STATE OF NEW JERSEY v. R.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1245-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

R.R.,

Defendant-Respondent.

__________________________________________________

December 19, 2011

 

Argued September 28, 2011 - Decided

 

Before Judges Lihotz, Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-03-0159.

 

J. Vincent Molitor, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Jr., Cape May County Prosecutor, attorney; Mr. Molitor, on the briefs).

 

Joseph J. Rodgers argued the cause for respondent.

 

PER CURIAM

The State appeals from an order enrolling defendant, R.R., into the Pretrial Intervention Program (PTI) in Cape May County over the prosecutor's objection in a case involving an indictable charge of third-degree assault by auto while intoxicated, contrary to N.J.S.A. 2C:12-1(c)(2). The State argues that the motion judge erred by ordering defendant's admission into PTI over the prosecutor's objection. We agree and reverse.

The evidence reflects that, at approximately 2:30 a.m. on May 25, 2009, R.R. was operating his vehicle in North Wildwood when he struck B.P.,1 a pedestrian crossing in a marked crosswalk. When R.R. hit B.P., who was a minor, she "rolled up onto the hood [of his automobile,] striking her head on the windscreen . . . [and was] then launched into the air by the force of [the vehicle,] . . . landing on the other side of the intersection from the [point of] initial impact." B.P.'s injuries required an emergency airlift to a nearby hospital.

R.R. approximated his speed at thirty miles per hour, which was corroborated by witness and accident reconstruction reports. R.R.'s cellular phone history verified he was not on the phone at the time of the incident. He claims his attention was on the road and was not distracted. He asserts he did not "remember seeing a thing, and that all he heard was a thud and remembered that he saw his windshield was shattered." The only witness confirms R.R.'s vehicle "was traveling at a constant rate of speed," without swerving or changing direction at any time until after the collision.

At the scene, police administered a field sobriety test, which R.R. passed. R.R. then consented to providing blood and urine samples for testing. Subsequently, police transported R.R. to police headquarters where he waived his Miranda2 rights and gave a statement.

R.R. explained he had worked from 9:30 a.m. to around 11:00 p.m. that evening and had one beer with a coworker before going home. R.R. stopped at home, then went to a local bar to meet friends, where he had two more beers. R.R. told his friends he was feeling tired and left the bar. The collision occurred on R.R.'s drive home.

Testing revealed R.R. had a blood alcohol content of .124%. Upon receipt of the positive results, police issued three summonses, charging R.R. with driving while intoxicated, N.J.S.A. 39:4-50; failure to yield to a pedestrian, N.J.S.A. 39:4-35; and reckless driving, N.J.S.A. 39:4-96.

B.P. survived the collision, but her injuries required numerous surgeries and medical procedures. Testing showed B.P. was also under the influence of alcohol (.138% BAC) and benzodiazepines at the time she was struck. B.P. has no recollection of the accident or the events that took place prior to or leading up to it. She continues to suffer permanent deficits in terms of memory and cognition.

On March 16, 2010, a Cape May County Grand Jury returned Indictment No. 10-03-0159, charging R.R. with third-degree assault by auto under N.J.S.A. 2C:12-1(c)(2). R.R. entered a plea of not guilty, and filed an application for entry into Cape May County's PTI program.

In a report dated May 18, 2010, Kim Marchelle, the PTI coordinator, supported R.R.'s application and recommended his diversion into the PTI program. Her report explained R.R. was a high school graduate with an associate's degree in hospitality management, who was employed as a server at a local restaurant, and a mail carrier for the United States Postal Service. She noted "[R.R.] expressed the emotional torment this has caused him as well as the remorse he feels. He was very cooperative, submitting requested documentation in a timely manner."

Marchelle then referred to B.P.'s blood results which were positive for drugs and alcohol. She noted the victim crossed the street "within 3.8 feet" of R.R.'s vehicle so that even had "[R.R.] seen the victim, he most likely would not have had enough time to stop." She continued to note the scene had "insufficient lighting with a street light at that intersection unoperational [sic]" and faded crosswalks which are "difficult for drivers to see."

Marchelle also referred to R.R.'s two prior municipal offenses for operating a personal watercraft without a safety certificate in his possession, N.J.S.A. 12:7-61(d), and underage drinking, Wildwood City, Gen. Ordinance 5-8.1. She concluded R.R.'s "minimal criminal history, cooperation with [her,] and the circumstances of the incident" justified diversion to PTI. Marchelle recommended enrollment in PTI for twenty-four months, plus a fee of $50 for enrollment and a $75 Safe Neighborhood Assessment fee.

The prosecutor objected to R.R.'s diversion into PTI in a letter dated May 20, 2010. The prosecutor characterized R.R.'s offense as "a violent crime . . . less appropriate for diversion than a non-violent crime." After discussing the seriousness of B.P.'s injuries, the prosecutor disputed portions of Marchelle's recommendation, including her reliance on B.P.'s intoxication, the characterization of the lighting as "insufficient," and the statement that R.R. could not have stopped his vehicle in time to avoid the collision. Under the heading "motivation and age of the defendant," the prosecutor noted R.R. was twenty-six at the time of the incident and, therefore, "should have known that operating a motor vehicle under the influence can cause serious injuries and deaths." Moreover, the prosecutor asserted R.R. was not remorseful, and that the victim did not approve of R.R.'s diversion.

After again stating the seriousness of B.P's injuries, the prosecutor explained:

it is not in the best interest of society as a whole to allow [R.R.] to avoid any punishment for his crime. People who selfishly decide to operate a motor vehicle under the influence . . . must recognize that it is better that they endure the minor inconvenience of calling a cab or a friend than for someone to be seriously injured or die as a result of their callous attitudes.

 

Further, the letter explained diversion would "exacerbate the problem of drinking and driving[,]" and "send the message that you can operate a motor vehicle under the influence, . . . [cause injuries,] and then somehow get the ensuing charges dismissed and pretend as if you never did anything wrong." The prosecutor concluded R.R. was not suitable for diversion into PTI.

On October 5, 2010, R.R. submitted character references from his family and friends to the court. The letters demonstrated the degree of family and community support for R.R. Because the letters were submitted after the prosecutor's May 20, 2010 letter, they were not considered by the prosecutor in his explanation of his reasons for disapproving R.R.'s application.

Following the prosecutor's objection, R.R. moved for an order to compel his admission to PTI. At the hearing on November 3, 2010, R.R. argued the prosecutor's objection was arbitrary, capricious, and a clear error of judgment because the prosecutor failed to appropriately consider the facts of the case. The prosecutor responded by presenting his reasons for objection which paralleled the May 20, 2010 letter.

The court distilled the prosecutor's argument to four points: (1) the victim suffered serious injury; (2) an example should be set by prosecuting a defendant who drank and drove; (3) defendant exhibited an "unacceptable lack of remorse[;]" and (4) the victim's preference for prosecution. The court noted the prosecutor did not assign weight to other factors including the lack of evidence of anti-social behavior; lack of a substantial criminal record; no evidence of violence towards others; and an unusually high level of familial and community support systems.

The court reviewed the prosecutor's analysis of the factor that considers the "needs and interest of the victim and society," which the prosecutor believed "weigh[ed] heavily in favor of denial [of R.R.'s PTI application]." The court considered the prosecutor's position to constitute "a pretty strong endorsement of per se ineligibility for people who drink and drive and cause serious bodily injury and that kind of per se exclusion . . . is generally not permitted."

Moreover, the court viewed the prosecutor's letter as lacking objectivity and conveying an overall "sense of umbrage," inconsistent with the balancing of interests required in PTI analysis. Concluding, the court noted the prosecutor "considered all of the prescribed statutory factors, [but] some of them received very inappropriate weighing, either too much [(victim's injuries, lack of remorse)] or not enough [(amenability to supervision, lack of violent history)]."

Following oral argument on November 3, 2010, the motion judge ordered R.R.'s admission into PTI. The State filed the notice of appeal on November 4, 2010. On November 24, 2010, the State moved to consolidate this case with another matter. In an order dated January 20, 2011, we denied the motion to consolidate, but calendared the cases for back-to-back argument.

Diversion from prosecution to PTI requires a positive recommendation from the PTI director plus the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). Our Supreme Court has issued guidelines to limit prosecutorial discretion regarding PTI admission. Pressler and Verniero, Current N.J. Court Rules, Guidelines for Operation of Pretrial Intervention in New Jersey Under R. 3:28 (2012) (Guidelines). Moreover, the Legislature codified statutory factors to be considered. N.J.S.A. 2C:43-12(e). Under the Guidelines, "[a]ny defendant accused of a crime shall be eligible for admission into a PTI program." Current N.J. Court Rules, supra, Guideline 2 to R. 3:28. However, the Guidelines present a nuanced approach identifying those circumstances where there exists a presumption against diversion. Important to this matter, the Guidelines require an "assessment of the nature of the offense" stating:

If the crime was (1) part of organized criminal activity; (2) part of a continuing criminal business or enterprise; (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's applications should generally be rejected.

 

[Id. at Guideline 3(i).]

 

Even in situations where the applicant "should ordinarily not be considered for enrollment[,]" the applicant has the opportunity to submit facts or materials tending to establish "a decision against enrollment would be arbitrary and unreasonable." Ibid.

If the PTI director recommends an applicant for admission but the prosecutor objects, the prosecutor must present a written statement of reasons for the veto. State v. Negran, 178 N.J. 73, 82 (2003) ("That writing requirement is intended to facilitate judicial review . . . and dispel suspicions of arbitrariness."); N.J.S.A. 2C:43-12(f); Current N.J. Court Rules, supra, Guideline 8 to R. 3:28. Relevant criteria, "among others," include:

(1) The nature of the offense;

 

(2) The facts of the case;

 

(3) The motivation and age of the defendant;

 

(4) The desire of the complainant or victim to forego prosecution;

 

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

 

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

 

(7) The needs and interests of the victim and society;

 

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

 

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

 

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

 

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

 

(12) The history of the use of physical violence toward others;

 

(13) Any involvement of the applicant with organized crime;

 

(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;

 

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

 

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants; and

 

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

 
[N.J.S.A. 2C:43-12(e). See also State v. Brooks, 175 N.J. 215, 226 (2002) (explaining the statute lists these factors as "among others," permitting consideration of other non-enumerated factors).]

 

The written objection must be more than mere "parrot[ing]" of the statutory language and must outline the prosecutor's reasoning and conclusions why PTI is inappropriate under the circumstances. State v. Caliguiri, 158 N.J. 28, 36-37 (1999) (Caliguiri II); State v. Sutton, 80 N.J. 110, 117 (1979). The prosecutor may assume guilt when a defendant claims innocence and properly consider facts established by the evidence without becoming involved in deciding other factual disputes. State v. Ridgway, 208 N.J. Super. 118, 127 (Law Div. 1985).

As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). A prosecutor's decision to refuse to consent to the diversion of a particular defendant is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). Thus, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384).

Accordingly, a defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI Program] was based on a patent and gross abuse of his [or her] discretion." Leonardis II, supra, 73 N.J. at 382. To demonstrate a patent and gross abuse of discretion, the defendant must show:

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. 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].

 

[Negran, supra, 178 N.J. at 83 (quoting Bender, supra, 80 N.J. at 93).]

 

This highly deferential standard ensures that the separation of powers between the executive and judicial branch remains intact. N.J. Const. art. III, 1; State v. Dalglish, 86 N.J. 503, 513 (1981); Leonardis II, supra, 73 N.J. at 369.

The question presented is not whether a reviewing court would have come to the same conclusion as the prosecutor, but whether the prosecutor's "evaluation of the situation and balance of the factors amounted to a clear error of judgment[]" by him in denying R.R.'s admission to PTI. State v. Wallace, 146 N.J. 576, 589 (1996). See also Nwobu, supra, 139 N.J. at 254 ("The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors."); DeMarco, supra, 107 N.J. at 567 (stating that simply because an objection to admission to PTI is "harsh," such an objection does not justify admission over the veto).

In State v. Moraes-Pena, 386 N.J. Super. 569, 571 (App. Div.) certif. denied, 188 N.J. 492 (2006), the defendant was charged with assault by auto while intoxicated and leaving the scene of the accident, in addition to other motor vehicle offenses. After the motion court remanded the case to the prosecutor for elaboration on the relevant factors, it ordered the defendant to PTI over the prosecution's continued objection. Id. at 573-75.

The prosecutor claimed the "offense was deliberately committed with . . . [the] threat of violence against another person which constitutes grounds for rejection under the guidelines for operation of [PTI] in New Jersey." Id. at 571-72. The prosecutor also assigned significant weight to the character of the offense, finding admission into PTI "would deprecate the serious nature of the offense[,]" and "undermine the efforts of the Prosecutor's Office . . . to combat drunk driving." Id. at 572; 573. Moreover, the prosecutor stressed the significant injuries the victim sustained, the lack or remorse shown by the defendant's failure to "check on the condition of the victim or offer assistance[,]" the lack of cooperation in investigating the offense and, finally, the defendant's alien status. Ibid. The trial court overruled the prosecutor's veto finding "too much emphasis" was placed on the intoxication element in the nature of the offense, a fact which was disputed. Id. at 577. Reversing, we explained it was not "arbitrary, irrational or otherwise an abuse of discretion for the prosecutor to have assigned as much weight to the gravity of the offense as he apparently did in this case." Id. at 582 (internal quotations omitted).

A categorical exclusion from PTI based solely on the nature of the offense without consideration of the individual defendant is patently and grossly arbitrary. State v. Caliguiri, 305 N.J. Super. 9, 17 (1997) (Caliguiri I). In Caliguiri I, a consolidated case, one of the defendants was indicted for assault by auto while intoxicated. Id. at 16-17. The prosecutor did not provide a statement of reasons for the denial of PTI but stated:

[D]iversion in cases such as this would only serve to undermine the joint efforts of [the prosecutor's office] and the sentencing courts in this [c]ounty to create an atmosphere wherein it is always known that persons who drink to the excess and injure others by driving their vehicles when they are under the influence of alcohol will face vigorous prosecution for their conduct. Any other result would be a disservice to the public interest.

 

[Id. at 17.]

 

Affirming the motion court's order compelling admission to PTI, we agreed the prosecutor arbitrarily rejected the defendant solely based on the category of the offense (assault by auto) without analyzing the guidelines and statutory factors "of the offense and the offender." Ibid.

With these principles in mind, we review the judge's decision to overturn the prosecutor's rejection of defendant from PTI.

Like the prosecutor in Moraes-Pena, supra, 386 N.J. Super. at 571, the prosecutor's rejection of R.R.'s application for PTI was predicated on specific enumerated statutory factors and considerations identified in the Guidelines and applicable to the facts of his case. The prosecutor considered every factor, including mitigating factors, and did not categorically exclude assault by auto offenses from PTI. Unlike Caliguiri I, supra, 305 N.J. Super. at 17, the prosecutor considered the Guidelines and enumerated statutory factors to come to the conclusion R.R. was not suitable for PTI. Exceeding mere policy considerations underlying the veto in Caliguiri I, the prosecutor considered relevant and rational evidence in the record. See Moraes-Pena, supra, 386 N.J. Super. at 574 (citing Ridgway, supra, 208 N.J. Super. at 127 (explaining that a prosecutor may assume guilt and consider facts established by the evidence)). In accordance with Ridgway, the prosecutor assumed guilt and based his rejection on evidence found in police reports, accident reconstruction reports, and B.P.'s hospital records. Supra, 208 N.J. Super. at 127.

Moreover, the prosecutor considered R.R. as an individual, including his age and his failure to inquire about the victim. The prosecutor also noted those mitigating factors weighing in favor of diversion, including R.R.'s lack of anti-social behavior pattern, his lack of "remarkable" criminal record, his lack of history of violence towards others, and his non-involvement with organized crime, other crimes, or other codefendants. The prosecutor's analysis comprehensively considered all facts in determining that R.R. was not suitable for PTI. Although he minimally commented on the extent to which R.R. would be amenable to rehabilitation, the prosecutor did consider the absence of substance abuse problems and the isolated nature of this violent conduct.

In his analysis of the prosecutor's veto letter, the motion judge characterized as erroneous the prosecutor's assertion that R.R.'s act of applying for PTI constituted a lack of remorse. Although we agree with the motion judge that consideration of an offender's application for PTI does not, in and of itself, demonstrate lack of remorse, that reason was only one among several expressed by the prosecutor demonstrating R.R.'s lack of remorse.

Given the completeness of the analysis of the Guidelines and applicable statutory factors in the prosecutor's veto letter, R.R. has not clearly and convincingly established that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of discretion. Further, we cannot say that it was "'arbitrary, irrational or otherwise an abuse of discretion' for the prosecutor to have assigned as much weight to the gravity of the offense as [he] apparently did in this case." Wallace, supra, 146 N.J. at 589.

T

he order admitting R.R. into PTI is reversed, and the matter is reversed and remanded for further proceedings consistent with this opinion.

1 To preserve the victim's privacy, we will refer to her by initials.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).