STATE OF NEW JERSEY v. ANNA TRINIDAD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2592-04T42592-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANNA TRINIDAD,

Defendant-Appellant.

__________________________________

 

Submitted: November 28, 2006 - Decided December 13, 2006

Before Judges Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 02-04-0925.

Yvonne Smith Segars, Public Defender, attorney for appellant (Randall J. Peach, Designated Counsel, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Karen Kazanchy, Assistant Prosecutor, on the brief).

PER CURIAM

After pleading guilty to one count of third-degree aggravated assault and driving while intoxicated (DWI), defendant Anna Trinidad appeals from the Law Division's denial of her admission into the Pre-Trial Intervention (PTI) Program. We affirm.

On September 24, 2001, at approximately 1:30 a.m., defendant exited a local bar with her boyfriend, who had asked her to drive. Defendant attempted a u-turn from a street-side parking spot, cutting off a motorcycle traveling north on Bergenline Avenue and causing it to collide with the front end of the driver side of the automobile. Both passengers of the motorcycle were ejected and found at a point further up the street. The driver of the motorcycle, Wilson Maldonado, sustained several broken bones, for which he subsequently underwent rehabilitation. The passenger of the motorcycle, Zulema Flores, was in a coma for two weeks, spent five weeks in the hospital, and continued to suffer mental lapses, resulting in her losing her job. Defendant initially wavered in her statements to the police about whether she had been the driver of the vehicle that caused the accident, but eventually admitted she had been. Defendant's boyfriend fled the scene following the accident. The car was apparently stolen and the police found a $1 bill in the motor vehicle with suspected cocaine residue. The toxicology analysis later revealed that defendant's blood alcohol level was 0.165%.

According to an eyewitness, Emilio Quesada, the motorcycle was "cruising at a high rate of speed" when it bounced off the left driver fender of the car, and the two passengers on the bike flew over the hood of the car. He observed the female passenger laying face down in the middle of the street and the man hovering over her, and remained with them until the police arrived. Quesada also recounted that defendant, who was standing against the fence near where the car was parked, stated to him, "oh my God, call 911 please," then she ran into the bar.

Defendant was charged under a Hudson County Grand Jury Indictment with two counts of fourth-degree aggravated assault by recklessly operating a motor vehicle and causing serious bodily injury, two counts of third-degree aggravated assault by operating a motor vehicle while under the influence of alcohol and causing serious bodily injury, one count of possession of CDS and one count of receipt of stolen property (an automobile). Defendant was also charged with the non-indictable offense of DWI. Defendant, who had no prior criminal history, applied for admission into PTI. On July 15, 2002, the Criminal Division Manager (CDM) recommended her application be denied, considering the criteria listed in Rule 3:28 and N.J.S.A. 2C:43-12(e). His report mentions the nature of the offense, listing four counts of aggravated assault, possession of CDS and receipt of stolen property, N.J.S.A. 2C:43-12(e)(1), and the facts of the case, referring to the police report, N.J.S.A. 2C:43-12(e)(2). As to N.J.S.A. 2C:43-12(e)(3), the motivation and age of the defendant, the CDM states:

The defendant is a 25 year old female who is charged with very serious offenses, and during the interview minimized the severity of the charges. Ms. Trinidad did not appear very remorseful for her actions, and attempted to blame them on the driver of the motorcycle, and the passenger of the vehicle she was driving.

Ms. Trinidad stated that she was unaware that the vehicle was stolen or that there were drugs in the car. She stated that her boyfriend at the time, who was the passenger in the vehicle she was driving, asked her to drive, when they left the bar.

As to N.J.S.A. 2C:43-12(e)(7), the needs and interests of the victim and society, the CDM states that "defendant was driving recklessly, and injured two people who were on a motorcycle." Concerning N.J.S.A. 2C:43-12(e)(10), whether the crime was of an assaultive or violent nature, the CDM recognizes that defendant did not have a past criminal history but notes she was charged with four counts of aggravated assault. By letter of July 18, 2002, the Hudson County Prosecutor concurred in the CDM's decision to reject defendant's application, inferentially adopting his reasoning.

Defendant appealed to the Law Division, moving to compel her admission into PTI. Judge Kracov opined that the prosecutor's decision to deny defendant's admission was reasonable, but directed the State to supplement its denial letter. Specifically, the judge noted that a more detailed finding should include, for example, what in the police report specifically weighed on the CDM's decision or what the resulting damages were.

Following several adjournments, the CDM filed a supplemental memorandum on June 27, 2003, explaining the basis for denial of defendant's PTI application. The supplemental memorandum referenced defendant's high blood alcohol level at the time of the accident, 0.165%, which had not been mentioned in the initial recommendation. The CDM further noted that, in her interview, defendant had "tried to deflect all responsibility for the incident," thus "[i]t appears that the investigating probation officer found that [defendant] lacked the motivation to successfully complete PTI." The memorandum concluded: "[w]e believe that [defendant] would benefit from a stricter period of supervision than that offered by PTI."

Following oral argument, Judge Callahan denied defendant's application for admission into PTI on March 16, 2004. The judge determined, after giving deference to the decision of the prosecutor, that defendant had not overcome the heavy burden of proving to the court the rejection was inappropriate and the prosecutor's decision was unreasonable, arbitrary, or capricious. Judge Callahan found:

The Director also relied on the facts of the case and the injuries the victim suffered. Both victims suffered what appeared to be serious injury, including a coma, and the other numerous broken bones that required weeks of rehabilitation, and according to the State, is still having difficulty. The nature of the offenses was very serious, and do not warrant under any circumstances entry into PTI.

Defendant appears to deflect partial responsibility for this offense by blaming the person who reportedly ran away from the incident with the keys to the car. This is also a factor, that is, a motivation of the defendant, which the Director considered it, and I will not overturn that consideration when they rejected it. It is of no moment that someone else may have been involved. Ms. Trinidad's B.A.C. was well over the legal limit, and she was in a stolen car. The Director was left with the opinion that she was not remorseful towards her actions. Sometimes those actions are the most telling.

. . . .

This is a terrible case. Terrible injuries to the victims, terrible actions on behalf of the defendant, reckless actions on behalf of the defendant, drinking, drugs, injuries. Although the court appreciates that Miss Trinidad is taking positive steps, and is employed and continues to strive to be a productive member of society, I cannot overlook the seriousness of the charges. Because the Prosecutor's decision is entitled to great deference under State v. Nwobu, 139 N.J. 235 (1995), this Court finds that the defendant has not clearly and convincingly established the Prosecutor's refusal to sanction the admission into PTI was based on a patent and gross abuse of discretion. State v. Wallace, 146 N.J. 582. The Prosecutor has related this to the individual, Miss Trinidad, in terms of both what is found by the Administrative Director of P.T.I. when she had the interview conducted, and also by the State looking at the totality of the circumstances.

For all of those reasons, the State's met its burden, it wasn't patent and gross, and I cannot disturb it.

Defendant then entered the negotiated guilty plea and filed this appeal.

On appeal, defendant argues that because the prosecutor merely relied upon the CDM's reasons for denial, rather than conducting his own individualized assessment of defendant's application, we should consider the appeal under the "preponderance of evidence" standard that the CDM acted in an arbitrary manner amounting to an abuse of discretion, and not apply the enhanced "patent and gross abuse of discretion" standard applicable to prosecutors. Defendant further argues that in denying PTI the prosecutor and trial judge relied solely on the nature of the offense (drunk driving), considered irrelevant and inappropriate mitigating factors as evidence of her failure to accept responsibility, and failed to analyze whether or not she would be an otherwise qualified candidate for PTI based on her clean record. As an alternative to reversing the trial court's decision and admitting defendant into PTI, defendant requests we remand the matter to the prosecutor and CDM for a full consideration of the factors supporting defendant's entry into PTI, according to the statutory criteria.

Both the CDM and prosecutor recommended denial of defendant's PTI application. In State v. Nwobu, 139 N.J. 236, 249-50 (1995), the Court recognized that the prosecutor may adopt the reasoning of the CDM, provided the reasons for rejection of the PTI application are stated with "sufficient specificity so that defendant has a meaningful opportunity to demonstrate that they are unfounded." We are satisfied the CDM's statement of reasons did not simply "parrot" the language of the relevant statutes, rules, and guidelines, State v. Sutton, 80 N.J. 110, 117 (1979), and provided sufficient details within each relevant category to afford defendant the opportunity to prepare a response and to facilitate effective judicial review. State v. Leonardis, 71 N.J. 85, 114-15 (1976) (Leonardis I). As such, defendant is held to the higher standard of enhanced deference and in order to overturn the prosecutor's determination not to divert her into the PTI program, she must prove clearly and convincingly "that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of his discretion." State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II). To meet the standard of "patent and gross abuse of discretion", a defendant must show the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a clear error in judgment, and the error will clearly subvert the goals underlying PTI. State v. Bender, 80 N.J. 84, 93 (1979).

The enhanced deference is a result of "the need to preserve prosecutorial discretion in deciding whether to divert a particular defendant from the ordinary criminal process." State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). Accordingly, the scope of the trial and appellate court's review is "severely limited." Ibid. (citations omitted). There is an expectation a prosecutor's decision in this regard "rarely will be overturned," and "judicial review, in actuality, exists 'to check only the most egregious examples of injustice and unfairness.'" Ibid. (citations omitted).

We are satisfied the prosecutor's denial of defendant's admission into PTI was not based solely on the fact that she was involved in a DWI and legitimately mentioned to the probation investigator the mitigating circumstances that her boyfriend requested she drive and the eyewitness observed the motorcycle was speeding. Rather, defendant had a very high blood alcohol reading, drove recklessly, two people were seriously injured, and she initially wavered in admitting to the police that she had been the driver of the automobile. Moreover, contrary to her claim, defendant did not stay with the victims until 911 came. Rather, according to the eyewitness, she stood by the car, told him to call 911 and ran into the bar. Additionally, the only indication in the record that defendant expressed remorse was the judge's statement at sentencing that she "shows remorse, she'll likely respond to probation. . . ." It was clear that defendant's lack of prior involvement with the criminal justice system was a significant factor in the plea bargain and the prosecutor's acquiescence in a probationary sentence. It was not, however, a sufficient factor to justify defendant's admission into the PTI program under the circumstances of this case. He cannot conclude that the prosecutor's decision was unjust or unfair.

 
Affirmed.

Pursuant to the plea agreement, on March 16, 2004, defendant pled guilty to one count of third-degree aggravated assault and DWI. On May 14, 2004, she was sentenced to two years probation, 500 hours of community service or a completion of her GED, continued employment and random urine testing. On the DWI, defendant received a six-month loss of license, fines and penalties, and twelve hours IDRC.

Defendant testified that immediately after the accident, she tested negative for any drugs in her system and the only reference to drugs in the case was the $1 bill found in the car with trace elements of cocaine, of which she was unaware. The record does not reflect a belief by the trial judge that defendant was under the influence of drugs at the time of the accident.

(continued)

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A-2592-04T4

December 13, 2006