STATE OF NEW JERSEY VS. ANTHONAY C. MCIVER (18-09-0819, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0699-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONAY C. MCIVER a/k/a

ANTHONAY MCIVEE BUBBA,

ANTHONAY MCIVER, and

ANTHONAY CHARISH MCIVER,

Defendant-Appellant.

______________________________

Submitted April 20, 2021 – Decided May 11, 2021

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law

Division, Cumberland County, Indictment No. 18-09-

0819.

Joseph E. Krakora, Public Defender, attorney for

appellant (Daniel S. Rockoff, Assistant Deputy Public

Defender, of counsel and on the brief).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent (Andre R. Araujo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthonay C. McIver, who pleaded guilty to one count of third-

degree forgery, N.J.S.A. 2C:21-1(a)(1), appeals an order denying her motion for

entry into the pre-trial intervention program. Because the prosecutor improperly

considered inapplicable factors in rejecting defendant's PTI application, we

reverse and remand to the prosecutor for reconsideration of defendant's

eligibility for PTI.

At the age of nineteen, defendant was arrested after a bank had accused

her of attempting to deposit a fraudulent check. She later admitted she had used

without permission her mother's checkbook from a closed account, forged her

mother's name on checks, deposited the checks with the intent to defraud the

bank, and withdrew from the bank approximately $25,000. She was able to

withdraw the funds because the bank made them available for withdrawal soon

after deposit before the checks had cleared. In reality, the funds were never

transferred to defendant's account because her mother's account had been closed.

After a grand jury returned a twenty-count indictment charging defendant

with third-degree forgery, N.J.S.A. 2C:21-1(a)(1); third-degree uttering,

N.J.S.A. 2C:21-1(a)(3); third-degree theft, N.J.S.A. 2C:20-3(a); and third-

degree attempt at theft, forgery, and uttering, N.J.S.A. 2C:5-1(a)(1), defendant

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applied for PTI. Citing PTI guidelines 1 1(b) through 1(e) and 3(i)(4), the

criminal division manager rejected the application because admitting defendant

into PTI, which the manager described as a "rehabilitative model for victimless

crimes," would "deprecate the seriousness of [defendant's] crime." Pointing out

defendant had used her mother's checkbook to deposit $77,961.90 in fraudulent

checks, had victimized her mother and the bank by withdrawing $25,376, and

was attempting to deposit another fraudulent check in the amount of $20,300

when she was arrested, the manager concluded defendant's pattern of criminal

behavior would have continued "for an unknown amount of time" had she not

been caught. Because of the amount of the deposits and withdrawals, the

manager found not credible defendant's assertion she had stolen the money

because she and her boyfriend were struggling financially to pay their bills. The

manager recognized defendant's criminal history included an additional arrest

but no convictions.

Defendant subsequently pleaded guilty to one count of third-degree

forgery, N.J.S.A 2C:21-1(a)(1). As part of the negotiated plea, she agreed to

1

As explained in State v. Johnson, 238 N.J. 119, 128 (2019), assessment of a

defendant's suitability for PTI used to be conducted under "Guidelines" provided

in Rule 3:28 with consideration of factors in N.J.S.A. 2C:43-12(e). Rule 3:28

was amended and those guidelines were eliminated effective July 1, 2018,

months before the December 17, 2018 denial of defendant's application.

3 A-0699-19

pay restitution of no more than $25,000 and represented she had the ability to

pay that amount over time.

After the plea, defense counsel submitted to the prosecutor a letter

regarding defendant's "compelling reasons" for admission into PTI, referencing

a purportedly similar application, which had been granted. In response, the

prosecutor initially asked what "substantial and meaningful step" defendant was

"willing to make towards restitution." The prosecutor ultimately rejected

defendant's application as untimely given she already had pleaded guilty.

Defendant moved to compel PTI admission. The State opposed the

motion, arguing in part defendant's application was untimely. The State also

argued defendant's admission was properly denied considering the nature of the

offense, the facts of the case, the "extent to which [her] crime constitute[d] part

of a continuing pattern of anti-social behavior"; defendant's "record of criminal

and penal violations and the extent to which [she] may present a substantial

danger to others"; and the "value of supervisory treatment would be outweighed

by the public need for prosecution" given the nature of the crime. See N.J.S.A.

2C: 43-12(e)(1), (2), (8), (9), and (14). In its opposition brief, to support its

assertion defendant's history reflected a pattern of anti-social behavior and

inability to comply with the law, the State disclosed facts regarding the prior

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arrest referenced by the criminal division manager: defendant had been arrested

on similar charges for stealing approximately $1100 from her grandmother.

According to the State, the charges were dismissed because her grandmother did

not wish to proceed. The State also faulted defendant for refusing to pay

restitution to a presumably insured bank. 2

The court placed on the record its decision on defendant's motion and

sentenced her on the same day. Before the court rendered its decision on her

motion, the prosecutor advised the court the State was not seeking restitution as

part of the sentence. 3 The court nevertheless noted in its decision defendant's

argument she should not have to pay restitution based on her assumption the

bank had insurance. The court found the application was untimely but did not

deny defendant's motion for that reason. The court denied defendant's motion

based on its conclusion defendant had failed to establish clearly and

2

The State apparently made that assertion based on defendant's initial rejection

of a proposed plea offer that included restitution. Defendant ultimately agreed

as part of her plea to pay up to $25,000 over time in restitution. Defense counsel

at sentencing denied the prosecutor's assertion defendant had refused to pay

restitution because the bank was insured and clarified he "just wanted to

ascertain whether or not the bank or the victim was seeking restitution."

3

The court later explained the bank was not seeking restitution through the

criminal process but likely had sold the "bad debt" to a collection agency, which

might "be coming after her civilly in order to get the money back."

5 A-0699-19

convincingly the PTI denial was "a patent and gross abuse of discretion." The

court found defendant's actions were "not a one-time event," taking place over

several months, and were "done on purpose." Noting defendant's crime was not

"a minor shoplifting offense," the court cited to the "big amount of money"

involved. The court sentenced her to a three-year probation period.

On appeal, defendant argues the court erred in denying her motion because

the prosecutor improperly had considered a dismissed adult charge, citing State

v. K.S., 220 N.J. 190 (2015); referenced the presumption against admission into

PTI for people who commit a "breach of the public trust" when defendant's crime

did not qualify as a public-trust offense, citing Rule 3:28-4(b)(1)(iv); and treated

a substantial up-front payment as a precondition to PTI admission, citing Rule

3:28-5(d). In response, the State argues the prosecutor correctly rejected

defendant's application as untimely 4 and properly considered the factors of

N.J.S.A. 2C:43-12(e). The State contends the prosecutor's reference to a

dismissed charge was not an improper inference of guilt but instead was a

"consideration of defendant as a whole . . . reveal[ing] an individual who will

4

We do not address this timeliness argument except to note the court expressly

stated it was not denying defendant's motion due to the untimeliness of her

application. The court stated it did not find "it would be one of those rules where

you can't bend it a little bit in the interest of justice" and chose to decide the

motion on "the merits."

6 A-0699-19

not be deterred from future criminal conduct." The State again faults defendant

for refusing to pay restitution.

PTI "is an alternative procedure to the traditional process of prosecuting

criminal defendants." State v. Leonardis, 71 N.J. 85, 89 (1976). It provides

prosecutors with another way of resolving charges against qualified defendants

while still meeting the goals of our criminal justice system. RSI Bank v.

Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 (2018). It enables qualified

defendants "to avoid a trial and the stigma accompanying a verdict of guilt to

any criminal offense." State v. Bell, 217 N.J. 336, 347 (2014).

In determining whether a defendant should be diverted into PTI, a

prosecutor must make an "individualized assessment of the defendant," State v.

Roseman, 221 N.J. 611, 621-22 (2015), considering the defendant's "amenability

to correction" and potential "responsiveness to rehabilitation," N.J.S.A. 2C:43-

12(b). See also State v. Watkins, 193 N.J. 507, 520 (2008). In making that

assessment, prosecutors are required to consider the seventeen non-exclusive

factors listed in N.J.S.A. 2C:43-12(e). State v. Lee, 437 N.J. Super. 555, 562

(App. Div. 2014). The weight given to the various factors is left to the

prosecutor's discretion. State v. Wallace, 146 N.J. 576, 585-86 (1996). The

decision to divert a defendant into PTI "is a quintessentially prosecutorial

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function." Id. at 582. Accordingly, courts give prosecutors "broad discretion"

in making that determination. K.S., 220 N.J. at 199.

That discretion, however, "is not unbridled." Wallace, 146 N.J. at 582. A

court may overturn a prosecutor's denial of a PTI application if a defendant

establishes clearly and convincingly the denial was "a patent and gross abuse"

of prosecutorial discretion. Watkins, 193 N.J. at 520. A defendant meets that

standard by proving 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.

Bender, 80 N.J. 84, 93 (1979); see also Lee, 437 N.J. Super. at 563; State v.

Maguire, 168 N.J. Super. 109, 115 n.1 (App. Div. 1979) (finding abuse of

discretion occurs when a decision "has gone so wide of the mark sought to be

accomplished by PTI that fundamental fairness and justice require judicial

intervention").

Given the amount of prosecutorial discretion involved, our "scope of

review is severely limited." State v. Negran, 178 N.J. 73, 82 (2003). But when

"the prosecutor has made a legal error, there is a relatively low threshold for

judicial intervention because '[t]hese instances raise issues akin to questions of

law, concerning which courts should exercise independent judgment in fulfilling

8 A-0699-19

their responsibility to maintain the integrity and proper functioning of PTI as a

whole.'" Watkins, 193 N.J. at 520-21 (quoting State v. Dalglish, 86 N.J. 503,

510 (1981)); see also State v. Maddocks, 80 N.J. 98, 104 (1979) (finding

"[i]ssues concerning the propriety of the prosecutor's consideration of a

particular [PTI] factor are akin to 'questions of law'"). "Remand is the proper

remedy when, for example, the prosecutor considers inappropriate factors, or

fails to consider relevant factors." K.S., 220 N.J. at 200; see also State v.

Johnson, 238 N.J. 119, 129 (2019) (remand to the prosecutor "may be

appropriate so she or he may rightly reconsider the application").

In K.S., our Supreme Court directly addressed the issue of whether a

prosecutor can rely on dismissed adult criminal charges in denying a PTI

application. Id. at 193. The Court held "[f]or the prior dismissed charges to be

considered properly by a prosecutor in connection with an application, the

reason for consideration must be supported by undisputed facts of record or facts

found at a hearing" and "when no such undisputed facts exist or findings are

made, prior dismissed charges may not be considered for any purpose." Id. at

199. In K.S., the PTI director concluded the defendant's arrest history evidenced

"a pattern of anti-social behavior," and the prosecutor stated the defendant's

criminal history suggested the current offense was "'part of a continuing pattern

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of anti-social behavior.'" Id. at 200. The Court found because the defendant's

prior charges had been dismissed, he had no record of criminal violations and

noted the record did not contain any admissions made by the defendant in the

dismissed matters. Id. at 202. The Court concluded: "[u]se of prior dismissed

charges alone as evidence of a history of and propensity for violence or a pattern

of anti-social behavior, where defendant's culpability or other facts germane to

admission into [PTI] have not been established in some way, constitutes an

impermissible inference of guilt." Ibid.

In State v. Waters, 439 N.J. Super. 215, 235 (App. Div. 2015), we

considered a trial court's decision overturning a PTI denial in part due to a

purported improper consideration of prior dismissed charges. We reversed the

trial court's decision in part because the prosecutor had denied relying on the

prior charges, even though the designated PTI director had. Ibid. We have

nearly the opposite situation here. In her rejection letter, the criminal division

manager referenced defendant's prior arrest, did not provide any details about it

other than acknowledging it did not result in a conviction, and stated her

rejection was based on "deprecation concerns." Instead of denying reliance on

the prior dismissed charge, like the prosecutor in Waters, this prosecutor

established reliance. In its brief in opposition to defendant's motion, the State

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listed the N.J.S.A. 2C:43-12(e) factors supporting the PTI denial, including

"[t]he extent to which the applicant's crime constitutes part of a continuing

pattern of anti-social behavior," N.J.S.A 2C:43-12(e)(8), and "[t]he applicant's

record of criminal and penal violations and the extent to which he may present

a substantial dangers to others," N.J.S.A. 2C:43-12(e)(9). The State then

disclosed the details about the prior dismissed charge, apparently with no

documentary support in the record, arguing it demonstrated "a pattern of anti-

social behavior and an inability to comply with the law" and "ongoing criminal

conduct."

The State on appeal denies the invocation of defendant's prior dismissed

charge was an improper attempt to "infer guilt," K.S., 220 N.J. at 199, and

characterizes it as "a consideration of the defendant as a whole." That argument

is not persuasive because it is not supported by the record – the clear purpose of

detailing defendant's prior dismissed charge was to infer guilt – and is contrary

to the K.S. Court's express prohibition of the consideration of prior dismissed

charges, when not otherwise supported, "for any purpose." Ibid. The

prosecutor's consideration of this inappropriate factor constitutes a gross and

patent abuse of the prosecutor's discretion and merits reversal and remand to the

prosecutor.

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In the letter rejecting defendant's application for PTI, the criminal division

manager identified Guideline 3(i)(4), which already had been repealed, as a

reason for the rejection, stating defendant's admission "would deprecate the

seriousness of the crime." Repealed Guideline 3(i)(4) made no reference to

deprecation; it provided the PTI application procedure for defendants charged

with the types of crime requiring the prosecutor, pursuant to repealed Guideline

3(i), to consider "the nature of the offense" in reviewing the application.

Repealed Guideline 3(i)(1)(c) created a presumption of PTI rejection when the

defendant's crime was "a breach of the public trust where admission to a PTI

program would deprecate the seriousness of defendant's crime." When the

manager issued the rejection letter, the public-trust presumption was set forth in

Rule 3:28-4(b)(1)(iv).

"A breach of the public trust occurs when a governmental agency or

officer, vested with the public trust, causes harm to the public by breaching its

trust." State v. Denman, 449 N.J. Super. 369, 378 (App. Div. 2017). To be

found in breach of the public trust, the defendant "must owe some sort of

fiduciary duty directly to the public at large in order to breach the public trust."

Ibid. In Denman, we found the prosecutor had erred in applying the public-trust

presumption to the defendant and the imposition on defendant of the Guideline

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3(i)(4) procedures constituted "a gross and patent abuse of the prosecutor's

discretion." Id. at 379. We similarly find here the application of the public-

trust presumption on defendant, to whom it clearly did not apply, to be a gross

and patent abuse of the prosecutor's discretion.

The last issue on appeal – whether and in what way the prosecutor

considered restitution in the denial of defendant's application – is rendered moot

by our remand based on the first two bases of appeal and the State's decision not

to seek restitution. Defendant premises her argument on this issue on the

prosecutor's email responding to defense counsel's "compelling reasons" letter

and the State's brief in opposition to her motion, both of which were submitted

before the State advised the court of its decision not to seek restitution. Because

restitution is no longer an issue in this case and given our remand, we see no

reason why it should be considered in determining defendant's eligibility for

admission to PTI.

Reversed and remanded to the prosecutor for reconsideration of

defendant's eligibility for PTI. We do not retain jurisdiction.

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