The opinion
NOT FOR PUBLICATION WITHOUT THE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-0361-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RUSSELL E. OLEXA,
Defendant-Appellant.
_______________________
Submitted September 19, 2022 – Decided October 3, 2022
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 19-07-1833.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Krysten A. Russell, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Russell E. Olexa appeals from a June 17, 2021 order denying
his motion for admission into a pretrial intervention (PTI) program after the
Camden County Prosecutor's Office (CCPO) rejected his application. We
reverse and remand for further proceedings.
I.
On May 28, 2019, defendant, a Pennsylvania resident, and his friend
participated in target practice in Pennsylvania, where defendant used his Rock
Island .45 handgun, which he transported in a closed firearm case in his
backpack. Defendant did not have a permit to carry his handgun in
Pennsylvania.1 Later that day, defendant and his friend, who was driving,
traveled to New Jersey to visit another individual. Defendant's friend
subsequently decided to drive to Atlantic City, and defendant, realizing he still
had his firearm in his backpack, declined to go. His friend, however, did not
want to take defendant back to Pennsylvania and, therefore, defendant was left
to find his own way home from New Jersey. Defendant tried to find a bus stop,
but because it was dark outside and he did not have a phone to help him navigate,
1
As part of defendant's PTI application, it was originally indicated defendant
had a permit to carry his handgun. However, during oral argument, defendant's
attorney acknowledged this was inaccurate and explained defendant may have
confused his firearm registration as being a permit.
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he decided to rest on what he incorrectly believed were church steps and fell
asleep.
The next morning, police found defendant asleep on the steps of a school
in Winslow Township. One of the officers woke him up and asked, "do you
have anything I need to know about?" Defendant responded "yes," and told the
officers he had a firearm in his backpack. The officers then searched defendant's
backpack and found a carrying case with a loaded handgun.2 The officers
arrested defendant, and he was subsequently indicted for second-degree
unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b)(1).
In March 2021, defendant applied for entry into the PTI program.
Defendant noted he is a decorated Marine veteran and legally owned the firearm.
He further averred he "did not intend to violate the law" and voluntarily
disclosed to police he was in possession of the firearm. Defendant also claimed
he lacked a criminal record. He sought participation in the program so as not to
"tarnish his record."
2
Defendant disputes the firearm was loaded. Additionally, defendant's PTI
application stated that the handgun was in a "closed firearm case," and during
oral argument, his attorney represented that it was in a "locked gun case." These
disputed facts were not considered by the trial court in rendering its decision
and do not impact any issue before this court.
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3
On March 26, 2020, the CCPO denied defendant's PTI application. In so
doing, it noted, under Rule 3:28-1(d), because the charges against defendant
carried a presumption of incarceration and a mandatory minimum period of
parole eligibility, the prosecutor had to consent to consideration of his PTI
application. The CCPO acknowledged defendant's history of military service
and agreed he had lawfully purchased his handgun. However, defendant failed
to provide evidence of a concealed carry permit. The CCPO concluded
defendant did not submit his application in accordance with Rule 3:28-3(b)(1),
because his "statement did not provide the requisite extraordinary and
compelling circumstances, justifying consideration of the application ."3
II.
Defendant filed a motion challenging the CCPO's refusal to consider his
PTI application. He argued the State failed to consider the factors under
N.J.S.A. 2C:43-12(e). Defendant emphasized the underlying offense did not
involve a crime of violence or the threat of violence; he did not have a history
3
The CCPO noted if defendant was able to prove he was lawfully carrying a
"loaded handgun outside of his dwelling, business, or land or premises owned
by him," then it would be "willing to reopen its analysis of whether this
defendant is an appropriate candidate for PTI." As noted above, however,
defendant's counsel conceded defendant did not have a permit to carry in
Pennsylvania.
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4
of violent behavior or a criminal record; he willingly informed the police that
he was in possession of a handgun; and he did not carry the handgun on his
person but in a closed case in his backpack. Defendant stated that he was only
charged because "he did not have a permit to carry [the handgun]." In addition,
defendant argued that "his service to this country" and his "lack of contact with
the criminal justice system" rendered him a "great candidate for this program ."
During oral argument, defendant further requested the court to consider the
factors set forth in the Attorney General's 2014 clarification to the 2008 Attorney
General Directive. 4
The State focused on defendant's failure to meet the criteria set forth in
the 2014 Attorney General Clarification. The State argued the 2014 Attorney
General Clarification applies to out-of-state defendants who can demonstrate the
following: (1) the firearm had been lawfully acquired in another jurisdiction;
(2) the defendant's possession would have been lawful in his own jurisdiction;
and (3) the defendant mistakenly believed that such possession was lawful in
New Jersey. The State acknowledged defendant had established the first
4
Attorney General, 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 (Sept. 24, 2014) (2014 Attorney
General Clarification).
A-0361-21
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criteria, and that the third criteria generally was presumed. However, defendant
did not qualify because he failed to establish the second criteria since he was not
licensed to carry a gun in Pennsylvania. Accordingly, the State submitted
defendant was not eligible for PTI.
The trial court noted it could only allow defendant into PTI over the State's
objection if defendant "clearly and convincingly establishes that the prosecutor's
review of the admission to the program was based on a patently gross abuse of
discretion." The court determined defendant failed to present extraordinary and
compelling circumstances as required under Rule 3:28-3(b)(1), and also did not
produce a concealed carry permit to warrant consideration of the 2014 Attorney
General Clarification. The court indicated defendant carried a "high
burden . . . to overcome the State's position," and defendant failed to meet that
burden. Consequently, the court denied defendant's motion.
On July 30, 2021, pursuant to a plea agreement, defendant pled guilty to
fourth-degree unlawful transport of a handgun. On September 7, 2021, the trial
court sentenced defendant to a three-year term of probation, in accordance with
his plea agreement. This appeal followed.
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III.
Defendant raises the following point for our consideration:
POINT I
THE PROSECUTOR'S REFUSAL TO CONSENT TO
THE CONSIDERATION OF DEFENDANT'S PTI
APPLICATION AMOUNTED TO A PATENT AND
GROSS ABUSE OF DISCRETION.
More particularly, defendant reprises the arguments made before the trial
court. Although defendant now concedes he does not fall within the purview of
the 2014 Attorney General Clarification, because his possession of the gun
would not have been lawful in his own jurisdiction, he maintains his failure to
satisfy the criteria under the 2014 Attorney General Clarification is not the
dispositive issue in this matter. Rather, the trial court's order regarding PTI must
be evaluated based on applicable law and not a prosecutorial policy. State v.
Waters, 439 N.J. Super. 215, 238-39 (App. Div. 2015). Specifically, defendant
argues, the CCPO failed to consider the factors set forth in N.J.S.A. 2C:43-12(e).
The State counters the trial court properly determined the prosecutorial
veto of defendant's PTI application was not a patent abuse of discretion. The
State argues that although defendant attempts to minimize the events
surrounding his arrest, the State cannot overlook that the police found defendant
asleep on the steps of a school, unlawfully carrying a loaded firearm.
A-0361-21
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Significantly, the State contends because defendant was presumptively
ineligible for PTI under Rule 3:28-1(d) the analysis under N.J.S.A. 2C:43-12(e)
is not necessary when a defendant fails to establish "compelling and
extraordinary circumstances" under Rule 3:28-3(b)(1).
IV.
"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)
(quoting State v. Roseman, 221 N.J. 611, 621 (2015) (internal quotations
omitted)). A prosecutor must evaluate PTI applications by considering the
factors defined by statute and court rules and conduct an "individualized
assessment" of the applicant. Ibid. The Supreme Court explained the evaluation
process as follows:
The assessment of a defendant's suitability for PTI must
be conducted under the Guidelines for PTI provided in
Rule 3:28, along with consideration of factors listed in
N.J.S.A. 2C:43-12(e). These factors include "the
details of the case, defendant's motives, age, past
criminal record, standing in the community, and
employment performance[.]" [State v. Watkins, 193
N.J. 507, 520 (2008)]; see N.J.S.A. 2C:43-12(e).
Additionally, a PTI determination requires that the
prosecutor make an individualized assessment of the
defendant considering his or her "'amenability to
correction' and potential 'responsiveness to
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rehabilitation.'" Watkins, 193 N.J. at 520 (quoting
N.J.S.A. 2C:43-12(b)).
[Roseman, 221 N.J. at 621-22.]
However, in cases involving a person charged with a crime for which there is a
presumption of incarceration or a mandatory minimum period of parole
ineligibility, there is a presumption against admission into PTI, and defendant
is obligated to establish extraordinary and compelling circumstances to justify
his or her application under Rules 3:28-1(d)(1) and 3:28-3(b)(1).
Our review of an appeal from denial of PTI is limited. State v. Negran,
178 N.J. 73, 82 (2003). We apply the same de novo standard of review of a
prosecutor's rejection of a PTI application as the trial court. Waters, 439 N.J.
Super. at 226. If a prosecutor's decision demonstrates consideration of all
appropriate factors, it will not be disturbed absent a showing that it was a patent
and gross abuse of discretion. State v. K.S., 220 N.J. 190, 200 (2015). We
afford prosecutors "broad discretion to determine if a defendant should be
diverted." Id. at 199. We address "only the 'most egregious examples of
injustice and unfairness'" in reviewing a denial of PTI. Negran, 178 N.J. at 82
(quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). A defendant rejected
from PTI must clearly and convincingly establish the prosecutor's refusal to
A-0361-21
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sanction admission into a PTI program was based on a patent and gross abuse
of discretion. K.S., 220 N.J. at 200.
A "[d]efendant generally has a heavy burden when seeking to overcome a
prosecutorial denial of his [or her] admission into PTI." Watkins, 193 N.J. at
520. The decision whether to admit a defendant to a PTI program is "'primarily
individualistic in nature' and a prosecutor must consider an individual
defendant's features that bear on his or her amenability to rehabilitation."
Nwobu, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)).
To establish an abuse of prosecutorial discretion, a defendant must
demonstrate:
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 [PTI].
[Roseman, 221 N.J. at 625 (first alteration in original)
(quoting State v. Bender, 80 N.J. 84, 93 (1979)).]
"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.'" Watkins, 193 N.J. at 520
A-0361-21
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(quoting State v. Wallace, 146 N.J. 576, 583 (1996)). "The question is not
whether we agree or disagree with the prosecutor's decision, but whether the
prosecutor's decision could not have been reasonably made upon weighing the
relevant factors." Nwobu, 139 N.J. at 254.
Applying these standards, we determine the CCPO's decision was not
premised upon a consideration of all relevant factors. The primary issue before
us is whether the State's denial of defendant's application appropriately followed
the procedure under Rules 3:28-1 to -10, and whether it appropriately considered
the PTI criteria, namely Rule 3:28-4 and the factors under N.J.S.A. 2C:43-12(e).
The State contends, without reference to any controlling authority, it was not
obligated to consider the factors set forth in N.J.S.A. 2C:43-12(e), because
defendant was presumptively ineligible for PTI under Rule 3:28-1(d)(1). We
disagree and determine the two inquiries overlap.
Rule 3:28-4 states: "In evaluating a defendant's application for
participation in a pretrial intervention program, consideration shall be given to
the criteria set forth in N.J.S.A. 2C:43-12(e)." (Emphasis added). Moreover,
N.J.S.A. 2C:43-12(e) provides, "[p]rosecutors and program directors shall
consider in formulating their recommendation of an applicant's participation in
[PTI]" the various criteria set forth in N.J.S.A. 2C:43-12(e)(1) through (17).
A-0361-21
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(Emphasis added). We recognize under Rule 3:28-1(e)(3), a defendant must
establish "extraordinary and compelling circumstances that justify consideration
of the application notwithstanding the presumption against admission."
However, that Rule must be read in harmony with Rule 3:28-4 and N.J.S.A.
2C:43-12(e), which require an evaluation of the factors set forth in N.J.S.A.
2C:43-12(e) when addressing a PTI application. The factors set forth in N.J.S.A.
2C:43-12(e) provide the context in which the prosecutor must determine if
extraordinary and compelling circumstances exist to warrant consent from the
prosecutor. Otherwise, there are no guidelines for the State to utilize in
determining if there are extraordinary and compelling circumstances.
In K.S., our Supreme Court reviewed a PTI denial which involved charges
where there was a "presumption against acceptance" into PTI. The Court stated
that, "[i]n determining whether the reasons defendant relied upon to justify his
admission into [PTI] are 'compelling,' the prosecutor and any reviewing court
are required to consider the criteria set forth in N.J.S.A. 2C:43-12." 220 N.J. at
198 (quoting State v. Seyler, 323 N.J. Super. 360, 369 (App. Div. 1999)). That
is, in the context of a defendant applying for PTI where there is a presumption
against acceptance, a prosecutor cannot simply determine a defendant fails to
satisfy extraordinary and compelling circumstances to justify an application
A-0361-21
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under Rule 3:28-1(d)(1) and dispense with an evaluation of the criteria set forth
in N.J.S.A. 2C:43-12(e). The Court in K.S. indicated the determination of
whether there are extraordinary and compelling circumstances under Rules 3:28-
1(d)(1) and 3:28-3(b)(1) necessarily includes an evaluation of the factors set
forth in N.J.S.A. 2C:43-12(e). 220 N.J. at 198. While K.S. analyzed an earlier
version of Rule 3:28, the same principles are implicated here.
While the CCPO determined defendant's PTI application failed to
establish the requisite extraordinary and compelling circumstances to justify
consideration of the application given the presumption of ineligibility, it did not
properly address the factors under N.J.S.A. 2C:43-12(e). When the State fails
to adequately explain its reasoning for how it has assessed the relevant statutory
factors, as it did here, a remand is warranted. State v. E.R., 471 N.J. Super. 234,
248 (App. Div. 2022); see also Nwobu, 139 N.J. at 247 (holding when a
prosecutor has failed to "consider all relevant factors or considers irrelevant
factors," a remand to the prosecutor is appropriate). 5
5
"A defendant may persuade a court to vacate a PTI rejection and remand to
the prosecutor for reconsideration on a somewhat lesser showing." Wallace, 146
N.J. at 583. "These are cases where a court finds that the prosecutor's decision
was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent
and gross abuse, and also determines that a remand will serve a useful purpose."
State v. Dalglish, 86 N.J. 503, 509 (1981). "A remand might serve a useful
A-0361-21
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We remand for the State to reconsider defendant's PTI application due to
its failure to consider the application in accordance with Rules 3:28-1 to -10 and
N.J.S.A. 2C:43-12(e).
Reversed and remanded. We do not retain jurisdiction.
purpose, for example, where it has been clearly and convincingly shown by a
defendant that the prosecutor failed to consider all relevant factors." Wallace,
146 N.J. at 583. Moreover, given the high standard of deference for prosecutors'
PTI determinations, "[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 [PTI] is appropriate in individual cases.'" K.S.,
220 N.J. at 200 (quoting Dalglish, 86 N.J. at 514).
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