STATE OF NEW JERSEY VS. ANTHONAY C. MCIVER (18-09-0819, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
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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."
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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."
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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
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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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