STATE OF NEW JERSEY v. TIMOTHY E. HORNER STATE OF NEW JERSEY v. CHRISTOPHER P. DeWOLF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2405-09T4

A-3037-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY E. HORNER,

Defendant-Appellant.

_____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER P. DeWOLF,

Defendant-Appellant.

_____________________________

February 15, 2012

Submitted January 17, 2012 - Decided

Before Judges Sapp-Peterson, Ashrafi and Newman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1236.

Saponaro & Sitzler, attorneys for appellant Timothy Horner (George R. Saponaro, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Christopher DeWolf (Suzannah Brown, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this consolidated appeal, defendants Timothy W. Horner and Christopher P. DeWolf appeal from the orders of rejection from the Pretrial Intervention Program and from the sentences imposed on their guilty pleas to the offense of third-degree eluding as amended from second-degree eluding, N.J.S.A. 2C:29-2b.1 We reject their contentions and affirm.

The relevant facts were summarized in the criminal case manager's PTI rejection letter as follows:

[O]n July 10, 2008, at approximately 8:15 p.m., Officer Auriano of the New Hanover Township Police Department was flagged down by several residents of Hockamick Road. The residents advised the officer that four motorcycles were in the area of 44 Hockamick Road doing donuts and wheelies. Approximately five minutes later, Officers Auriano and Tuliano witnessed four motorcyclists traveling at a high rate of speed and initiated a motor vehicle stop. Officer Auriano spoke with the four, later identified as Timothy Horner, Christopher DeWolf, Samuel J. Pribell and Casey A. Pritchett. The officers explained to the motorcyclist [sic] about the complaints they had received. The motorcyclist advised the officers that it was not them, as they were all at Timothy Horner's home. The officers let the motorcyclist [sic] go with a warning. The officers returned to speak with the residents who complained and they confirmed that the descriptions of the motorcycles that the officers had just stopped were the same as the ones that were doing donuts and wheelies in the area of 44 Hockamick Road and Main Street. About an hour later, the officers encountered the same motorcyclist [sic] in the area of Hockamick Road and Main Street. Officer Auriano began to follow the four on Main St. The motorcyclist [sic] turned onto Bunting Bridge Road; and as they approached a 50 M.P.H. zone they aggressively accelerated. Officer Auriano switched on his radar, and clocked them doing 113 m.p.h. Officer Auriano activated his lights and siren. Eventually one rider, Samuel Pribell, pulled over and confirmed the other riders were the three that were with him during the previous stop (Horner, DeWolf and Pritchett).

In rejecting both defendants' PTI applications, it was noted that a defendant charged with a first or second-degree offense should not ordinarily be considered for admission to the PTI program except upon the joint application by defendant and the prosecutor. Both defendants were charged with second-degree eluding. No joint application was presented in either case. The PTI director commented that but for the second-degree nature of the offense, either defendant would be a suitable candidate for the program, but no compelling circumstances had been presented to justify admission.

Defendants moved for reconsideration of the criminal division manager's rejection before the prosecutor's time to review had expired. As a result, the prosecutor did not separately reject each defendant.

A co-defendant, Casey A. Pritchett, had his second-degree eluding charge amended to a third-degree offense by way of a consent order with the trial prosecutor. The prosecutor consented to Pritchett applying to PTI out of time but did not consent to his admission into the program. The amendment to a third-degree eluding offense resulted from Pritchett's cooperation with the prosecutor and took place prior to either of defendants here applying to the PTI program. Pritchett was admitted into the program and, according to what has been represented, had completed his six-months supervisory period successfully.

Defendants entered guilty pleas to amended charges of eluding and were each sentenced to three-years probation with 364 days to be served on the weekends as a condition of probation. The sentences to incarceration have been stayed by the trial court.

In the appeal before the trial court, defendants argued that they were being treated differently from Pritchett although they were similarly situated. They maintained that not being offered the same terms of a downgrade to a third-degree offense, making them eligible for PTI without the prosecutor's consent, resulted in disparate treatment.

In rejecting the arguments, the trial court noted that these defendants were not similarly situated because they were charged with second-degree crimes not a third-degree offense as Pritchett was when he filed for admission to the PTI program. With regard to the prosecutor's decision to downgrade the charge against Pritchett, the court observed that it was not the court's function to decide whether it was appropriate or not for the prosecutor to decide whether a downgrade was wise or not. The prosecutor's decision, the court observed, was what that office does in terms of making "concessions" in cases. As the trial court stated: "They give consideration in cases for cooperation and it's not for me to decide whether there was a wise exercise of discretion."

With regard to each of the sentences imposed, the trial court found that the aggravating factor of the need for deterrence, both general and specific, was in equipoise with the mitigating factors of no prior criminal record for defendant Horner. Additionally, the court found that both defendants' conduct arose out of circumstances unlikely to recur, and the character and attitude of each defendant indicated that neither was likely to commit another offense and that both would respond affirmatively to probationary treatment. With regard to defendant DeWolf, the court also found that his imprisonment would entail excessive hardship to himself or dependents and he displayed a willingness to cooperate with law enforcement authorities.

The trial court rejected the assertion that mitigating factor two, that neither defendant caused nor threatened serious harm applied. Defendants had contended that the operation of the motorcycles at a speed in excess of 100 m.p.h. did not occur on a public highway. The trial court noted that in a rural area, debris, stones or roadkill lying on the roadway could result in a significant risk of harm to the operator of the motorcycle or anyone else in the vicinity.

On appeal, defendant Horner raises the following points:

POINT ONE

DEFENDANT HORNER SHOULD HAVE BEEN GRANTED ENTRY INTO THE PRE-TRIAL INTERVENTION PROGRAM BECAUSE HIS EQUALLY SITUATED CO-DEFENDANT WAS ADMITTED INTO THE PROGRAM AND THE PROSECUTION FAILED TO SET FORTH VALID REASONS FOR THE DISPARATE TREATMENT.

POINT TWO

THE PROSECUTION ABUSED ITS DISCRETION IN A PATENT AND GROSS MANNER BY DOWNGRADING ONLY CO-DEFENDANT PRITCHETT'S CHARGE AND NOT DEFENDANT HORNER'S CHARGE, DESPITE THE FACT THAT THE TWO INDIVIDUALS ARE SIMILARLY SITUATED.

POINT THREE

THE DEFENDANT'S SENTENCE OF 364 DAYS IN THE BURLINGTON COUNTY JAIL IS EXCESSIVE AS IT DOES NOT CONSIDER IMPORTANT MITIGATING FACTORS IN THE CIRCUMSTANCES OF THE CASE AND BACKGROUND OF THE DEFENDANT. THE SENTENCE IS ALSO EXCESSIVE WHEN VIEWED IN CONJUNCTION WITH CO-DEFENDANT PRITCHETT'S RECEIPT OF PTI.

On appeal, defendant DeWolf raises the following issues for our consideration:

POINT I

THE PROSECUTOR ABUSED HIS DISCRETION IN FAILING TO AMEND THE SECOND-DEGREE CHARGE AGAINST MR. DEWOLF TO A THIRD-DEGREE CHARGE FOR PURPOSES OF HIS APPLICATION TO PTI BECAUSE IT DID SO TO MAKE A SIMILARLY SITUATED CO-DEFENDANT ELIGIBLE FOR PTI.

POINT II

THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED ON ITS FAILURE TO FIND AN APPLICABLE MITIGATING FACTOR AND TO PROPERLY BALANCE AGGRAVATING AND MITIGATING FACTORS.

We have considered both defendants' arguments in light of the record and the briefs submitted. We affirm substantially for the reasons expressed by Judge James J. Morley in his oral decision of July 10, 2009 where he affirmed the rejection of both defendants into the PTI program. We also affirm the sentences of each defendant for the reasons set forth by Judge Morley on December 11, 2009. We add the following brief comments.

It is neither a gross abuse of discretion nor an abuse of discretion where a prosecutor decides to give a co-defendant an opportunity to cooperate in exchange for a downgraded charge. Prosecutors routinely choose to give the benefit of cooperation to some defendants and not to others. It is purely a charging decision that a court has no authority to intrude upon or interfere with. That is simply the case presented here.

Regarding the sentence meted out to each defendant, the trial court found several mitigating factors and used those to support the probationary term and flexible jail time as opposed to a straight term of imprisonment of 364 days. We discern no basis to disturb the sentences imposed by the trial court. The court correctly applied the statutory sentencing guidelines and properly weighed the aggravating factor against the mitigating factors, all of which were supported by the record. We neither find the sentences excessive nor do they shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

1 We have consolidated the appeals since they arise from the same factual setting and raise similar issues.