State of New Jersey v. Jessica N. Yannacone

NOT FOR PUBLICATION WITHOUT THE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-1975-24

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JESSICA N. YANNACONE,

Defendant-Respondent.

_________________________

Submitted September 10, 2025 – Decided September 23, 2025

Before Judges Mayer and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Indictment Nos. 23-08-1492

and 23-11-2014.

Bradley D. Billhimer, Ocean County Prosecutor,

attorney for appellant (Samuel Marzarella, Chief

Appellate Attorney, of counsel; William Kyle Meighan,

Supervising Assistant Prosecutor, on the brief).

Jennifer N. Sellitti, Public Defender, attorney for

respondent (Nadine Kronis, Assistant Deputy Public

Defender, of counsel and on the brief).

PER CURIAM

The State appeals from an order directing defendant Jessica N.

Yannacone's admittance into the Pretrial Intervention Program (PTI) over the

Ocean County Prosecutor's (the prosecutor) objection. Based on our de novo

review, we vacate the trial court's order and remand for further proceedings.

I.

We glean the salient facts from the motion record. During the early

afternoon of October 23, 2022, defendant drove into the rear of a stopped

vehicle, causing the passenger of the other vehicle to sustain a concussion and

other injuries. Defendant spoke slowly, slurred her words, and appeared

disoriented and confused at the scene. Officers administered a field sobriety test

and, based on the results, arrested defendant for driving while intoxicated

(DWI). The responding officers seized a prescription bottle of Clonazepam

from defendant's purse and smelled alcohol on her breath while at police

headquarters.

Defendant was charged with assault by auto, N.J.S.A. 2C:12-1(c)(2);

DWI, N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.2;

reckless driving, N.J.S.A. 39:4-96; following too closely, N.J.S.A. 39:4-89; and

failure to carry motor vehicle insurance, N.J.S.A. 39:6B-2. A grand jury

indicted defendant with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2).

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A few months later, when defendant was again stopped by the police, she

spoke rapidly to the officer about irrelevant topics and appeared nervous. A K-

9 unit conducted an exterior sniff test of the vehicle which led to recovery of a

glass pipe containing burnt residue and a small bag containing a hard rock-like

substance, later found to be methamphetamine. Defendant was arrested and

issued summonses for possession of controlled dangerous substance (CDS),

including cocaine, amphetamine, clonazepam and related paraphernalia, along

with failing to maintain headlights on her motor vehicle. A grand jury indicted

defendant, charging her with third-degree CDS possession, N.J.S.A. 2C:35-

10(a)(1).

The next month, defendant was again arrested and charged with

possession of CDS and related paraphernalia. Later in 2023 and during 2024,

defendant was charged with additional crimes including simple assault,

disorderly conduct, hindering, criminal mischief, and resisting arrest as a result

of subsequent incidences.

Defendant participated in substance abuse treatment at four facilities

during the span of 2021 to 2024: Revelare Recovery, Pyramid, New Hope and

Taylor Care at Tuckerton for Mental Health and Substance Abuse. While

defendant asserted she complied with her treatment at Pyramid and New Hope,

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she admitted that "she became homeless and was not able to continue her

treatment" at Tuckerton. She was also enrolled in a long-term treatment

program at Revalare, but claimed she was forced to discontinue treatment due

to insurance-related issues.

On November 14, 2024, defendant applied for PTI. About two weeks

later, defendant was enrolled in the Support Team for Additional Recovery

(STAR) program.1

Although defendant's charges were deemed ineligible for mandatory

recovery court, an Ocean County probation officer "guardedly recommended

[defendant] to the PTI program" after reviewing defendant's past treatment and

numerous contacts with the court system. In addition to the pending charges,

defendant had been convicted of two prior DWIs—one in December 2019 and

the other in March 2018.

In a January 17, 2025 letter, the prosecutor denied defendant's application

for PTI after analyzing each of the seventeen statutory factors set forth in

N.J.S.A. 2C:43-12(e). The prosecutor found only three of the seventeen factors

1

According to the record, the STAR program "provides case management and

recovery support services for individuals struggling with an opioid and/or

stimulant use disorder."

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supported defendant's admission into PTI but declined to give them "heavy

weight." Conversely, the prosecutor found eleven of the seventeen factors

"weigh[ed] against . . . defendant's admission into PTI," while three of the

statutory factors were inapplicable.

In considering the facts and nature of defendant's offenses under N.J.S.A.

2C:43-12(e)(1) and (2), the prosecutor found defendant's characteristics and

substance abuse issues were not unique and did not warrant PTI. The prosecutor

further stated:

[T]he [d]efendant is charged with not just one set of

offenses on a single offense date, but rather is facing a

number of charges from three separate incident dates.

The purpose of PTI is to allow a defendant an alternate

avenue to the ordinary course of prosecution, and to

allow an otherwise law-abiding individual, the

opportunity to avoid a criminal conviction. This

[d]efendant, however, has already demonstrated a

disregard for the laws of this state on not just one or

two occasions, but three occasions.

As to N.J.S.A. 2C:43-12(e)(3), defendant's motivation and age, the

prosecutor outlined defendant's prior arrests and charges alongside her history

of substance abuse treatment, and explained this factor was given "light weight

. . . due to [defendant's] past poor performance when . . . engaging in treatment

and remaining offense free and sober."

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The prosecutor considered N.J.S.A. 2C:43-12(e)(4), the desire of the

victim to forego prosecution, and found the victim's opposition to defendant's

participation in PTI weighed against granting the application. The prosecutor

relied on the victim's "belie[f] [defendant] should be held accountable for

[consuming] illicit substances and subsequently operating a motor vehicle which

resulted in the collision." The passenger's victim impact statement also asserted

defendant was "careless and unapologetic."

In considering N.J.S.A. 2C:43-12(e)(5), defendant's problems and

character relating to the underlying crime, the prosecutor concluded the charges

stemmed from substance abuse issues. The prosecutor stated "there are services

available through the criminal justice system which may be just as effective, if

not more effective, than PTI," and observed "it would appear defendant would

benefit from some type of court ordered treatment or substance abuse

counseling," which may be obtained through ordinary probation. The prosecutor

took the position that probation would benefit defendant because it is "more

stringent" than PTI. Since this was not defendant's first DWI, the prosecutor

concluded proper supervision during probation would prevent future criminal

behavior and weighed this factor against granting defendant's PTI application.

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As to N.J.S.A. 2C:43-12(e)(6), the likelihood that defendant's crime is

related to a condition that would be conducive to change through supervisory

treatment, the prosecutor found:

[the likelihood defendant's crime] is related to a

condition or situation that would be conducive to

change through [her] participation in supervisory

treatment . . . weighed slightly in favor of [defendant's]

admission into PTI, merely [because] . . . some form of

supervision could be conducive to changing

[defendant's] behavior in the future.

The prosecutor found that "it is unclear why the PTI program form of

supervision would be any more effective or conducive to change than a standard

probationary form of supervision." The prosecutor did not reference defendant's

participation in the STAR program or consider the substance abuse treatment

she was receiving at Pyramid, along with other rehabilitative efforts made by

defendant.

The prosecutor found N.J.S.A. 2C:43-12(e)(7), the needs and interests of

the victim and society, weighed against defendant's application. The prosecutor

reasoned society has an interest against individuals driving while intoxicated,

citing once again to defendant's offense and arrest history, along with the

victim's position.

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As to N.J.S.A. 2C:43-12(e)(12), history of use of physical violence

towards others, the prosecutor determined this factor supported defendant's

admission into PTI because the record did not establish any history of physical

violence. Finally, the prosecutor found N.J.S.A. 2C:43-12(e)(13), (15) and (16)

"to be inapplicable to this case, as there are no co-defendants and this is not a

situation involving organized criminal activity."

Defendant appealed the prosecutor's denial to the Law Division. During

oral argument, defense counsel clarified defendant "ha[d] been [enrolled] in the

STAR program" since November 27, 2024, and was living at an inpatient

substance abuse treatment facility since February 11, 2025. Defense counsel

explained defendant would be there "until May 10th [at] minimum."

The prosecutor observed that, although defendant had no prior indictable

convictions, she had subsequently served at least one jail sentence for a

municipal court conviction. The prosecutor again argued that "in this situation

an individual with two open files and a DWI related to one of those cases,

notably not her first [DWI], is not an individual where PTI is appropriate."

The trial court concluded the prosecutor's denial constituted a gross and

patent abuse of discretion, finding certain conclusions in the January 17, 2025

letter "were in direct contrast to conclusions" articulated on the State's behalf

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during the hearing. The trial court highlighted the inconsistencies by explaining

that in its brief the prosecutor "indicate[s] that [defendant] has not demonstrated

any real motivation to support her involvement in PTI" but, in the January 17,

2025 letter, the prosecutor gave "light weight . . . due to defendant's poor

performance." The trial court also found defendant availed herself of services

while incarcerated and was currently attending a substance abuse program.

The trial court also found the "inapplicable" factors weighed in favor of

granting PTI, concluding that there was no published case law to guide its

determination otherwise. The trial court found further:

[W]hile a disagreement in the application of the factors

would not rise to the level of finding a patent and gross

abuse of discretion, I do find that this is more than a

simple disagreement in the analysis of the factors.

Again, I believe that there are contradictions within the

State's own analysis. I . . . believe that the State has by

clear and convincing evidence made a clear gross and

patent abuse of discretion in denying this defendant into

PTI.

And again, I go back to what I laid out on the

record and, specifically, with regard to the motivation

of this defendant, the fact that PTI and substance abuse

treatment is court ordered and that there are

consequences, and there is nothing to indicate that the

PTI could not deter this defendant from violating the

law. I also believe that the PTI—if the . . . victim is

looking for accountability, that PTI does hold

defendant accountable and again there could and most

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likely would be a [DWI] plea which would certainly

also cause accountability.

The trial court granted defendant's application, ordering her admission to

PTI for a three-year period conditioned on defendant entering a guilty plea to

the DWI charge, engaging in substance abuse and mental health treatment,

submitting to drug and alcohol testing, paying the victim $500 restitution and

remitting all applicable fines and fees.

This appeal followed. On appeal, the State argues the trial court imposed

its own discretionary finding that PTI would serve as a suitable deterrent to

future conduct, contrary to the prosecutor's rejection, and failed to give due

consideration to the victim's objection to defendant's admission into PTI. The

State also maintains that, because defendant failed treatment on her own,

displayed a continuing pattern of anti-social behavior, and has a history of DWI

offenses, PTI is inappropriate and defendant should receive treatment through

ordinary probation.

II.

A.

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

to avoid criminal prosecution by receiving early rehabilitative services expected

to deter future criminal behavior." State v. Johnson, 238 N.J. 119, 127 (2019)

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(quoting State v. Roseman, 221 N.J. 611, 621 (2015) (internal quotations

omitted)). The "primary goal" of PTI is the "rehabilitation of a person accused

of a criminal offense." State v. Bell, 217 N.J. 336, 346 (2014) (citing State v.

Leonardis, 71 N.J. 85, 94 (1976)). "It is designed 'to assist in the rehabilitation

of worthy defendants, and, in the process, to spare them the rigors of the criminal

justice system.'" State v. Randall, 414 N.J. Super. 414, 419 (App. Div. 2010)

(quoting State v. Watkins, 193 N.J. 507, 513 (2008)).

Deciding whether to permit a defendant to divert to PTI "is a

quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582

(1996), for which a prosecutor is "afford[ed] . . . broad discretion." State v.

E.R., 471 N.J. Super. 234, 245 (App. Div. 2022) (quoting State v. K.S., 220 N.J.

190, 199 (2015)). It is the "fundamental responsibility" of the prosecutor to

decide whom to prosecute, Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993),

and, therefore, prosecutors have wide latitude in PTI determinations. See

Wallace, 146 N.J. at 582; State v. Nwobu, 139 N.J. 236, 246 (1995).

However, a prosecutor's discretion is not unbridled. In determining a

defendant's eligibility for PTI, a prosecutor must make an "individualized

assessment of the defendant." Roseman, 221 N.J. at 621-22; see also N.J.S.A.

2C:43-14. The Court has consistently rejected categorical prohibitions against

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admission to PTI based on the offense charged. See State v. Caliguri, 158 N.J.

28, 39 (1999). "PTI eligibility has been broadly defined, subject to specified

exclusions, to 'include[] all defendants who demonstrate the will to effect

necessary behavioral change such that society can have confidence that they will

not engage in future criminality.'" State v. Gomes, 253 N.J. 6, 17 (2023)

(quoting Watkins, 193 N.J. at 513). Thus, "PTI decisions are 'primarily

individualistic in nature' and a prosecutor must consider an individual

defendant's features that bear on [their] amenability to rehabilitation." State v.

Nwobu, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).

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

to recommend someone for PTI." Gomes, 253 N.J. at 17. However, the

following non-exhaustive list of seventeen factors a prosecutor must consider is

contained in N.J.S.A. 2C:43-12(e):

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego

prosecution;

(5) The existence of personal problems and character

traits which may be related to the applicant's crime and

for which services are unavailable within the criminal

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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;

(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;

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(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.

After a prosecutor evaluates the seventeen individual factors listed in

N.J.S.A. 2C:43-12(e), "[t]he nature of the offense should be considered in

reviewing the application" and "[i]f the crime was . . . deliberately committed

with violence or threat of violence against another person[,] . . . the defendant's

application should generally be rejected." R. 3:28-4(b)(1).

B.

We review the trial court's determination of an appeal of a prosecutor's

decision to deny a defendant's PTI application de novo. State v. Waters, 439

N.J. Super. 215, 226 (App. Div. 2015); see also K.S., 220 N.J. at 202-203. "A

trial court does not evaluate a PTI application 'as if it [stands] in the shoes of the

prosecutor.'" State v. Hoffman, 399 N.J. Super. 207, 216 (App. Div. 2008)

(quoting Wallace, 146 N.J. at 589). A trial court, in its capacity as reviewer of

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a prosecutor's denial of PTI, "'does not have the authority in PTI matters to

substitute [its own] discretion for that of the prosecutor.'" Waters, 439 N.J.

Super. at 253 (alteration in original) (quoting Nwobu, 139 N.J. at 253).

Indeed, "[a] reviewing court must assume, absent evidence to the contrary,

that the prosecutor's office has considered all relevant factors in reaching the

PTI decision. This presumption makes it very difficult to reverse a prosecutor's

decision on that basis." Nwobu, 139 N.J. at 249 (internal citations omitted). As

a result, a "[d]efendant generally has a heavy burden when seeking to overcome

a prosecutorial denial of [their] admission into PTI." Watkins, 193 N.J. at 520.

Under this statutory and rule-based framework, the scope of a trial court's

review of a prosecutor's PTI denial is severely limited and designed to address

"only the 'most egregious examples of injustice and unfairness.'" State v.

Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384

(1977)). Thus, "[i]n order to overturn a prosecutor's rejection, a defendant must

'clearly and convincingly establish that the [p]rosecutor's decision constitutes a

patent and gross abuse of discretion[,]'" meaning that the decision "has gone so

wide of the mark sought to be accomplished by PTI that fundamental fairness

and justice require judicial intervention." Watkins, 193 N.J. at 520 (quoting

Wallace, 146 N.J. at 582-83). A "patent and gross abuse of discretion," Watkins,

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193 N.J. at 520, is found only where clear and convincing evidence establishes

"that the [PTI] denial '(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.'" State v. E.R., 471 N.J. Super. at

245 (quoting State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014)). The

issue before the trial court is whether the prosecutor's decision could not

reasonably have been made on a weighing of the relevant factors. Nwobu, 139

N.J. at 254 (noting "an error in applying guidelines to the facts of the case must

be 'clearly unreasonable so as to shock the judicial conscience'" to qualify as a

"clear error in judgment") (quoting State v. Roth, 95 N.J. 334, 365 (1984)).

C.

Guided by these principles, we are constrained to vacate the trial court's

order granting defendant's appeal and admitting her into PTI over the

prosecutor's objection, remanding this matter for the prosecutor to consider

defendant's participation in substance abuse programs—both while incarcerated

and afterwards—weighing PTI as opposed to other avenues of rehabilitation,

along with the other statutory factors. Considering the passage of time since the

prosecutor last considered defendant's PTI application, defendant shall be

afforded the opportunity to supply the prosecutor with additional proofs bearing

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on her application, including pertinent information and reports related to her

progress in the STAR and other programs, along with any other proofs now

available on the outcome of previously-pending charges. See State v. Coursey,

445 N.J. Super. 506, 512-13 (App. Div. 2016). The prosecutor shall review the

application anew on the supplemented record.

Here, the prosecutor did not dispute that substance abuse was at the core

of defendant's offenses. However, the prosecutor did not expressly consider that

"following the instant offenses, [defendant] has received substance abuse

treatment services through the STAR program, completed practically every

program available to her in the jail following her arrest on a municipal court

charge, and successfully completed a three-month-long inpatient substance

abuse treatment program." Nor did the prosecutor explain why PTI was not an

adequate avenue for defendant to receive substance abuse treatment, weighing

that factor with the others under N.J.S.A. 2C:43-12(e).

When a prosecutor fails to adequately explain the reasoning for its

assessment of the relevant statutory factors, as it did here, a remand is warranted.

See E.R., 471 N.J. Super. at 237. In E.R., we reviewed whether the prosecutor

properly denied E.R.'s PTI application "based primarily on the belief that

probation could provide a more appropriate level of supervision . . . without

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addressing the type of supervision defendant required or why it couldn't be

afforded her through PTI." Ibid. Although the trial court in E.R. did not

conclude there was an abuse of discretion in denying the defendant's PTI

application, finding the "minimal level of supervision and requirements of the

PTI program . . . [was] not adequate to supervise [E.R.] based upon her needs

and issues," we vacated and remanded for further consideration by the

prosecutor, concluding they "did not explain why the supervisory services

offered through probation were unavailable to [E.R.] if she was admitted into

PTI." Id. at 247.

Similarly, in State v. Fitzsimmons, we remanded for the State to explain

its "concern that the short-term supervision characteristic of PTI admission

would be inadequate to insure defendant's rehabilitation." 286 N.J. Super. 141,

145 (App. Div. 1995). We also directed the prosecutor to reconsider

Fitzsimmons's PTI application and "focus . . . on the issue of whether despite

defendant's remarkable rehabilitation, the countervailing public interest

nevertheless demands prosecution of these . . . offenses." Id. at 146.

Based on our review of the decisional law as applied to the record here ,

we vacate the trial court's February 27, 2025 order and remand the matter for

the prosecutor to review defendant's PTI application anew, consistent with this

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decision, within thirty days. The prosecutor shall submit its reevaluation to the

defendant and the trial court, advising whether it continues its objection to PTI.

The trial court shall conduct further proceedings, if necessary.

To the extent the trial court found the inapplicable factors weighed in

favor of defendant's admission into PTI, our prior decisional law disposes of this

issue. It is well-settled that consideration of irrelevant or inappropriate factors

can formulate the basis for a finding of gross and patent abuse of discretion. See

State v. Bender, 80 N.J. 84, 93 (1979). Thus, the prevailing standard provides

a prosecutor should not weigh inapplicable factors. Accordingly, we decline to

conclude the prosecutor's finding that the inapplicable factors did not weigh

either in favor of granting or denying defendant PTI constituted a patent or gross

abuse of discretion.

Vacated and remanded. We do not retain jurisdiction.

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