STATE OF NEW JERSEY v. PATRICIA D. KURTZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICIA D. KURTZ,

Defendant-Appellant.

_______________________________

June 15, 2015

Submitted: June 2, 2015 Decided

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 13-07-0828.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

After the trial court denied her request to be admitted into the pre-trial intervention program (PTI) over the prosecutor's objection, defendant pled guilty to one count of fourth-degree operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated, N.J.S.A. 2C:40-26b. She also pled guilty to driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50. The judge sentenced defendant to two concurrent 180-day terms in county jail on each conviction, suspended defendant's driving privileges for ten years, and imposed appropriate fines, penalties, and surcharges.

Defendant now appeals the court's order denying her request for admission into PTI.1 We affirm.

We derive the following facts from the record. On January 19, 2013, Officer Rossy was patrolling along Route 46. Suddenly, defendant's car "abruptly changed lanes" in front of him, and the officer had "to apply his br[a]kes to avoid striking the rear of [defendant's] vehicle." Officer Rossy followed defendant as she continued to drive, and "noticed her cross over the double yellow lines by about one foot on two separate occasions." Defendant then began "driving aggressively by switching lanes and tailgating a vehicle in the right lane." After defendant started "driving in the middle of [the] two lanes[,]" the officer conducted a motor vehicle stop.

Defendant did not have a license, but she provided Officer Rossy "with a New Jersey identification card." The officer noticed that defendant "had watery, bloodshot eyes and droopy eyelids." Her speech "was slow and slurred[.]" When defendant got out of her car to perform field sobriety tests, Officer Rossy "detected the smell of alcohol on her breath." After defendant failed all five of the field sobriety tests, Officer Rossy arrested her and transported her to police headquarters.

At headquarters, the police administered a breathalyzer test of defendant's blood alcohol content (BAC). The test revealed defendant's BAC was 0.15%. In June 2012, just nine months before this arrest, defendant had been convicted of driving while suspended, a motor vehicle offense. She also had two prior DWI convictions, one in 2002 and the other in 2011.

Prior to her indictment, defendant applied for PTI. On May 9, 2013, the prosecutor denied defendant's application after considering all of the factors set forth in N.J.S.A. 2C:43-12e.2 The prosecutor emphasized the nature of the offense, the facts underlying the offense, and the needs and interests of society, N.J.S.A. 2C:43-12e(1),(2), and (7).

In addition, the prosecutor highlighted the "'possibly injurious consequences of [defendant's] behavior[,]'" because defendant's erratic driving and "the reckless nature of [her] actions" placed the public at risk of harm. N.J.S.A. 2C:43-12e(10). In this regard, the prosecutor stated that "'defendant could have caused serious and possibly even fatal injury to herself, the officer she nearly collided with, and anyone else who was on the roadway at the time.'" The prosecutor also found that defendant's offense constituted "a continuing pattern of anti-social behavior" because defendant was intoxicated while driving without a license, and had been convicted of both DWI and the motor vehicle offense of driving while suspended in the recent past. N.J.S.A. 2C:43-12e(8).

After defendant was indicted for fourth-degree operating a motor vehicle during a period of license suspension for multiple convictions of driving while intoxicated, N.J.S.A. 2C:40-26b, she filed a motion to be admitted into PTI over the prosecutor's objection. After conducting oral argument, Judge Mary Gibbons Whipple rendered a thoughtful ten-page written opinion denying defendant's motion.

Judge Whipple found that the prosecutor did not abuse his discretion by denying defendant's application into PTI and had considered all of the appropriate factors under N.J.S.A. 2C:43-12e. Although defendant argued that she was "only" charged with operating a motor vehicle without a license and not with causing injury to the public, the judge stated

While the court recognizes that the crime of Driving While Suspended is not in and of itself assaultive or violent, the circumstances here should not be compartmentalized; driving while suspended and with a BAC of 0.15% certainly can amount to assaultive or violent behavior having possible injurious consequences. In any event, the totality of circumstances and other factors relied on by the State demonstrate that the prosecutor did not abuse his discretion in this case.

The judge also rejected defendant's contention that the prosecutor improperly relied upon her past driving record in denying her PTI application. The judge found that, unlike in State v. Negran, 178 N.J. 73 (2003), the case cited by defendant, the prosecutor did not consider past motor vehicle violations that were dissimilar to the current offense or which

were too distant to support a finding of "a pattern of anti-social behavior." [Negran, supra, 178 N.J. at 85] . . . Here, . . . the defendant committed two prior DWI[]s with the most recent occurring in 2011, and then was convicted in July 2012 with Driving While Suspended. This prior history has both a strong temporal and substantive relationship to the defendant's current charge. As a result, the prosecutor reasonably concluded that [defendant's] recent Driving While Suspended offenses, in addition to two DWI[]s, demonstrated a continuing pattern of anti-social behavior.

Finally, the judge noted that the prosecutor considered that defendant had "no prior criminal history, that she was remorseful, and that she has taken some steps to address her alcohol problem." However, the judge found

no evidence that the decision of the prosecutor denying defendant's admission into PTI constituted [an] abuse of discretion. Defendant has not successfully demonstrated that the State did not consider all relevant factors or that the determination was premised upon irrelevant or inappropriate factors. The court does not find that there was a clear error in judgment in the decision. The defendant posed a legitimate threat to the safety of herself, the officer, and the public by driving without a license and with a 0.15% BAC. Moreover, it is significant that the defendant was convicted of Driving While Suspended only seven months before [the] instant offense and was therefore well aware of the consequences of her behavior.

This appeal followed.

On appeal, defendant argues that "the prosecutor's rejection of [her] PTI application constituted a gross and patent abuse of discretion and the [trial] court . . . erred by failing to admit [her] into PTI over the prosecutor's objection." We have considered defendant's contention in light of the record and applicable legal principles. We affirm substantially for the reasons expressed by Judge Whipple in her well-reasoned October 1, 2013 written opinion. We add the following brief comments.

The scope of our review of a PTI rejection is "severely limited[.]" Negran, supra, 178 N.J. at 82. Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). "Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors
"broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015).

"In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008)(citation omitted). "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (citation omitted).

Applying these principles, we discern no patent or gross abuse of discretion by the prosecutor under the circumstances of this case. We are satisfied that Judge Whipple properly addressed the relevant factors and considered the appropriate standard in denying defendant's application to be admitted to PTI.

Affirmed.

1 Rule 3:28(g) states "[d]enial of acceptance [into PTI] may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty."

2 The parties have not provided us with a copy of the prosecutor's May 9, 2013 rejection letter. However, the prosecutor's reasons for denying defendant's application are discussed in detail in the trial judge's October 1, 2013 written opinion.