STATE OF NEW JERSEY v. CUPERTINO GARCIA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5275-09T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CUPERTINO GARCIA,

Defendant-Respondent.

May 2, 2011

Submitted February 28, 2011 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-1952.

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for appellant (Priya P. Ramrup, Assistant Prosecutor, on the brief).

Gonzalez & Caride, attorneys for respondent (Peter Aguado, on the brief).

PER CURIAM

The Hudson County Prosecutor appeals a June 11, 2010 Law Division order admitting defendant Cupertino Garcia into the pretrial intervention (PTI) program over his objection. The Criminal Division Manager recommended defendant's rejection from PTI because of his status as an illegal alien, a relevant but not conclusive factor under State v. Liviaz, 389 N.J. Super. 401 (App. Div.), cert. denied, 190 N.J. 392 (2007). In a one-sentence letter, the prosecutor agreed. After consideration of the reasons for defendant's rejection, we concur with the court's order, substantially for the reasons stated in Judge Lourdes I. Santiago's cogent written opinion of June 11, 2010, and thus we affirm.

Defendant has lived in this country for over twenty years. In order to be able to work as a limousine driver, it is alleged he obtained a driver's license in the name of Carlos Palacios.

In the summer of 2009, the real Carlos Palacios was informed that his car insurance premiums were high because of his driving history. As a result, he obtained a copy of his motor vehicle abstract and learned that someone using his name had been involved in motor vehicle accidents on October 28, 2006, January 14, 2007, and August 14, 2007. Palacios actually was the driver during a fourth accident listed on the abstract, which occurred on April 29, 2006.

The resulting police investigation led to the limo company for which defendant worked, and the authorities quickly ascertained the person unlawfully using Palacios's name most likely worked as a driver for that particular company. Defendant was soon located and charged. He made arrangements through counsel to turn himself in on July 30, 2009, and was thereafter indicted for fourth-degree wrongful impersonation, N.J.S.A. 2C:21-17(a)(4).

On February 17, 2010, defendant's application for admission into PTI was rejected by the Hudson County Criminal Division Manager's office. The rejection letter states:

The defendant is not recommended to the [PTI] program for the following reason:

The nature of the offense, [N.J.S.A.] 2C:43-12(e)(1):

The defendant has been living illegally in the United States for 20 years and has made no attempt to address his illegal status and live in this country according to the Immigration Laws. The nature of the offense in which the defendant used another person's legitimate driver's license in an attempt to keep his job was an attempt to further his living in this country illegally and circumvent the immigration laws. It also caused great inconvenience to the victim.

The Hudson County Prosecutor's Office formally agreed with the Criminal Division Manager's recommendation on March 2, 2010. That rejection letter, addressed to the Division Manager's office and copied to defense counsel, states in its entirety:

We have reviewed the decision made by you in the above referenced application for enrollment into the Hudson County [PTI] Program and concur with your decision to reject the application.

Thank you for your attention to this matter.

Defendant thereafter appealed the decision to the Law Division judge designated to hear such matters pursuant to the guidelines, oral argument was conducted, and the judge ordered defendant into PTI. In doing so, the court relied on the principle clearly enunciated in Liviaz that "PTI may not be denied solely because a defendant is an illegal alien . . . ." 389 N.J. Super. at 403.

As Judge Santiago perceived it, the complete lack of discussion or consideration of defendant's individual characteristics or the details of the offense made it clear that, although unstated, this application was denied because of a sub silentio rule barring illegal aliens from admission to PTI. Other than iteration of defendant's immigration status, the only reason given for denial was the harm done to the victim, which is inherent in any crime. Because an individualized assessment was not made, consideration was not given to defendant's amenability to rehabilitation, none of the relevant guidelines were discussed, and this crime was not presumptively excluded from PTI, the judge ordered defendant's admission into the program.

We ordinarily accord substantial deference to prosecutors in their PTI decisions and limit reversals to only those cases where a "patent and gross abuse of discretion" has occurred. State v. Nwobu, 139 N.J. 236, 246-47 (1995). The burden is on the defendant to establish that his rejection from the program is a clear error of judgment. State v. Negran, 178 N.J. 73, 82-83 (2003).

In reviewing PTI applications, prosecutors must consider an individual defendant's characteristics as they impact on amenability to rehabilitation, in addition to the nature of the offense. See N.J.S.A. 2C:43-12(e); R. 3:28; Nwobu, supra, 139 N.J. at 255. That did not occur in this case.

As Judge Santiago aptly observed, entirely absent from the Criminal Division Manager's consideration of defendant's application was a discussion of the fourteen factors to be considered in making the decision to admit into, or deny PTI. See, e.g., N.J.S.A. 2C:43-12(e)(8)-(13) (including "the extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior," the applicant's "record of criminal and penal violations," whether the crime is of an "assaultive or violent nature," and the applicant's history of "physical violence" or involvement with "organized crime"). Such a discussion was equally missing from the prosecutor's concurrence. In fact, when directly asked whether this defendant would have qualified for PTI if he had not been an illegal alien, the prosecutor was unable to respond. We therefore agree with Judge Santiago that, stripped to its essence, the State's only basis for preclusion was defendant's status as an illegal alien who committed a crime. That, as we have previously said, is not enough. Liviaz, supra, 389 N.J. Super. at 403. The exclusion of this defendant from PTI because of his undocumented status constituted a gross and patent abuse of discretion.