Filed: Oct. 21, 2015
Latest Update: Oct. 21, 2015
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant appeals from an order denying his challenge to the prosecutor's rejection of his application for admission into the county pre-trial intervention (PTI) program. We affirm. In February 2012, a police officer conducted a motor vehicle stop and issued defendant summonses for driving an unregistered motor vehicle, N.J.S.A. 39:3-4, and driving with a suspended license (DWS), N.J.S.A. 39:3-40. Defendant
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant appeals from an order denying his challenge to the prosecutor's rejection of his application for admission into the county pre-trial intervention (PTI) program. We affirm. In February 2012, a police officer conducted a motor vehicle stop and issued defendant summonses for driving an unregistered motor vehicle, N.J.S.A. 39:3-4, and driving with a suspended license (DWS), N.J.S.A. 39:3-40. Defendant c..
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant appeals from an order denying his challenge to the prosecutor's rejection of his application for admission into the county pre-trial intervention (PTI) program. We affirm.
In February 2012, a police officer conducted a motor vehicle stop and issued defendant summonses for driving an unregistered motor vehicle, N.J.S.A. 39:3-4, and driving with a suspended license (DWS), N.J.S.A. 39:3-40. Defendant claimed that he had been driving because he received an emergency construction job and needed the money. A grand jury later indicted and charged defendant with fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent conviction of driving while intoxicated (DWI), N.J.S.A. 2C:40-26b. Thereafter, defendant applied for admission into the PTI program.
A PTI director recommended defendant for admission into the program, but the prosecutor rejected that recommendation. The prosecutor considered defendant's PTI application pursuant to N.J.S.A. 2C:43-12, Rule 3:28, and the accompanying Guidelines. Denial of defendant's admission into the program was based on an extensive written statement of reasons. In addition to reviewing materials that defendant submitted with his PTI application, the prosecutor considered the following criteria:
1) [N.J.S.A.] 2C:43-12e(2)[:] The facts of the case. The facts of this case show that the defendant operated his motor vehicle while his license was suspended. A review of the defendant's court history shows that he has had numerous motor vehicle violations including numerous DWI's and [DWS] or revoked. A condition of suspending the defendant's license was imposed upon him for a purpose. The defendant[,] who ignored this condition[,] could have easily caused injury to pedestrians or other motorists traveling to their destinations on the highways. The defendant was prohibited from driving and just ignored the law and other motorists in doing so.
2) [N.J.S.A.] 2C:43-12e(3)[:] The motivation [and age] of the defendant. The defendant's prior contacts with the court have failed to deter him or motivate him. He continues to offend. Although the defendant is only 57 years old, he has now been charged six times. His court history began in 1976. He has two municipal court convictions. He has had a temporary restraining order which was finalized against him in the family court. He was next charged in 2010 with two counts of theft of services. A review of the court history of this case shows that the defendant has had three warrants issued. The first warrant was issued on August 5, 2010, and remained outstanding until September 7, 2010. The next warrant was issued on September 15, 2010[,] and remained outstanding until September 24, 2010. The final warrant was issued on February 2, 2011[,] and remained outstanding until January 23, 2013. The warrant was outstanding when the PTI report was written. On March 22, 2012[,] the defendant was charged in Bradley Beach with the present offense for which he applies to PTI. Further[,] a review of the defendant's driver's abstract shows that he has had numerous motor vehicle convictions including those for operating under the influence and operating while suspended or revoked. Clearly the defendant's prior contacts with the court have failed to deter or motivate him. He has had numerous bench warrants issued. His failure to abide by conditions imposed upon him by the court shows that he has little regard for the court's authority or the rules of our society. Clearly he is not deterred. He simply ignores what he is supposed to do. He continues to offend.
3) [N.J.S.A.] 2C:43-12e(7)[:] The needs and interests of the victim and society; and [N.J.S.A.] 2C:43-12e(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. There is a need to deter those who illegally drive after being placed on the suspended or revoked list by the public prosecution of their cases. The legislature has recognized the danger posed to society as well as the harm inflicted by those who commit these offenses. The fact that this charge carries a term of imprisonment underscores the gravity of the crime as viewed by the [L]egislature. The deterrent provided by the public prosecution of such offenders outweighs any benefits of admission into PTI. Further[,] the public must be assured that those who create a grave and lethal danger to other motorists will not be treated lightly. Any value that PTI may afford the defendant is significantly outweighed by the need to prosecute this offense.
The state has considered the positive factors in the defendant's application. The State though finds that the negative factors significantly outweigh the positive[,] making the defendant an inappropriate candidate for PTI.
Defendant then filed a PTI appeal to the judge.
The judge conducted oral argument, at which defense counsel emphasized that no victim resulted from defendant driving on the suspended list. The judge issued an oral opinion upholding the denial of defendant's admission into the PTI program, concluding that the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion.
Defendant then pled guilty to fourth-degree operating a motor vehicle during a period of license suspension for a second or subsequent conviction of DWI, N.J.S.A. 2C:40-26b. The judge sentenced defendant in accordance with the negotiated plea agreement and imposed a one-year probationary term with 180 days in the county jail.
On appeal, defendant argues:
THE PROSECUTOR'S REJECTION OF DEFENDANT'S PTI APPLICATION DEMONSTRATED A PATENT AND GROSS ABUSE OF DISCRETION, AND MUST BE REVERSED.
New Jersey's PTI program is governed by N.J.S.A. 2C:43-12 and the Supreme Court's guidelines for implementation, set forth in Rule 3:28. Generally, individuals with no prior convictions are afforded the opportunity to avoid prosecution by receiving rehabilitative services or supervision. N.J.S.A. 2C:43-12a. A PTI application is initially reviewed by the Criminal Division PTI Director, R. 3:28, however, the decision to admit an applicant to a PTI program rests with the reasoned discretion of the prosecutor. N.J.S.A. 2C:43-12e; see also State v. Nwobu, 139 N.J. 236, 246 (1995).
N.J.S.A. 2C:43-12e identifies seventeen factors for consideration when examining an application for PTI admission. If an application is denied, the prosecutor must provide a statement of findings supporting his or her conclusion. N.J.S.A. 2C:43-12f. A defendant may appeal by moving before the Superior Court to overturn the prosecutor's rejection. Ibid. The burden to "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion" rests with the defendant. State v. Watkins, 193 N.J. 507, 520 (2008) (citations and internal quotation marks omitted). In State v. Bender, 80 N.J. 84, 93 (1979), the Court defined a "patent and gross abuse of discretion" in the context of a prosecutor's denial of a PTI application:
Ordinarily, an abuse will be manifest if defendant can show that a prosecutorial veto (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 judgement.... In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.
[State v. Roseman, 221 N.J. 611, 625 (2015).]
Here, defendant contends that the prosecutor applied a per se impermissible rule of rejecting any individual charged with a driving-related offense. He argues that his conduct was less serious than many driving-related offenses because there were no injuries; no evidence of dangerous driving; he had not been drinking alcohol; and he did not receive a summons for violating other traffic laws. As a result, defendant maintains that the prosecutor failed to consider all relevant factors of N.J.S.A. 2C:43-12e.
The record shows that defendant had an extensive history of involvement in our criminal justice system. See State v. K.S., 220 N.J. 190, 201 (2015) (explaining that an applicant's "continuing pattern of anti-social behavior" is relevant to the prosecutor's PTI determination, even if the behavior includes "less serious conduct"). He had seven DWI convictions; nine DWS convictions; two convictions for operating a motor vehicle while impaired; two speeding convictions; two careless driving convictions; two convictions as an unlicensed driver; a conviction for theft of services; an outstanding bench warrant (pending when the officer pulled defendant over in February 2012); a conviction for disorderly conduct; a conviction for unauthorized use of a vehicle; and he had a final restraining order entered against him.
Prosecutors exercise broad discretion in determining who to admit into PTI. Nwobu, supra, 139 N.J. at 246. As such, we extend "`enhanced'" deference to that decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)). Our "severely limited" review is designed to address "only the `most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). In doing so here, we determine that the prosecutor cogently articulated several reasons for denying PTI. Contrary to defendant's suggestion, the rejection was not the result of a per se impermissible rule of rejecting any individual charged with a driving-related offense. See State v. Caliguiri, 158 N.J. 28, 32 (1999) (barring prosecutor's arbitrary denial of PTI admission based on the charge alone). Moreover, as the judge correctly found, defendant failed to provide "anything which would show that there[] [was] a patent and gross abuse of discretion"[;] thus, defendant has failed to sustain his burden of persuasion.
Affirmed.
