STATE OF NEW JERSEY v. DENNIS P. McINERNEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6286-05T36286-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS P. McINERNEY,

Defendant-Appellant.

___________________________________

 

Argued May 8, 2007 - Decided May 22, 2007

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, Indictment No. 05-11-2520-E-INV.

D. William Subin argued the cause for appellant (Jasinski and Williams, attorneys; Mr. Subin, on the brief).

Peter J. Gallagher, Assistant Atlantic County Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Prosecutor, attorney; Mr. Gallagher, of counsel and on the brief).

PER CURIAM

Defendant was indicted for reckless driving causing serious bodily injury, in violation of N.J.S.A. 2C:12-1(c)(1), and leaving the scene of an accident resulting in serious bodily injury, in violation of N.J.S.A. 2C:12-1.1, both fourth-degree offenses. Defendant applied for admission into the Pretrial Intervention Program (PTI). The PTI Director rejected the application. The County Prosecutor also rejected the application. Defendant filed a motion to compel his admission into the program. The trial court denied the motion.

Pursuant to a plea bargain, defendant then pled guilty to the leaving the scene of an accident charge, reserving the right to appeal the denial of his motion to compel admission into PTI. The reckless driving charge was dismissed. The trial court sentenced defendant to a three-year term of probation. Defendant was also ordered to forfeit his position with the State Police and disqualified from future public employment.

The facts upon which the charges against defendant were based are set forth in the PTI Director's notice to defendant preliminarily rejecting his application for admission into PTI:

According to the discovery, you allegedly drove a motor vehicle in a reckless manner resulting in a rear end collision with another vehicle that left the victim in serious physical condition. The victim's vehicle was forced off the road as a result of the collision and it overturned entrapping the victim. You allegedly compounded your actions by leaving the scene of the accident without rendering aid to the victim or seeing that medical assistance was forthcoming. An eyewitness to the collision advised that immediately after you ran into the victim's car he pulled his vehicle alongside of yours and signaled to you about the accident and signaled for you to go back to see if anyone was injured and needed help. The witness maintains that when he pulled alongside of your vehicle both vehicles were at a standstill and eye contact was made when he signaled you to return to the accident scene. He tried to call 911 with his cell phone but could not get a signal. He then went to the toll [booth] ahead and called 911 from there. As he was returning to the scene of the accident to render assistance he observed you driving through the toll booth. He sounded his horn and when you made eye contact with the witness you allegedly "floored it and took off." The eyewitness followed you and it was his opinion that you knew that you were being chased by him. Reportedly you both were traveling in excess of 90 mph. When you stopped for a red light the witness was able to obtain your registration number. The victim of your purported misconduct incurred very serious and possibly permanent injuries as a result of your actions. Among other injuries he sustained a broken back with "potential spine complications" that might require surgery. . . .

In response to your application for PTI, on 1/3/06 you were afforded a personal interview. As revealed during that interview you claim not to realize that you had caused an accident claiming that you were extremely tired from working a double shift the day before and going out afterwards with friends. You only vaguely recall driving erratically and going off the road for a brief period of time. You deny remembering that you struck another vehicle. You also claim that the eyewitness statement is inaccurate and that the events described by the eyewitness never took place, at least to the best of your recollection. Although you had a couple of beers, you adamantly deny that you were operating your car while intoxicated or under the influence of alcohol or any other substance.

You are described as being a 25 year old, single, white male with no children. You were employed by the New Jersey State Police as a State Trooper when the instant offense occurred. . . . A conviction in this matter would probably result in your loss of employment with the State Police.

In rejecting defendant's application, the PTI Director stated:

Because you have been charged with Assault by Auto and Leaving the Scene of an Accident, both crimes of violence, one by commission and the other by malicious neglect, and because your alleged actions resulted in serious bodily injury to another individual, PTI is compelled to conclude that your crime constitutes a crime of violence that falls within the exclusionary intent of Guideline 3-i-3. As such, there is a presumption against enrollment unless compelling reasons exist. PTI has carefully considered the favorable aspects in this case along with the probability that you may forfeit your career if convicted in this matter, but in the end concludes that the favorable aspects in your case and the likelihood of a career-ending conviction are not compelling enough to offset the violent and life-threatening nature of your alleged misconduct. We therefore feel that we must reject your application.

Similarly, the Prosecutor's letter rejecting defendant's application stated:

The State concurs with the Criminal Case Management Office that this case involves a crime of violence for which there is a presumption against enrollment into the PTI program pursuant to Guideline 3(I).

. . . .

The State has reviewed the brief and other materials submitted by the defense. The submission does not contain any "compelling reasons" as to overcome the presumption against diversion. Factors such as the defendant's remorse, lack of a prior criminal conviction and the support of his family are positive but are not considered compelling as to overcome the presumption against enrollment. . . .

The State concludes that the preliminary and final rejections were appropriate exercises in judgment and that the needs and interests of this community to deter and punish outweigh any benefit which would be realized through diversion. Therefore, the State concurs in the rejection.

The decision whether to admit a defendant into PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996). Therefore, a court may override a prosecutor's rejection of an application for PTI and order admission only "[i]f a defendant can 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion[.]'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 382 (1977)).

However, if a review of the record shows that "a prosecutor fail[ed] to consider all relevant factors or consider[ed] irrelevant factors [in rejecting a defendant's application for admission into PTI], a court may remand the matter for further consideration." State v. Nwobu, 139 N.J. 236, 247 (1995). "Whether the prosecutor has based his or her decision on an inappropriate factor . . . is akin to a question of law[.]" State v. DeMarco, 107 N.J. 562, 567 (1987). "When a prosecutor . . . considers inappropriate factors, a court may clarify the appropriate factors and remand the matter for further consideration." Ibid.

Both the PTI Director and the Prosecutor concluded that there was a presumption against defendant's admission into PTI because he was charged with crimes of violence within the intent of PTI Guideline 3(i)(3). This Guideline states: "If the crime [charged] was . . . deliberately committed with violence or threat of violence against another person . . ., the defendant's application should generally be rejected."

We conclude that neither of the offenses with which defendant was charged fall within this Guideline. Therefore, the trial court's denial of defendant's motion for an order compelling his admission into PTI must be reversed and the case remanded to the Prosecutor to reconsider defendant's application without regard to PTI Guideline 3(i)(3).

N.J.S.A. 2C:12-1(c)(1) provides:

A person is guilty of assault by auto . . . when the person drives a vehicle . . . recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto . . . is a crime of the fourth degree if serious bodily injury results[.]

Thus, the mens rea element of this offense is "recklessness." However, PTI Guideline 3(i)(3) only applies to a crime of violence committed "deliberately." The term "deliberate" is generally understood to mean "intentional; premeditated; fully considered." Black's Law Dictionary (7th Ed. 1999); see also State v. DiPaolo, 34 N.J. 279, 295 (1961) (noting that in "daily parlance" the word "deliberate" is generally understood to mean "willful" or "intentional"). However, the Code of Criminal Justice defines "recklessly" as:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2-2(b)(3).]

Consequently, a person may be found to have "recklessly" caused serious bodily injury, in violation of N.J.S.A. 2C:12-1(c)(1), without acting "deliberately," as required for an offense to fall under PTI Guideline 3(i)(3). In fact, if a person deliberately caused or attempted to cause serious bodily injury with an automobile, he could be charged with second degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1), which would fall under PTI Guideline 3(i)(3).

N.J.S.A. 2C:12-1.1 provides in pertinent part:

A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of R.S. 39:4-129 shall be guilty of a crime of the fourth degree if the accident results in serious bodily injury to another person.

Thus, the mens rea element of this offense is "knowing" conduct. We have no need to decide whether PTI Guideline 3(i)(3)'s limitation to "deliberately committed" crimes of violence applies to offenses for which the mens rea element is "knowing" rather than "purposeful" conduct because we conclude that leaving the scene of an accident is not a crime of violence. Although an automobile accident that results in bodily injury could be a crime of violence, this event occurs before the crime of leaving the scene of the accident, which is not a crime of violence but instead a violation of the duty imposed by N.J.S.A. 39:4-129 to report an accident and remain at the accident scene. Indeed, this offense can be committed by a person who was not at fault with respect to the automobile accident that gave rise to the obligation to report. Therefore, a violation of N.J.S.A. 2C:12-1.1 is not a deliberately committed crime of violence but instead a violation of a reporting duty.

For these reasons, we conclude that the PTI Director and Prosecutor incorrectly proceeded on the premise that defendant was charged with offenses that fall under PTI Guideline 3(i)(3), giving rise to a presumption against his admission into PTI. We do not know whether the Prosecutor would have reached a different conclusion regarding defendant's application for admission into PTI absent consideration of this factor. Therefore, the case must be remanded to the prosecutor for reconsideration in light of all applicable factors. We note those factors include "the nature of the offense." PTI Guideline 3(i); see also N.J.S.A. 2C:43-12(e)(10).

Accordingly, the order denying defendant's motion to compel admission into PTI is reversed and the case is remanded to the Prosecutor to reconsider defendant's application in light of this opinion. Jurisdiction is not retained.

 

(continued)

(continued)

9

A-6286-05T3

May 22, 2007