NOT FOR PUBLICATION

PER CURIAM.

Defendant appeals from the denial of his application for entry into a Pre-Trial Intervention (PTI) program. We affirm.

On the evening of December 8, 2009, the Sparta Township Police Department received a 911 call reporting that a black BMW with Maine license plates was being driven erratically. Officer Brian P. Hassloch responded to an area of Route 15 where he located the vehicle and observed it swerving and failing to maintain its lanes. Officer Hassloch activated his emergency lights and siren but defendant, the driver of the car, sped away at a rate of 80 mph, continuing to swerve and cross the lines in the highway. Defendant did not stop until he reached an area with heavy traffic he was unable to pass. He then stopped his car in the right lane.

Defendant admitted that he had "two beers." The officer testified he had an odor of alcohol. There were several open containers on the floor of his car. Defendant failed field sobriety tests and a breathalyzer test revealed a blood alcohol content of.21. He was charged with third-degree eluding, N.J.S.A. 2C:29-2(b); driving while intoxicated (DWI), N.J.S.A. 39:4-50; driving without a license, N.J.S.A. 39:3-10; reckless driving, N.J.S.A. 39:4-98; speeding, 80 mph in a 50 mph zone, N.J.S.A. 39:4-96; driving with an open container in a motor vehicle, N.J.S.A. 39:4-51a(b); and three other motor vehicle offenses.

Defendant applied for entry into the PTI program in April 2010. In June 2010, the prosecutor wrote to defendant's attorney to offer a plea agreement and to advise that the State's position was that defendant was not eligible for PTI "based on his prior probationary term in Massachusetts and his multiple motor vehicle violations." A letter from Brian F. Hicks, Senior Probation Officer, notified defendant of his rejection and gave the following reasons:

Defendant appealed to the Law Division from this denial. In his appeal, he described the basis for his denial as "an incident in Massachusetts that resulted in the Boston Municipal Court placing Mr. Sparda in a diversionary program, the terms of which he successfully complied with and his charges were dismissed." After the Law Division denied his appeal, defendant entered guilty pleas to the eluding and DWI charges pursuant to a plea agreement and was sentenced to three years' probation, 150 hours of community service, a one-year suspension of driving privileges and appropriate fines and penalties.

In this appeal, he presents the following issues for our consideration:

The question whether the State based its decision to reject a PTI application on appropriate factors is a question of law, State v. Nwobu, 139 N.J. 236, 247 (1995), which we review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is essentially a prosecutorial function to decide whether to accept or reject a defendant's PTI application. State v. Leonardis, 73 N.J. 360, 381 (1977). Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," State v. Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J.Super. 106, 111 (App. Div. 1993), and it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis, supra, 73 N.J. at 380) (internal quotation marks omitted).

The defendant who seeks to overcome a prosecutor's rejection of his admission into PTI must satisfy the heavy burden of showing clearly and convincingly that the prosecutor's decision constitutes a patent and gross abuse of discretion. Negran, supra, 178 N.J. at 82; Nwobu, supra, 139 N.J. at 246. Grounds for reversal will only exist if "the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a `patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra, 178 N.J. at 82-83; State v. Brooks, 175 N.J. 215, 225 (2002); Nwobu, supra, 139 N.J. at 246. Further, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).

Defendant argues that the denial of his application constituted a reversible abuse of discretion. Citing State v. McKeon, 385 N.J.Super. 559, 571 (App. Div. 2006), he argues that previous admission into an out-of-state diversionary program does not "bar an otherwise eligible defendant from PTI[.]" Defendant contends that the net result of his participation in the diversionary program was a dismissed charge, which may only be given limited consideration in evaluating his application. In addition, he argues that the State improperly relied upon his motor vehicle history in denying his application. We disagree.

Although the completion of a diversionary program in another state does not invoke the statutory bar of N.J.S.A. 2C:43-12(g), McKeon, supra, 385 N.J. Super. at 571, "prior admission to an out-of-state diversionary program may be considered as a factor in determining whether the defendant should be admitted, e.g., `[t]he extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior.'" Ibid. (quoting N.J.S.A. 2C:43-12(e)(8)). Addressing the permissible use of dismissed charges, the Supreme Court stated they "may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense." Brooks, supra, 175 N.J. at 229. In addition, "an applicant's past driving record might be relevant in considering [whether an] alleged "pattern of anti-social behavior" existed as a basis for denying a PTI application. Negran, supra, 178 N.J. at 84.

Defendant was thirty-one years old at the time of this offense. He was arrested approximately six years earlier on the charge that led to his participation in the Massachusetts diversionary program. A review of his motor vehicle history from Maine reflects numerous violations from June 1996 to March 2009:

In addition to these infractions, the motor vehicle history also includes a failure to appear and two failures to pay fines.

This is not, then, a case in which a prosecutor attempted to weave a history of anti-social behavior out of a single DWI and a single motor vehicle offense that occurred more than ten years before the offense that was the subject of the defendant's PTI application. See Negran, supra, 178 N.J. at 84-85. Here, defendant was charged with motor vehicle offenses on ten different occasions during a thirteen-year period, with five of those occasions occurring within five years of his arrest in this case. When his prior diversion is added to the chronology of his charges, it is noteworthy that he was charged with driving an unregistered motor vehicle while he was participating in the diversionary program. His last four motor vehicle convictions were for violations that occurred after the charges were dismissed in Massachusetts on October 14, 2005.

In addition, the present offense bears a strong relationship to the nature of defendant's prior motor vehicle convictions. During the course of eluding the officer, defendant sped and drove recklessly, conduct that was the subject of five prior motor vehicle convictions. Defendant also has a prior conviction for refusing a chemical test. Although we do not infer that he was guilty of driving while intoxicated on that occasion, that conviction also provided a basis for defendant to exercise greater prudence to avoid committing offenses that involved drinking and driving.

In Negran, the Court acknowledged "that a driving history can have some limited relevance to a PTI application if there is a strong substantive and temporal relationship between the past motor vehicle offenses and the offenses with which a PTI applicant has been charged." Id. at 77. The record amply demonstrates such a relationship here. We are satisfied that defendant has failed to meet his burden of showing clearly and convincingly that the prosecutor's decision constitutes a patent and gross abuse of discretion.

Affirmed.