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Being an illegal alien may not be reason enough to be denied admission to New Jersey’s pretrial intervention program, but it is a relevant factor for prosecutors to consider, an appeals court ruled on Wednesday. The panel ruled that Superior Court Judge Patricia LeBon in Burlington County overstepped her bounds when she overruled a prosecutor’s decision to refuse PTI to two men indicted for using fake documents to apply for driver’s licenses. In both cases, State v. Liviaz, A-5135-05T1, and State v. Claros-Benitez, A-5136-05T1, Assistant Prosecutor Deborah Siegrist cited the men’s illegal status in the United States for years as one reason to deny admission into the diversionary program. “He has chosen to commit a criminal act every day that he remains in this country illegally,” Siegrist wrote in a rejection letter for David Liviaz, a Peruvian living in the U.S. for 13 years. “Rather than attempting to gain some legal status, he has actively engaged in fraud and subterfuge to remain here.” “This behavior is not indicative of an honest person who has engaged in an aberrant single episode of criminal activity,” she continued. “Rather, it is indicative of a person who does not feel bound by the law when it is not consonant with his own desires.” Siegrist used the same language when she rejected the PTI application of Dennis Claros-Benitez, a Honduran in the United States illegally for five years. LeBon said it appeared to her that Siegrist invoked a per se rule disallowing PTI for any illegal alien and that she had engaged in a “patent and gross abuse” of discretion. But Appellate Division Judges Donald Coburn, Francine Axelrad and William Gilroy said LeBon misread Siegrist’s intent, and noted that judges generally are blocked from reversing prosecutors’ decisions regarding PTI under State v. Negron, 178 N.J. 73 (2003). “[P]rosecutors have ‘wide latitude’ in their PTI decisions and our scope of review is ‘severely limited,’” Coburn wrote for the panel. “Our difficulty with the trial judge’s opinion is its failure to demonstrate that a per se rule was in fact applied. . . . Although defendants’ illegal status was an important factor, it was far from the only factor on which the assistant prosecutor relied.” Siegrist says she is pleased the appeals court understood her reasons for rejecting the applications. The defendants’ attorney, Assistant Deputy Public Defender Marcia Blum, was away from her office on Wednesday and could not be reached for comment.

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