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Tuesday, April 05, 2016

PTI for 2c:40-26 requires prosecutor consent State v Kerr

PTI for 2c:40-26 requires prosecutor consent State v Kerr





February 25, 2015

Submitted January 21, 2015 – Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-07-1631.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).


Defendant appeals from a judgment of conviction, for driving during a period of license suspension for a third violation of N.J.S.A. 39:3-40, a fourth-degree offense, N.J.S.A. 2C:40-26(b). In particular, defendant argues that the prosecutor's rejection of defendant from Pretrial Intervention (PTI), was a gross abuse of the prosecutorial function. We affirm.
We discern the following facts from the record. Defendant was driving with a suspended license and was involved in an auto accident, hitting another car in an intersection. He had three prior municipal convictions for driving under the influence, and a ten-year license suspension imposed in 2002. He was indicted for a violation of N.J.S.A. 2C:40-26.
Defendant applied for PTI and the PTI director in Atlantic County issued a favorable recommendation for his entry into PTI, but the Atlantic County Prosecutor rejected his application. The prosecutor's reasons for the denial were the nature of the offense, the facts of the case, 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, 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. Moreover, the prosecutor noted that the Legislature had determined to impose a mandatory sentence without parole for violations of N.J.S.A. 2C:40-26 to deter such conduct, and the need to deter would be undermined if someone charged with this misconduct were permitted to escape prosecution through a diversionary program. The prosecutor also noted that
[a]lthough there is no rule that excludes consideration for these cases, certainly it is an aggravating factor in the decision whether to divert a case. This defendant has multiple driving under the influence convictions. Despite receiving prior sanctions and a license suspension for [ten] years, the defendant still continues to drive and became involved in a motor vehicle accident with injuries . . . It is the State's position that there is a great need to deter this defendant from future misconduct by formal criminal prosecution.

The prosecutor acknowledged that this would be defendant's first indictable conviction and that defendant was remorseful, but did not find that those factors outweighed the strong need to deter.
Defendant moved to compel entry into the program, but his application was denied. On July 22, 2013, defendant pled guilty but expressly reserved the right to appeal the denial of his entry into PTI. Defendant was sentenced, on August 23, 2013, to 180 days in jail, a two-year term of probation, $910 in restitution for automobile damage, two years suspended driving privileges, as well as penalties and fines. The trial judge set bail pending appeal and stayed the jail sentence pending appeal. This appeal followed.

On appeal, defendant argues the following:

A. The prosecutor improperly denied PTI solely on the Nature of the Offense (Criteria 1) and Failed to Consider Defendant's Individual Circumstances as Required by Guideline 2 of [Rule] 3:28.

B. The Prosecutor failed to Consider All Relevant Factors.

C. The Prosecutor's Rejection Was Based on Irrelevant or Inappropriate Factors.

D. The Prosecutor Engaged in a Patent and Gross Abuse of Discretion In Denying the PTI Application Based on a Categorical Exclusion of All Defendants Charged With Driving With a Suspended License.

E. The Prosecutor Engaged in a "Clear Error of Judgment" When She Improperly Rejected Defendant's PTI Application Based on False Facts Not in the Record and Improperly Double[-]Counted an Element of the Offense.

F. The Prosecutor Improperly Rejected Mr. Kerr from PTI by Improperly Citing His Driving History as Outweighing the Value of Supervisory Treatment. 

G. The Prosecutor's Rejection of Mr. Kerr's PTI Application Subverted the Public Purpose Underlying Pre-Trial Intervention.

We have considered the arguments in light of the record, together with the applicable legal precedents, and find them unpersuasive. 
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 39:4-50.4a and the actor has 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.

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 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 mandatory jail sentence of not fewer than 180 days without parole for a conviction under either provision.  N.J.S.A. 2C:40-26(c). 
Admission into the PTI program is based on a favorable recommendation from the PTI director and the consent of the prosecutor.  State v. Nwobu139 N.J. 236, 246 (1995). In determining whether to recommend or consent to admission, the PTI director and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12(e). The statutory list is not exhaustive and additional relevant factors may also be considered.  State v. Negran178 N.J. 73, 84 (2003); State v. Brooks175 N.J. 215, 226-27 (2002), overruled on other grounds by State v. K.S., __ N.J. __ (2015) (slip op. at 5-6).
The scope of judicial review of a prosecutor's determination is severely limited.  Nwobusupra, 139 N.J. at 246; State v. Hermann80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute.  Nwobusupra, 139 246. Courts grant enhanced or extra deference to the prosecutor's decision.  Ibid.
"Judicial review serves only to check the most egregious examples of injustice and unfairness."  Negransupra, 178 N.J. at 82 (citation and quotation marks omitted). A reviewing court may order a defendant into PTI over a prosecutor's objection only if the defendant "clearly and convincingly establish[es] that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse" of discretion.  State v. Wallace146 N.J. 576, 582 (1996) (citation and quotation marks omitted).
An abuse of discretion is manifest if defendant shows that a prosecutorial veto (a) was not premised upon consideration of all relevant factors, (b) was based upon consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. Id. at 583. 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 PTI.  State v. Bender80 N.J. 84, 93 (1979). Absent evidence to the contrary, a reviewing court must assume the prosecutor considered all relevant factors in reaching its decision.  State v. Dalglish, 86 N.J. 503, 509 (1981).
Defendant argues that the prosecutor did not consider his efforts at rehabilitation, lack of criminal history, or disability status, and imposed an automatic exclusion for a violation of N.J.S.A. 2C:40-26. However, the prosecutor did not apply a per se rule to reject every person who violates N.J.S.A. 2C:40-26, but considered other relevant factors, including that this was defendant's first indictable charge and defendant was remorseful.
Moreover, it was within the prosecutor's discretion to consider the sentencing mandate in evaluating the nature of the offense. The nature of an offense is one of the factors prosecutors are required to consider.  N.J.S.A. 2C:43-12(e)(1). A consideration of the nature of an offense involves determining how best to promote punishment in proportion to the seriousness of an offense.  See State v. Bolvito217 N.J. 221, 233 (2014). The legislative history of N.J.S.A. 2C:40-26 indicates that the penalty for such conduct was increased from a potential jail term of between ten and ninety days to a mandatory term of 180 days in response to "reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior [driving under the influence] violations, who nevertheless were driving with a suspended license."  State v. Carrigan428 N.J. Super. 609, 613-14 (App. Div. 2012), certif. denied213 N.J. 539 (2013).
The Legislature clearly established that a greater punishment is needed to be proportionate to the offense here, which is relevant to the prosecutor's consideration of the nature of the offense.  See Bolvitosupra, 217 N.J. at 233. It was therefore not a patent or gross abuse of discretion for the prosecutor to note the Legislature's action, nor was it an improper double-counting of an element of the offense, as defendant suggests.
Defendant asserts that the prosecutor relied on an inaccurate assertion that the victim suffered from minor injuries as a result of the collision. While the record fails to establish the extent, if any, of the injuries suffered, we do not consider the prosecutor's reliance on this assertion to be such an abuse of discretion as to require reversal. Defendant's remaining arguments regarding the prosecutor's consideration of defendant's driving record and the public purpose of PTI are without sufficient merit to warrant discussion.  R. 2:11-3(e)(2).
We discern no abuse of discretion in the prosecutor's denial of defendant's application, let alone one that is patent and gross. We conclude that the trial court correctly found that the prosecutor had considered the relevant factors and exercised permissible discretion in the determination that defendant be subject to formal criminal prosecution.