STATE OF NEW JERSEY v. AMANDA R. DOCTOR

NOT FOR PUBLICATION WITHOUT THE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.

AMANDA R. DOCTOR,

Defendant-Appellant.

_________________________________

February 8, 2016

Argued February 2, 2016 Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-10-01158.

Joseph J. Discenza argued the cause for appellant (Mandelbaum Salsburg, attorneys; Mr. Discenza, on the brief).

Timothy P. Kerrigan, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Kerrigan, on the brief).

PER CURIAM

Defendant Amanda Doctor appeals from her conviction for fourth-degree driving while her license was suspended for a second offense of driving while intoxicated (DWI), N.J.S.A. 2C:40-26(b), for which the court imposed a mandatory 180 day jail term. See State v. French, 437 N.J. Super. 333 (App. Div. 2014), certif. denied, 220 N.J. 575 (2015). Her appeal focuses on the denial of her suppression motion and the denial of her application for pre-trial intervention (PTI).

Defendant raises the following appellate issues

A. DOCTOR'S MOTION TO SUPPRESS PRESENTS A SUBSTANTIAL QUESTION FOR REVIEW BY THE APPELLATE DIVISION.

B. DOCTOR'S MOTION TO COMPEL PTI PRESENTS A SUBSTANTIAL QUESTION FOR REVIEW BY THE APPELLATE DIVISION.

C. THE RELEASE OF DOCTOR ON BAIL WOULD NOT PRESENT A DANGER TO ANY PERSON OR THE COMMUNITY.

D. DOCTOR DOES NOT POSE A FLIGHT RISK IF GRANTED BAIL.

E. THE APPELLATE PROCESS WILL REQUIRE A LONGER TIME PERIOD THAN DOCTOR WILL SERVE IN PRISON.1

Having reviewed the record in light of the applicable legal standards, we affirm.

We begin by addressing the suppression motion. Our standard of review is well established. We must defer to the trial judge's factual findings so long as they are supported by sufficient credible evidence. State v. Hathaway, 222 N.J. 453, 467 (2015). We review the trial court's legal interpretations de novo. Ibid. A police officer stopped defendant's car because he believed the car had illegally tinted windows. After hearing the testimony, Judge Alberto Rivas issued a written opinion finding that the officer was a credible witness and had a reasonable and articulable suspicion that defendant was violating a traffic law, either N.J.S.A. 39:3-74 or -75. The judge also found "no suggestion that the stop was pretextual." We affirm for the reasons stated in Judge Rivas's opinion. We add the following comment.

Defendant contends that the judge should not have found the officer credible. We owe particular deference to a trial judge's evaluation of witness credibility. State v. Locurto, 157 N.J. 463, 473-74 (1999). After reviewing the record, we find no basis to second-guess Judge Rivas's determination that the officer's testimony was credible and that the tinting of defendant's car windows was dark enough to trigger a reasonable belief that the applicable traffic statute was being violated. That was sufficient. "To satisfy the articulable and reasonable suspicion standard, the State is not required to prove that the suspected motor-vehicle violation occurred." Id. at 470.

Next, defendant argues that she should have been admitted to PTI. Notably, both the Criminal Division Manager and the Prosecutor's Office found defendant to be an inappropriate candidate for PTI. Both agencies considered that defendant had two prior DWI convictions but nonetheless started driving again less than thirty days after having her license suspended for the second time. Additionally, both the Prosecutor and the Criminal Division Manager found that defendant failed to understand the extent of her alcohol problem. Our standard of review, like that of the trial court, is very limited. A prosecutor's decision to reject a defendant's PTI application will be overturned only in case of a gross and patent abuse of discretion. State v. Nwobu, 139 N.J. 236, 247 (1995). We find none here.

As she did in the trial court, defendant contends that the prosecutor applied a per se rule barring admission to PTI for this offense. Judge Rivas rejected that contention. Instead, he found that the prosecutor reasonably considered defendant's individual situation, and he found no gross and patent abuse of the prosecutor's discretion in rejecting defendant's PTI application. We find no error in that decision, which is supported by the evidence and the applicable law.

1 We denied defendant's motion for bail pending appeal, but we accelerated the appeal. Because the motion briefs addressed all of the proposed appellate issues, we also permitted both sides to rely on their motion briefs as their merits briefs if they wished to do so.