pit rejected where driver had 5 dws State v Sharp STATE OF NEW JERSEY,
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Submitted May 15, 2013 – Decided
Before Judges Grall and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 12-04-0394.
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for appellant (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Plaintiff State of New Jersey appeals from the November 2, 2012 Law Division order, which granted the motion of defendant Lori Sharp to compel entry into the Cumberland County pre-trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12f. We reverse.
Prior to August 2011, defendant was convicted three times of driving while intoxicated (DWI), N.J.S.A.39:4-50.1 Defendant's last DWI conviction in November 2002 resulted in a ten-year driver's license suspension. After that suspension, defendant was convicted four times of driving when her license was suspended (DWS), N.J.S.A. 39:3-40.2
On August 24, 2011, defendant was charged with her fifth DWS. A grand jury subsequently indicted her on two counts of fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A.2C:40-26a and b.
N.J.S.A. 2C:40-26a provides:
It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of [N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked for a first violation of [N.J.S.A.] 39:4-50 or [N.J.S.A.39:4-50.4a] and the actor had previously been convicted of violating [N.J.S.A.] 39:3-40 while under suspension for that first offense. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
N.J.S.A. 2C:40-26b provides:
It shall be a crime of the fourth degree to operate a motor vehicle during the period of license suspension in violation of [N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked for a second or subsequent violation of [N.J.S.A.] 39:4-50 or [N.J.S.A.] 39:4-50.4a. A person convicted of an offense under this subsection shall be sentenced by the court to a term of imprisonment.
There is a fixed minimum sentence of not less than 180 days without parole for a conviction under either provision. N.J.S.A. 2C:40-26c.
Defendant applied for admission into PTI. The criminal division manager determined she was an inappropriate PTI candidate and rejected her application. The prosecutor subsequently issued a written decision denying the application. As reasons for the denial, the prosecutor cited the nature of the offense, the facts of the case, and whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society by channeling an offender into a supervisory treatment program. N.J.S.A.2C:43-12e(1), (2) and (17).
In her decision, the prosecutor noted that the Legislature had recently passed N.J.S.A. 2C:40-26 to treat the crime of DWS for DWI seriously by mandating a period of incarceration. Relying on defendant's driving record, the prosecutor concluded that
defendant's amenability to rehabilitation is outweighed by [the fact] that this defendant is the exact type of actor the [L]egislature sought to address when enacting [N.J.S.A. 2C:40-26] because she is someone who has repeatedly ignored an order of driver's suspension and has continued to drive a vehicle in disregard of it. Since a ten (10) year order of suspension for a third DWI was not enough to specifically deter the defendant from driving (in obeyance (sic) of the law), prosecution of this case is necessary to do so.
Defendant filed a motion to compel admission into PTI. The trial judge granted the motion, holding that the prosecutor patently and grossly abused her discretion by finding that the offense with which defendant was charged made her ineligible for PTI. The judge found that the prosecutor failed to consider relevant factors - that defendant was fifty years old, had no criminal history and had taken steps toward rehabilitation; and improperly considered irrelevant or inappropriate factors - that defendant was ineligible for PTI because the Legislature passed N.J.S.A. 2C:40-26 to address actors like her. This appeal followed.
We have held that
PTI is a diversionary program designed to "augment the options of prosecutors in disposing of criminal matters . . . [and] provide applicants 'with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'"
[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (alteration in original) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).]
To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
In making a PTI determination, the prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. State v. Negran, 178 N.J. 73, 80-81 (2003). As part of that determination, the prosecutor must assess a defendant's "amenability to correction," potential "responsiveness to rehabilitation," and the nature of the offense charged. State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12b); State v. Bender, 80 N.J. 84, 89 (1979).
A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." Watkins, supra, 193 N.J. at 520 (citing State v. Nwobu, 139 N.J. 236, 246-47 (1995)). 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.'" State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff’d,193 N.J. 507 (2008)). "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.'" Watkins, supra, 193 N.J. at 520 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "Ordinarily, an abuse of discretion 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 judgment." Bender, supra, 80 N.J. at 93.
Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82. We afford the prosecutor's decision great deference. Wallace, supra, 146 N.J. at 589; State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). For that reason, "[t]he scope of judicial review of a decision to reject a PTI application is 'severely limited.'" Hoffman, supra, 399 N.J. Super. at 213. A trial court can only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. Kraft, supra, 265 N.J. Super. at 112-13.
We conclude that the judge erred in finding that the prosecutor's decision to deny defendant PTI admission was a patent and gross abuse of discretion. The judge mischaracterized the prosecutor's reference to the Legislature's intent to apply N.J.S.A. 2C:40-26 to drivers like defendant as the prosecutor's sole reason for denying defendant PTI admission. The prosecutor had actually determined that defendant was an unacceptable candidate for PTI admission based on her abysmal driving record of three DWI convictions and four DWS convictions, which indicated a pattern of anti-social behavior and lack of amenability to rehabilitation. A prosecutor may consider an applicant's past driving record to establish a pattern of anti-social behavior where, such as here, the offenses are not too temporally distant. Negran, supra, 178 N.J. at 84-85.
In any event, we see nothing improper in the prosecutor's statement that the Legislature's enactment of N.J.S.A. 2C:40-26 indicated its intent to treat the crimes of DWS for DWI seriously. The prosecutor did not apply a per se rule to reject every person who violates the statute; rather, the prosecutor was opining, and rightfully so, that drivers, such as defendant, who have multiple convictions of DWS for DWI, are not appropriate for PTI admission.
1 Defendant was convicted of DWI on April 13, 1992, March 25, 1994, and November 8, 2002.
2 Defendant was convicted of DWS on January 24, 2004, May 16, 2006, June 19, 2007, and October 12, 2011.