STATE OF NEW JERSEY VS. ROBERT HERDÂ (16-06-1041, MIDDLESEX COUNTY AND STATEWIDE), A-3036-16T1

Defendant Robert Herd (22) was indicted for multiple marijuana-related offenses after two undercover purchases (.99g and 7.06g) and an arrest during which he tried to chew/swallow what officers believed was marijuana; one sale occurred within 1000 feet of an elementary school and within 500 feet of a community center.
Charges included fourth- and third-degree distribution counts, distribution in a school zone/public property buffer, and evidence tampering.
The county PTI Director recommended admission conditioned on substance-evaluation, treatment compliance, and monitoring; defendant had limited juvenile and municipal prior contacts and some substance counseling history.
The Prosecutor rejected PTI after a written analysis applying the 17 statutory factors (N.J.S.A. 2C:43-12(e)), emphasizing repeated sales, evidence tampering, post-arrest marijuana use, and the public interest in deterrence—particularly given the school-zone sale.
The trial judge reversed, finding the Prosecutor failed to weigh factors appropriately, viewed defendant as addicted and amenable to rehabilitation, and concluded the rejection was a patent and gross abuse of discretion; the Appellate Division reversed the judge and reinstated the Prosecutor’s rejection.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Herd)	Held
Whether the Prosecutor’s rejection of PTI was a "patent and gross" abuse of discretion	Prosecutor properly considered and balanced all 17 statutory factors and reasonably concluded defendant’s repeated sales, evidence tampering, continued use, prior municipal convictions, and school-zone sale justified rejection for PTI	The Prosecutor failed to give proper individualized weight to mitigating factors (youth, remorse, treatment needs); judge should admit to PTI	Appellate court: Prosecutor did not commit a patent and gross abuse of discretion; reversal of Prosecutor was improper; remand for prosecution
Whether the trial judge properly substituted his own judgment for the Prosecutor’s in weighing PTI factors	N/A (State argues judge overstepped)	Judge argued Prosecutor’s analysis was reflexive and ignored rehabilitation goals, warranting judicial intervention	Appellate court: Trial judge improperly supplanted prosecutorial discretion; courts must defer unless a patent and gross abuse is shown

Roseman v. State, 221 N.J. 611 (discusses PTI as diversion and individualized assessment requirement)
Nwobu v. State, 139 N.J. 236 (PTI augments prosecutorial discretion; prosecutor decides whom to prosecute)
Watkins v. State, 193 N.J. 507 (standard for overturning PTI rejection: patent and gross abuse of discretion)
Negran v. State, 178 N.J. 73 (scope of judicial review of PTI denials is severely limited)
Wallace v. State, 146 N.J. 576 (distinguishes abuse of discretion from patent and gross abuse; emphasizes deference to prosecutor)
Kraft, 265 N.J. Super. 106 (discusses prosecutorial role in PTI decisions)
Caliguiri v. State, 158 N.J. 28 (school-zone drug statutes create a presumption against PTI)
DeMarco v. State, 107 N.J. 562 (judicial disagreement with prosecutorial judgment does not alone establish abuse of discretion)