Prosecutor has discretion on PTI STATE v. WILLIAM S. BING,

Prosecutor has discretion on PTI 

STATE 
v.
WILLIAM S. BING,
Defendant-Appellant. _____________________________

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-5096-17T1

Submitted September 10, 2019 – Decided September 16, 2019Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 17-02-0328.

PER CURIAM
NOT FOR PUBLICATION WITHOUT THE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.

Defendant appeals the denial of his pretrial intervention (PTI) application. Finding no ground that would permit judicial intervention into that prosecutorial determination, we affirm.
Defendant was indicted and charged with: third-degree possession of heroin, a controlled dangerous substance (CDS); third-degree CDS possession with the intent to distribute; third-degree CDS possession with the intent to distribute on or within 1000 feet of school property; second-degree CDS possession with the intent to distribute within 500 feet of public property; and fourth-degree resisting arrest by flight. In applying for PTI, defendant urged the fact that he had no prior convictions, as well as other mitigating circumstances. The prosecutor considered all those circumstances, as well as other aggravating circumstances, in ultimately adhering to the PTI program director's recommendation that the facts and circumstances relating to the second-degree charge warranted rejection.
In moving for relief in the trial court, defendant argued that the prosecutor placed undue reliance on his prior record, particularly the fact that he was once charged with conspiring to commit murder – for which he was acquitted – and other arrests, all of which resulted in dismissal. In her oral decision, however, the judge correctly observed that the prosecutor did not determine that

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defendant's prior arrests and charges weighed against PTI admission; instead the judge concluded that the facts and nature of this case, the needs and interests of society, the need for prosecution, and the harm that would result from abandoning prosecution, provided ample grounds for outweighing the mitigating factors and warranted a denial of admission to PTI. Defendant later pleaded guilty to third-degree CDS possession within 1000 feet of school property and was sentenced to a three-year probationary term.
In appealing the denial of PTI admission, defendant argues only that "the prosecutor's rejection . . . [was] a patent and gross abuse of discretion that clearly subverted the goals underlying PTI" that, he claims, must be "corrected by this court." We disagree.
Because the decision to grant or deny PTI is "a quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 (1996), our courts give prosecutors in such matters "a great deal of deference," State v. Roseman, 221 N.J. 611, 624 (2015), and only intervene when the circumstances "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," id. at 624-25 (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)). Such an abuse of discretion may be found only when it is manifest that the prosecutorial decision:

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"(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." Id. at 625 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).
Defendant's only colorable argument lies with his contention that the prosecutor relied on his prior arrests and that such reliance was improper because all those charges either resulted in acquittals or dismissals. See State v. K.S., 220 N.J. 190, 202 (2015). But, as the judge correctly recognized, the prosecutor's decision was not based on those events.1 After closely examining the record, we affirm substantially for the reasons set forth by Judge Siobhan A. Teare in her oral decision. We have already delineated the factors that weighed against PTI admission. The prosecutor also properly considered, as the judge observed, that other factors – such as the lack of prior convictions, defendant's age and motivation, his lack of involvement with gangs or organized crime, and an absence of co-defendants – weighed in favor of admission. Ultimately, the judge properly concluded that the prosecutor's weighing of these competing
1 It is true that those circumstances were recounted in the prosecutor's written explanation, but only as part of "the narrative of defendant's background" and not as support for an aggravating factor. In fact, the prosecutor recognized that defendant had no prior convictions and viewed the absence of prior convictions as mitigating in favor of PTI admission.

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factors did not produce a result that "amounted to a clear error in judgment." We agree.

A-5096-17T1

Automobile exception to search discussed here STATE v. SHAWN PEARSON,

Automobile exception to search discussed here STATE 

v.

SHAWN PEARSON, a/k/a QUINZELL ALEXANDER, CLIFTON ANDREWS, SHAWN DAVIS, and LASHAWN PETERSON,
Defendant-Appellant. ________________________________
Submitted June 18, 2019 – Decided September 6, 2019 Before Judges Koblitz and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-07-0117.
PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-5435-17T3

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.

Defendant Shawn Pearson appeals from his June 26, 2018 judgment of conviction after pleading guilty to second-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2). He argues the trial court should have granted his motion to suppress drugs, drug paraphernalia, and a loaded weapon found on his person and in his vehicle after a traffic stop. See R. 3:5-7(d) (allowing an appeal of the denial of a suppression motion after a guilty plea). We affirm.
I.
The following facts were found by the trial court after a suppression
hearing. On February 15, 2016, two New Jersey State Police detectives were traveling together in an unmarked vehicle when they saw a silver Jeep speeding erratically through a busy intersection. The Jeep drifted into a construction zone with workers present and struck an orange safety cone without brake light activation. The detectives observed the Jeep's driver-side door open for ten seconds. At that point, the detectives radioed for backup units.
The detectives then observed the Jeep nearly strike an unmarked police vehicle that had responded to the call for assistance, as the Jeep turned left without a turn signal. The Jeep thereafter made an abrupt right turn with no signal and ran through a stop sign at a speed above the posted limit. After

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following the Jeep for approximately half a mile, the detectives activated their lights and sirens and effectuated a stop. The time between the detectives' first observation of the Jeep and the stop was approximately two minutes.
One detective approached the driver-side window of the Jeep where he observed defendant in the driver's seat rocking back and forth. The detective described defendant as "irate and belligerent" with his hands "swinging up and down"andhisvoice"exceedinglyloudtothepoint[of]yelling." Defendanthad bloodshot eyes and a visibly dry mouth. He spoke in a slurred manner and was neither acting rationally nor making sense. Defendant produced a driver's license but was unable to produce the vehicle's registration or proof of insurance. The detective directed defendant to exit the vehicle.
As defendant was stepping out of the Jeep, the detective saw a hypodermic needle and crack-cocaine in an open cup holder inside the vehicle's center console. As a result, the detective arrested defendant and searched his person. The search revealed thirty-three loose Oxycodone pills in defendant's jacket pocket, two medium-sized crack-cocaine rocks in a blue box with a clear top, fourteen baggies of crack-cocaine in defendant's left jeans pocket, and $500 in cash.

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The detective searched the center console of the Jeep where he had previously seen the syringe and crack-cocaine. He opened a compartment of the center console, revealing a cigarette box containing two glass pipes with burnt crack-cocaine residue inside.
In addition, based on his training and experience, the detective noticed that the plastic dashboard of the Jeep showed evidence of tampering consistent with concealing contraband. The dashboard clips were not fully secured, as they would have been when the vehicle came from the manufacturer. In addition, the dashboard was, according to the detective, "protruding . . . it wasn't aligned right, it wasn't smooth." Aware from his training that Jeeps have "a natural void under the dashboard" that is often used to store contraband and weapons, the detective pushed the dashboard "slightly," and it "popped off easily, as if it had been removed on numerous occasions." Under the dashboard, the detective discovered a semi-automatic handgun loaded with hollow-nose bullets with its serial number defaced. Defendant thereafter confessed to having ingested controlled substances before driving the Jeep. The detective issued numerous motor vehicle citations.1
1 The passenger in the Jeep was also arrested. She died prior to resolution of the criminal charges lodged against her.

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Defendant argued at the suppression hearing that the officers lacked probable cause to stop the Jeep and the warrantless searches of the cup holder, the closed console compartment, and the dashboard were unconstitutional.
The trial court determined the testimony of the detective who effectuated the stop and discovered the evidence to be credible. The court concluded that his observations provided reasonable and articulable suspicion the driver of the Jeep had committed motor vehicle violations and the stop of the vehicle without a warrant was thus lawful. The court also concluded the approximately two- minute period between the observation of the first motor vehicle infraction and the stop was reasonable because the detectives were waiting for the arrival of backup units.
The court found the detective's observation of the syringe and crack- cocaine in the open cup holder fell within the plain view exception to the warrant requirement and justified defendant's arrest. In addition, the court found that the contraband in the closed console compartment and under the dashboard was lawfully seized pursuant to the automobile exception to the warrant requirement.
After his guilty plea, the court sentenced defendant to an eight-year term of imprisonment with a fifty-four-month period of parole ineligibility. This appeal followed. Defendant makes the following arguments:

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POINT I
THE TRIAL COURT ERRED IN RULING THE POLICE HAD PROBABLE CAUSE TO STOP THE DEFENDANT'S MOTOR VEHICLE.
POINT II
THE TRIAL COURT ERRED IN RULING THE WARRANTLESS SEARCH OF THE CENTER CONSOLE OF THE MOTOR VEHICLE WAS JUSTIFIED BY THE PLAIN VIEW DOCTRINE.
POINT III
THE TRIAL COURT ERRED IN RULING THE WARRANTLESS SEARCH OF THE VOID IN THE DASHBOARD OF THE MOTOR VEHICLE AS JUSTIFIED BY THE AUTOMOBILE EXCEPTION.
II.
We apply a deferential standard of review to a trial court's factual findings
after a suppression hearing, upholding findings "supported by sufficient credible evidence in the record." State v. S.S., 229 N.J. 360, 381 (2017). We review de novo the trial court's application of its factual findings to the governing principles of law. State v. Jessup, 441 N.J. Super. 386, 389-90 (App. Div. 2015).
A police stop of a moving motor vehicle is a seizure of the vehicle's occupants and therefore falls within the purview of the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. Whren v. United States,

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517 U.S. 806, 809-10 (1996); State v. Baum, 199 N.J. 407, 423 (2009). "[A] police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop." State v. Scriven, 226 N.J. 20, 33-34 (2016).
Our review of the record in light of the applicable precedents reveals sufficient credible evidence supporting the trial court's findings of fact regarding the detective's observations prior to stopping defendant's vehicle. The court, having heard the detective's testimony, determined he was credible and found he saw defendant commit a number of motor vehicle violations before stopping the Jeep. There is no basis to disturb the court's factual findings, nor support in the record for defendant's contention that the detective fabricated the motor vehicle violations to justify stopping defendant's vehicle. The stop of defendant's Jeep, therefore, was lawful.
We reject defendant's argument that the approximately two minutes between the first observation of a motor vehicle violation and the stop negated the basis for stopping the vehicle. The detective acted reasonably when he waited for backup to arrive before stopping the Jeep.

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III.
The State must satisfy three elements to justify the seizure of evidence
under the plain view exception to the warrant requirement:
First, the police officer must be lawfully in the viewing area.
Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.
Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.
[State v. Mann, 203 N.J. 328, 341 (2010) (quoting State v. Bruzzese, 94 N.J. 210, 236 (1983)).2]
The record amply supports the trial court's conclusion that the syringe and crack-cocaine discovered in the open cup holder in the Jeep's center console were obtained lawfully. As we explained above, the stop of the Jeep was lawful. The detective, therefore, was lawfully at the side of the Jeep when he observed the contraband. In addition, defendant's behavior suggesting he was under the influence of intoxicants, his motor vehicle violations, and his inability to
2

In State v. Gonzales, 227 N.J. 77, 82 (2016), the Court eliminated the inadvertence element of the plain view doctrine. The Court's holding, which was issued after the events giving rise to this appeal, is prospective. Ibid.

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produce proof of insurance and registration warranted his removal from the vehicle. The contents of the open cup holder then became visible to the detective and were readily identifiable as contraband.3
IV.
In State v. Witt, 223 N.J. 409, 415 (2015), the Supreme Court revised the standards under New Jersey law governing police searches of motor vehicles that have been lawfully stopped at the roadside. The Court held such nonconsensual roadside searches may be conducted without a warrant if: (1) the police have probable cause to believe the vehicle contains evidence of criminal activity; and (2) the situation arose from unforeseeable and spontaneous circumstances.
[State v. Rodriguez, 459 N.J. Super. 13, 15 (App. Div. 2019).]
Our careful review of the record reveals sufficient support for the trial court's determination that the seizures of the contents of the closed compartment in the center console and the gun behind the dashboard fell within the automobile exception to the warrant requirement. The detective, having already observed a syringe and crack-cocaine in an open cup holder in the center console, had probable cause to believe the Jeep contained further contraband. As the trial
3 Defendant does not argue that the detective's observation of the contraband was not inadvertent or that the syringe and crack-cocaine were not readily identifiable as contraband.

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court found, the detective's experience and training led him to suspect contraband was secreted in the Jeep. It was probable the closed container in the center console, immediately adjacent to the place where defendant kept a syringe and crack-cocaine in an open cup holder, would also contain contraband.
Having discovered contraband in the center console's closed compartment, the detective continued his search of the Jeep. The record supports the trial court's determination that the detective's training and experience informed his observation that the dashboard was likely tampered with to store contraband. The detective, aware there are natural voids under dashboards in Jeeps, having previously found contraband in such voids in other Jeeps, and observing that the dashboard in defendant's Jeep was protruding and not correctly aligned, pushed on it slightly, causing the dashboard cover to pop off, revealing a loaded weapon. We agree with the trial court's conclusion that the detective did not exceed the bounds of a reasonable search under the automobile exception to the warrant requirement. See State v. Patino, 83 N.J. 1, 10-11 (1980) ("It is widely recognized that a search, although validly initiated, may become unreasonable because of its intolerable intensity and scope.").

Affirmed.

A-5435-17T3

PTI denied where long term theft by employee here STATE v. BRENDA A. SYPECK

PTI denied where long term theft by employee here STATE

v.
BRENDA A. SYPECK,
Defendant-Appellant. ____________________________

Submitted August 13, 2019 – Decided September 5, 2019
Before Judges Sumners and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-03- 0269.

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-2479-17T1
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.

Defendant Brenda Sypeck appeals from the Law Division's order affirming the State's rejection of her application for admission into the pretrial intervention program (PTI) and requiring her to pay $368,000 in restitution. Defendant contends the denial of her entry into PTI was an arbitrary, patent and gross abuse of discretion, and that she should not have been ordered to pay restitution without a hearing to determine her ability to pay. While the State continues its opposition to her admission into PTI, it concedes a hearing should have been held. Having considered the arguments raised in light of the record and our standard of review, we affirm the denial of defendant's admission into PTI but reverse the restitution order and remand for a hearing to determine her ability to pay and the amount of time for making payment.
I
In June 2016, the president (the victim) of Gerrus Maintenance, Inc. (the
company), reported to police that defendant, the company's bookkeeper, over a period of approximately three years from January 2013 to June 2016, cashed one hundred and forty-one company checks totaling approximately $200,000 that she issued to herself without authorization. Based upon a re-audit of the books, the victim later estimated the loss to be over $300,000.

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According to the victim, when he confronted defendant, she admitted taking the money due to a gambling problem. Defendant, who had been employed by the company for eleven years, was immediately terminated and left the premises before the police arrived.
Prior to the victim's complaint being presented to a grand jury, defendant applied to the Middlesex County criminal case management office for PTI in November 2016. Defendant, fifty-seven years old, was never married, had no children, and was the sole caregiver for her ill elderly mother, who resided with her. She did not have a prior criminal record. She claimed the unauthorized checks she wrote and cashed totaled $225,000, and were used to pay off her gambling debts, care for her divorced parents, and pay bills. Diagnosed as a gambling addict after her arrest, defendant began attending Gambler's Anonymous to remedy her addiction.
The Criminal Division Manager/PTI Director (CDM) denied defendant's PTI application, reasoning that: defendant had committed the offense an excessive amount of times over an extended period; she abused her position of trust as bookkeeper to steal money from her employer that she reportedly used to pay off her gambling debts and personal expenses; she was accused of a second-degree offense, which carries a presumption of incarceration; and the

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victim was extremely opposed to her admission into PTI.1 The CDM concluded: "Her crime constitutes a pattern of continuing criminality and the offense is of such a nature that supervisory treatment is not outweighed by the public need for prosecution."
Defendant thereafter moved before the Law Division to allow her entry into PTI, claiming there was an abuse of discretion in rejecting her admission. She argued that she should be admitted into PTI because of her lack of a prior criminal record, her amenability to rehabilitation, the non-violent nature of her offense that was due to her gambling addiction, and her desire to pay restitution.
The State opposed the motion. In his statement of reasons for denial of PTI, the prosecutor stated that defendant was charged with second-degree offenses, which carry a presumption against admission into PTI. The prosecutor also found denial was supported by the following factors set forth 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;
1 Due to the loss caused by defendant, the victim claimed that he had to spend his retirement funds to pay for employee salaries and bills.

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(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 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;
....
(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;
....
(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.
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In considering the N.J.S.A. 2C:43-12(e) factors, the prosecutor found that factors one, two, three, four, five, six, seven, eight, nine, fourteen, and seventeen weighed against defendant, but noted that factor three weighed in her favor.
Following oral argument, the trial judge noted the deference given to a prosecutor's decision regarding PTI applications and found that the State did not "act in a manner that constituted a patent and gross abuse of discretion in denying" defendant's application.
Defendant thereafter pled guilty to second-degree theft by unlawful taking, in consideration for the State's agreement to dismiss the remaining five charges and recommend that she be sentenced to a six-year prison term. As for restitution, the judge, finding that a forensic accountant hired by the victim proved the loss was $293,200 while defendant believed it was about $225,000, allowed defense counsel to submit a sentencing memo detailing "[defendant's] ability to pay."
The judge later sentenced defendant in accordance with the plea agreement. She was presented with, and executed, a consent judgment2 between
2 As of November 16, 2017, a month before this sentencing on December 15, 2017, we held "criminal courts are proscribed from entering civil consent judgments when sentencing a defendant to make restitution." State v. Masce, 452 N.J. Super. 347, 355 (App. Div. 2017).

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defendant and the State whereby defendant agreed to pay the victim and his wife $227,000. There was no timetable for when payment should be made. Notwithstanding the parties' agreement, the judge determined the "full restitution is for $368,000." The judge made no mention of defendant's ability to pay, merely commenting "[t]he attorneys can explain the ramifications of the difference."
II
We first address defendant's contentions that she should have been
allowed entry into the PTI program, or in the alternative, there be a remand to the prosecutor for reconsideration of her PTI application. First, citing State v. Smith, 92 N.J. 143, 147 (1983), for the principle that the weight of the evidence of guilt or innocence, standing alone should not be considered by neither the prosecutor nor the court in evaluating the PTI admission, defendant contends the judge inappropriately gave weight to the fact that she admitted guilt to second-degree theft.
Second, defendant argues the judge erred in giving weight to several PTI factors. She reasons the victim's opposition to her admission into PTI should not be given particular weight because his opposition may be based on revenge or considerations unrelated to PTI evaluators. State v. Imbriani, 291 N.J. Super.

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171, 180 (App. Div. 1976). She points out that neither the victim's age nor his monetary loss should be given particular weight because defendant did not specifically take advantage of the victim's vulnerability. Defendant also asserts since she did not act out of malice or desire to develop a fraudulent relationship with the victim, but rather committed the offense due to her overpowering gambling addiction, the fact that she abused the position of trust should not be considered particularly more than the other factors. She further notes the judge did not give enough weight to PTI factors five and six because the offense was due to her gambling problem that she was devoted to remedy.
Third, defendant argues the judge's ruling subverted the PTI goals of achieving deterrence of future crimes by means of rehabilitative service and relieving the overburdened criminal calendar for judicial economy. State v. Nwobu, 139 N.J. 236, 247 (1995).
Based upon the following principles, defendant's contentions do not warrant a reversal of the judge's order, which allowed the denial of her admission into PTI to stand.
"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. Roseman, 221 N.J. 611, 621 (2015)

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(quoting Nwobu, 139 N.J. at 240). Accordingly, "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 rehabilitation.'" Id. at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).
The scope of our review of a PTI rejection is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit a defendant's diversiontoPTI"isaquintessentiallyprosecutorialfunction." Statev.Wallace, 146 N.J. 576, 582 (1996). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." Nwobu, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). Accordingly, courts give prosecutors "broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015). Thus, on appellate review, PTI decisions are given "enhanced deference." State v. Brooks, 175 N.J. 215, 225 (2002).
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of

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the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" Roseman, 221 N.J. at 621 (alteration in original) (quoting Watkins, 193 N.J. at 520). "In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" Watkins, 193 N.J. at 520 (citation omitted). "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.'" Ibid. (citation omitted). An abuse of discretion is manifested where it can be proven "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. Lee, 437 N.J. Super. 555, 563 (2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).
Under these parameters, we see no cause to disturb the trial judge's order substantially for the reasons set forth in her written decision. We agree with her findings that the State did not abuse its discretion in denying defendant's admission into PTI.

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We, however, take issue with the judge's restitution order of $368,000. Defendant asserts the judge did not consider her ability to pay restitution and apparently assumed the consent judgment relieved the judge of her responsibility to do so, especially where the restitution amount exceeded the amount of the consent judgment. N.J.S.A. 2C:44-2(b), -2(c)(2); State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). Defendant maintains that due process requires a hearing on her ability to pay and the time period for making restitution. State v. Orji, 277 N.J. Super, 582, 589 (App. Div. 1994). We agree with defendant, as does the State, that a hearing must be held to determine her ability to pay and the amount of time she should be permitted to make restitution. Thus, we remand for that purpose.
Affirmed in part, reversed in part, and remanded for a restitution hearing. We do not retain jurisdiction.

STATE OF NEW JERSEY V. TYRELL JOHNSON (L-000797-19)

STATE OF NEW JERSEY V. TYRELL JOHNSON (L-000797-19)

On March 7, 2018, J.T. (hereinafter “J.T.”),1 a senior at LEAP Academy University Charter School in Camden, New Jersey (hereinafter “LEAP Academy”), received an Instagram message from defendant, a middle school guidance counselor at the same school. That message asked J.T. to “[s]how me them huge rockets of your [sic] . . . .” Defendant was subsequently charged and indicted with third-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1).