing court
    
    must assume that "the prosecutor's office has considered all
    
    relevant factors in reaching the PTI decision." Id. at 249 (citing
    
    State v. Dalglish, 
    86 N.J. 503
    , 509 (1981)).
    
         Nonetheless, "[i]f a defendant can '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,' . . . a reviewing court may overrule the prosecutor
    
    and order a defendant admitted to PTI."            State v. Wallace, 
    146 N.J. 576
    , 582 (1996) (first alteration in original) (quoting State
    
    v. Leonardis, 
    73 N.J. 360
    , 382 (1977)).        Generally, a defendant
    
    can establish a prosecutor has abused his or her discretion by
    
    showing:
    
               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 583 (citations omitted).]
    
         Additionally,   if   a   "reviewing   court    determines   that   the
    
    'prosecutor's decision was arbitrary, irrational, or otherwise an
    
    
                                      10                              A-0611-15T3
    abuse   of   discretion,    but   not    a   patent     and   gross   abuse'    of
    
    discretion, the reviewing court may remand to the prosecutor for
    
    further consideration."      State v. K.S., 
    220 N.J. 190
    , 200 (2015)
    
    (quoting Dalglish, supra, 86 N.J. at 509).              Thus, if a prosecutor
    
    does not consider factors that should be considered, or does
    
    consider factors that should not be considered, a remand is
    
    appropriate.        Ibid.   "A remand to the prosecutor affords an
    
    opportunity to apply the standards set forth by the court 'without
    
    supplanting    the    prosecutor's      primacy    in    determining    whether
    
    [Pretrial Intervention] is appropriate in individual cases.'"
    
    Ibid.   (alteration in original) (citation omitted).
    
         Here, we agree with the trial court that the prosecutor
    
    considered factors that should not have been considered in the
    
    rejection of defendant's PTI application.               We disagree, however,
    
    with the trial court's remedy, namely, admitting defendant into
    
    PTI over the prosecutor's objection.              Rather, we conclude the
    
    prosecutor's reliance on inappropriate factors constituted an
    
    abuse of discretion but not a patent abuse of discretion.                      For
    
    that reason, we remand to afford the prosecutor the opportunity
    
    to   apply    the    applicable   standards       without     supplanting      the
    
    prosecutor's primacy in determining whether PTI is appropriate.
    
         In the second letter explaining the decision not to admit
    
    defendant into PTI, after detailing the facts in defendant's email
    
                                         11                                  A-0611-15T3
    exchanges and the arresting officer's report — with emphasis on
    
    defendant's threats concerning the other man his girlfriend was
    
    seeing — the assistant prosecutor reviewed each of the required
    
    statutory criteria.   She noted the rebuttable presumption against
    
    admitting defendants charged with second-degree crimes into PTI,
    
    Rule 3:28, Guideline 3(i), and rejected the notion defendant had
    
    shown compelling reasons to overcome the presumption.
    
           One theme of the assistant prosecutor's decision — which she
    
    repeated and emphasized throughout her letter — was that before
    
    leaving Florida, defendant loaded the gun and ammunition into his
    
    car.     The assistant prosecutor also repeatedly asserted that
    
    defendant's nervousness, shaking hands, and evasive answers when
    
    confronted by police in the parking lot "strongly show he knew
    
    that he [did not] have the misimpression that the gun was lawfully
    
    being possessed by him and also clearly makes suspect his motive
    
    for having [the] weapons."      The assistant prosecutor stressed
    
    defendant "previously worked for a security company and is in the
    
    military.    Both occupations have rules and regulations regarding
    
    firearms and the need to know and comply with them." The assistant
    
    prosecutor declared "there is no way . . . defendant believed
    
    honestly that his possession under those circumstances was lawful,
    
    given his age, his prior military experience, and security job
    
    experience."
    
                                     12                         A-0611-15T3
          The     assistant    prosecutor        also    addressed     the    Attorney
    
    General's September 24, 2014 letter regarding "Clarification of
    
    'Graves Act' 2008 Directive with Respect to Offenses Committed by
    
    Out-of-State     Visitors      From   States     Where    Their   Gun-Possession
    
    Conduct     Would   Have       Been    Lawful"      ("Clarification").           The
    
    Clarification applies to Graves Act cases where the defendant is
    
    an out-of-state resident who produces proof that: 1) the firearm
    
    had been lawfully acquired in another jurisdiction, 2) defendant's
    
    possession would have been lawful in his or her home jurisdiction,
    
    and 3) defendant was under the misimpression that such possession
    
    was lawful in New Jersey.
    
          The   assistant     prosecutor     acknowledged       defendant     produced
    
    proofs the handgun was obtained lawfully and his possession of it
    
    would have been lawful in his home jurisdiction.                     She did not
    
    feel, however, defendant satisfied the third criteria, namely, he
    
    was under the misimpression that such possession was lawful in New
    
    Jersey.     She found "clear evidence to the contrary" – defendant
    
    did not immediately volunteer to the police that he had a gun in
    
    the   glove    compartment;      defendant's        "nervousness    and    evasive
    
    answers     strongly    show    he    knew   that    he   [did    not]    have   the
    
    misimpression that the gun was being lawfully possessed by him and
    
    also clearly makes suspect his motive for having these weapons";
    
    and "[i]t was only after [the police] asked [defendant] out of the
    
                                            13                                  A-0611-15T3
    vehicle and asked him if there were any weapons in there that he
    
    told them there were."
    
         The trial court issued a written opinion rejecting the State's
    
    reasoning and ordered defendant be admitted into PTI.          After
    
    recounting the facts, setting forth the procedural history, and
    
    citing controlling precedent, the court concluded "this is one of
    
    those rare cases that require reversal because the prosecutor has
    
    so inappropriately weighed the relevant factors that the decision
    
    amounts to a 'patent and gross abuse of discretion.'"      The court
    
    noted it was viewing the State's reasons "through the lens of the
    
    Attorney General's [Clarification]."
    
         The court began:
    
                   While the prosecutor is not required to
              accept the defendant's explanation given in
              furtherance of a PTI application, neither is
              the prosecutor free to assume facts not found
              in the record to justify the [S]tate's PTI
              rejection.    The April 13, 2015 rejection
              letter repeatedly assumes that the defendant
              specifically loaded the gun and ammunition
              into the glove compartment as part of his
              preparations for his trip to New York City.
              The State also implies that the defendant took
              the gun and ammunition as a direct consequence
              of and in response to the text messages about
              [the   girlfriend's]    revelations   of   her
              interactions with another man.       There is
              nothing in the     record to give credence to
              these assumptions by the State. It is just
              as likely that the gun and ammunition were
              always kept in the glove compartment and were
              not put in the car as part of preparation for
              this trip.   In fact, at no time during the
    
                                   14                            A-0611-15T3
              prolonged text exchanges between [defendant]
              and [his girlfriend] after [his girlfriend's]
              rejection did threats of violence occur.
              There were only the plaintive supplications
              of   a  lovesick   and   disappointed   suitor
              interspaced with an accusation expression of
              anger.   Thus, the State's rejection letter
              completely mischaracterized the defendant's
              motivation.    The State, in describing the
              nature of the offense, also refers to the
              knife and baton in the glove compartment. In
              fact, the defendant was never charged with any
              crime that related to the presence of these
              items nor is there any suggestion that the
              possession of these items was in any way
              unlawful.
    
         Concerning   the   assistant   prosecutor's   assertion   that
    
    defendant's prior employment as a security guard and current
    
    military service "somehow indicat[ed] . . . defendant should have
    
    known about the restrictions of New Jersey's gun laws," the court
    
    explained:
    
              This statement, in addition to having no basis
              in the record, demonstrates a complete
              inability or unwillingness to consider this
              case in light of the Attorney General's
              September 24, 2014 memorandum.       The very
              thrust of that memorandum is that cases, such
              as this one, which primarily arise due to an
              out-of-state defendant's lack of familiarity
              with the strictures of New Jersey's gun laws,
              should be fairly considered for PTI as they
              fall outside the "heartland" of cases that are
              subject to the Graves Act. To state that being
              employed as a security guard in Florida or as
              an Army Reservist based in Florida somehow
              causes one to be charged with special
              knowledge of New Jersey's gun laws is
              inexplicable and in no way represents a
    
    
                                   15                          A-0611-15T3
                  logical and considered analysis                      of     this
                  defendant's PTI application.
    
          Similarly,       the    court      noted      that    when        discussing      "the
    
    assaultive      or    violent      nature     of    the     crime,"       the    assistant
    
    prosecutor "again makes assumptions that are prejudicial to the
    
    defendant and, more importantly, not supported by any evidence."
    
    The   court    continued:         "[t]he    State    simply        contends      that   the
    
    defendant consciously loaded his gun for the purpose of going to
    
    New   York    to     seek   out    his   rival     for     the    affections      of    [his
    
    girlfriend]. The State characterizes the defendant and his conduct
    
    as    'obvious[ly]          jealous,       obsessive,            [and]     vindictive.'"
    
    (Alterations in original).               The court determined "[t]he facts do
    
    not in any way provide any support for these assertions."
    
          After     pointing      out     other      assertions        by     the    assistant
    
    prosecutor that the court found unsupported by the record, the
    
    trial court stated:
    
                       This lack of thoughtful and reasoned
                  consideration throughout the prosecutor's
                  rejection letter amounts to a patent and gross
                  abuse of discretion. Even after a remand by
                  the court, the State has only set forth
                  conclusions and assertions unsupported by the
                  record.   Even the initial program rejection
                  did not attribute any of the nefarious conduct
                  or motive to the defendant that appears for
                  the first time in the rejection letter. The
                  program describes [defendant] as a "family-
                  oriented individual who has led a law abiding
                  life for a substantial period of time."
                  Without any seeming basis in fact, the State
    
                                                16                                     A-0611-15T3
                seeks to paint a far more sinister portrait
                to justify its rejection of this defendant for
                PTI.
    
         The court opined "defendant and the facts of this case fit
    
    squarely    into   the   four   corners    of   [the   Attorney   General's
    
    Clarification]."     The court found defendant to be a law abiding
    
    citizen of Florida who stopped while driving through New Jersey
    
    to rest and get needed sleep, and defendant's possession of the
    
    handgun and ammunition were lawful in his home state.             The court
    
    noted the letter from the person who gave defendant the gun as a
    
    gift.   The court also noted defendant's "text messages at the time
    
    of his arrest clearly demonstrated . . . he had no idea that his
    
    possession was unlawful in New Jersey."          The court explained that
    
    while stopping in a parking lot "was not as fleeting a contact as
    
    merely transiting the [S]tate on an interstate highway, it was no
    
    greater contact than stopping at a Turnpike rest area while passing
    
    through."    According to the court, the gun "was always in the
    
    glove compartment in a holster.          There is no indication that the
    
    defendant ever planned to remove the gun from the holster or the
    
    glove compartment.       This offense was aberrational and isolated."
    
         Explaining it was "undisputed that the defendant was in fact
    
    a productive and law abiding member of society, serving his country
    
    in a commendable manner," the court concluded:
    
    
    
                                        17                              A-0611-15T3
                 If the case at bar is not the case contemplated
                 for PTI enrollment both with an appropriate
                 weighing of the statutory factors, so as not
                 to engage in a patent and gross abuse of
                 discretion, and under the special factors set
                 forth     in     the      Attorney    General's
                 [Clarification],     then    it  is   virtually
                 impossible to contemplate what set of facts
                 would constitute an appropriate case for
                 enrollment.
    
         We agree with the trial court that the assistant prosecutor's
    
    determination      was   based   in    large    part   on     inappropriate    and
    
    speculative       factors.       For    example,       one    of    the   primary
    
    considerations for the assistant prosecutor's refusal to admit
    
    defendant into PTI was that he deliberately loaded his gun and
    
    ammunition into his glove compartment before leaving Florida,
    
    after having recently made threats against the other man his
    
    girlfriend had seen.         As the trial court correctly pointed out,
    
    there   is   no   factual    evidence    in    the   record    to   support   this
    
    speculation.      Rather, the evidence established defendant was given
    
    the gun as a gift and that it was legal in Florida to carry a gun
    
    and ammunition in a glove compartment.2
    
         Equally speculative is the assistant prosecutor's statement
    
    that defendant's previous employment as a security guard and
    
    current military service somehow make him knowledgeable about gun
    
    
    2
       The assistant prosecutor conceded these facts in her second
    letter denying defendant's admission into PTI. The State has not
    cited any Florida precedent to the contrary.
    
                                            18                                A-0611-15T3
    laws in New Jersey and, by extension, knowledgeable about the gun
    
    laws in every state.      The assistant prosecutor cited no employment
    
    regulations or manuals, or military regulations or manuals, from
    
    which defendant should have derived such knowledge.
    
           The assistant prosecutor's third thematic assumption – that
    
    defendant's       nervousness   and   shaking      hands   constitute        strong
    
    evidence    that    he   knew   possession    of    the    gun   in   his     glove
    
    compartment was illegal – is also suspect. According to the police
    
    report, which is part of the appellate record, defendant was a
    
    twenty-five year old African American at the time of his arrest.
    
    One could just as readily speculate that when confronted by police
    
    in a faraway state, for doing nothing more than apparently sleeping
    
    in a parking lot, a young black man might become nervous.                        His
    
    hands might even shake.
    
           These were not the only instances of unfounded suppositions
    
    made   by   the    assistant    prosecutor.        Other   statements       by   the
    
    assistant prosecutor also raise concerns about whether she fairly
    
    considered placing defendant into PTI.             For example, on page four
    
    of her letter, after asserting defendant posted a retaliatory
    
    "something" on Facebook and his girlfriend thereafter refused to
    
    give him her address, the assistant prosecutor stated defendant
    
    "loaded his gun, took along extra ammo, a collapsible baton and
    
    knife and left Florida to go to New York via other states as well
    
                                          19                                    A-0611-15T3
    as New Jersey."    After reiterating defendant drove through "the
    
    remaining states" with his loaded gun not knowing where his
    
    girlfriend lived, and then parked for eight hours in a shopping
    
    center in New Jersey, the assistant prosecutor stated: "Not only
    
    does this indicate an existence of a personal problem, but a
    
    certain character trait that relates to his ego and need to carry
    
    weapons which were presumably for a pure social visit . . . which
    
    he refused to believe or accept . . . was cancelled." The assistant
    
    prosecutor has cited no authority for the psychology underlying
    
    her assertions about character trait, ego and the need to carry
    
    weapons.
    
         In any event, it is readily apparent the assistant prosecutor
    
    made a decision "based upon a consideration of irrelevant or
    
    inappropriate factors," Wallace, supra, 146 N.J. at 583, thus
    
    calling into serious question whether defendant received "full and
    
    fair consideration of his application."   N.J.S.A. 2C:43-12(f).    We
    
    therefore conclude the assistant prosecutor abused her discretion
    
    with respect to the reasons she cited in her decision.
    
         Having said that, we disagree with the trial court that the
    
    prosecutor's abuse of discretion was patent and gross, or that the
    
    remedy must be admission into PTI.   We reach this conclusion for
    
    several reasons.   First and foremost, defendant was charged with
    
    a second-degree offense and was presumptively ineligible for PTI.
    
                                   20                           A-0611-15T3
    Defendant was thus required to demonstrate compelling reasons to
    
    overcome the presumption.   In addition, there are many factors in
    
    this case that, when objectively weighed and balanced, could tip
    
    the scale in either direction. For example, in evaluating whether,
    
    under the Attorney General's Clarification, there was minimal
    
    exposure of the firearm to persons in New Jersey, the evidence
    
    appears to indicate defendant kept the gun and ammunition in his
    
    vehicle at all times and did not carry the gun on his person
    
    outside the vehicle.   Moreover, defendant's travel in New Jersey
    
    was transitory, although he admittedly did stop to sleep.
    
         On the other hand, the handgun was loaded and defendant kept
    
    it in the glove compartment rather than in the trunk.   Defendant's
    
    failure to explain why the loaded gun and extra ammunition were
    
    in the glove compartment may be a legitimate consideration against
    
    his PTI admission.
    
         In short, unlike the trial court, we are unable to conclude
    
    on this record whether a full and fair consideration of defendant's
    
    PTI application – which presupposes the absence of speculation or
    
    consideration of inappropriate factors – will result in the denial
    
    of defendant's admission into PTI.      More importantly, when a
    
    prosecutor has considered inappropriate factors, calling into
    
    question whether defendant received full and fair consideration,
    
    "[a] remand to the prosecutor affords an opportunity to apply the
    
                                    21                          A-0611-15T3
    standards   set   forth   by   the    court    without   supplanting   the
    
    prosecutor's primacy in determining whether [Pretial Intervention]
    
    is appropriate in individual cases."         K.S., supra, 220 N.J. at 190
    
    (alteration in original) (citation omitted).
    
         For the foregoing reasons, we reverse the trial court's order
    
    admitting defendant into PTI.             We remand this matter to the
    
    prosecutor who shall afford defendant the opportunity to submit
    
    current evidence in support of his PTI application.          If defendant
    
    is aggrieved by the prosecutor's decision, he may seek the relief
    
    from the trial court provided by the applicable statute and court
    
    rules.   We intimate no views on the appropriate outcome which will
    
    be based on an updated and fuller record and which must adhere to
    
    the proper legal criteria as outlined in this opinion.
    
         Reverse and remanded.     We do not retain jurisdiction.
    
    
    
    
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