STATE OF NEW JERSEY v. JAIRO ABARCA
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4388-08T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
JAIRO ABARCA,
Defendant-Respondent.
_____________________________________________________________
Submitted October 28, 2009 - Decided April 30, 2010
Before Judges Graves and Sabatino.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
09-01-0054.
Wayne J. Forrest, Somerset County Prosecutor,
attorney for appellant (Anthony J. Parenti, Jr.,
Assistant Prosecutor, of counsel and on the
brief).
Yvonne Smith Segars, Public Defender, attorney
for respondent (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
The State appeals from the April 24, 2009 order of the Law
Division admitting defendant Jairo Abarca into the Somerset
County Pretrial Intervention Program (PTI), over the objection
of the PTI director and the County Prosecutor. The trial court
stayed its order pending appeal. On appeal, the State argues
that its decision to reject defendant's PTI application was not
a patent and gross abuse of discretion, and the trial court
erred in substituting its decision for that of the prosecutor.
We agree and reverse.
On November 22, 2008, at approximately 2:20 a.m., officers
from the North Plainfield Police Department responded to a
report of a vehicle striking parked cars at
401 Route 22 West.
Upon arrival, Officer Christopher Bond observed another officer
speaking with defendant, who was driving a Ford Explorer that
had "sideswiped" three or four parked vehicles. While speaking
with defendant, Bond observed his eyes were bloodshot and
watery, and Bond detected a strong odor of an alcoholic beverage
on defendant's breath. When asked if he had been drinking,
defendant replied, "I had two beers."
Officer Bond then asked defendant to perform some field
sobriety tests, which defendant was unable to satisfactorily
complete. Defendant was placed under arrest for driving while
intoxicated (DWI) and transported to police headquarters, where
he was asked to empty his pockets. Defendant removed several
items from his pocket, including a small plastic baggie
containing a white powdery substance, which Bond believed to be
a controlled dangerous substance. Bond tested the powder with a
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field testing kit, and it tested positive for cocaine. Officer
Bond then administered the Alcotest 7110 to defendant, and he
gave two breath samples. Each test resulted in a blood alcohol
concentration reading of 0.18 percent.
Defendant was charged with DWI, in violation of N.J.S.A.
39:4-50; careless driving, in violation of N.J.S.A. 39:4-97;
operating an unregistered vehicle, in violation of N.J.S.A.
39:3-4; third-degree possession of cocaine, in violation of
N.J.S.A. 2C:35-10(a)(1); and possession of drug paraphernalia,
in violation of N.J.S.A. 2C:36-2, a disorderly persons offense.
After the New Jersey State Police Forensic Laboratory confirmed
that the substance in the small plastic baggie was cocaine,
defendant was indicted for third-degree possession of cocaine.
Defendant applied for PTI in January 2009. The program
director gave the following reasons for rejecting defendant's
application:
The nature of the offense, N.J.S.A.
2C:43-12e(1). Police reports indicate you
were operating a motor vehicle while under
the influence of alcohol/drugs and crashed
into four parked vehicles. Your blood
alcohol reading was 0.18%. A check with
I.C.E. [U.S. Immigration and Customs
Enforcement] revealed you are not legally in
the United States and subject to removal
proceedings. As such your involvement in
the present offense, while here illegally is
[indicative] that PTI would not serve as
sufficient sanction to deter you from future
criminal conduct.
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The prosecutor's office agreed that defendant's application
should be denied.
In a brief in support of his appeal to the Law Division,
defendant claimed he "entered the United States legitimately"
and was "in the process of becoming a permanent resident." He
also stated he was "an ideal candidate for the program" because
he "has been in the United States for thirteen years and this
charge currently represents his first."
In response to defendant's appeal to the Law Division, the
prosecutor's office argued it "considered all relevant and
appropriate factors" and concluded that defendant was not an
acceptable candidate for PTI:
Pursuant to N.J.S.A. 2C:43-12e, the
State shall review several criteria when
assessing a defendant's application for PTI.
The factors relevant to this case that the
State properly considered are the nature of
the offense, the facts of the case, and the
motivation of defendant. The facts of this
case are that defendant drove his
unregistered motor vehicle while under the
influence of alcohol and possibly cocaine as
well. Defendant drove carelessly, striking
four parked vehicles. Luckily, no one was
in those vehicles and no one was injured.
When the police arrived, defendant claimed
to have consumed only two beers. However,
the Alcotest revealed a BAC of 0.18%, more
than twice the legal limit. Additionally,
defendant possessed a bag of cocaine and was
possibly under the influence of that
narcotic as well, resulting in the careless
A-4388-08T4
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driving that led to him hitting a total of
four parked vehicles.
....
In this case, the nature of the offense
and the facts of the case were not the sole
basis for defendant's rejection. The State
also took into consideration the fact that
defendant is currently in this country
illegally and is currently subject to
removal proceedings. While illegal status
alone cannot form the basis for rejection,
it is an appropriate factor to consider in
conjunction with those mentioned above. See
State v. Liviaz,
389 N.J. Super. 401 (App.
Div. 2007).
....
Finally, although prosecutors are
required to consider statutory criteria,
they are also encouraged to consider other
relevant factors when assessing a
defendant's application for PTI. "Such
other relevant factors would include the
applicant's efforts to seek help for a
disorder and the applicant's [progress] in
such program or therapy. Those
considerations bear directly on the
applicant's suitability to respond to
short[-]term rehabilitation while subject to
PTI supervision." State v. Negran,
178 N.J. 73, 85 (2003).
Here, defendant obviously has a problem
with alcohol and narcotics abuse. Thus far
he has not shown any motivation to address
this very serious issue. He makes [no]
mention in his brief of any substance abuse
program he is currently in or has completed.
Additionally, although he claims he is
making efforts to correct his illegal status
in this country, he has submitted no proof
of those efforts.
A-4388-08T4
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In granting defendant's application for admission into the
PTI program, the court relied primarily on State v. Liviaz, 389
401 (App. Div.), certif. denied,
190 N.J. 392
N.J. Super.
(2007):
[T]he defendant is . . . illegally here. No
prior warrants, no prior bench warrants, no
prior arrests, no prior record. Apparently
also charged with driving while intoxicated.
Certainly the State's entitled under State
versus Brooks[,
175 N.J. 215 (2002),] to
review the arrest record of an individual in
order to make the evaluation. That would
include motor vehicle offenses. This one is
not yet resolved. It is still an open
pending case. . . . Certainly in any other
case simple possession of [a] controlled
substance would not warrant denial of access
to the PTI program. It appears that the
other factor that the State is pointing to
is that he has a driving while intoxicated
charge but it's never been resolved. It is
still an open case.
I do find given the circumstances in
this matter, since there are no other
similar activities as pointed out in
Liv[iaz], that in this case the failure to
admit [defendant] into [the] program is a
patent and gross abuse of discretion and
I'll grant access to the program and ask the
defense to prepare an Order. However, the
State is entitled to appeal that and so
there is a stay pending the appeal.
In Liviaz, we concluded "that PTI may not be denied solely
because a defendant is an illegal alien." Liviaz, supra,
389 N.J. Super. at 403. Nevertheless, we held that the prosecutor
did not improperly deny defendant's PTI "because we [were]
A-4388-08T4
6
satisfied that it can be a relevant factor and that . . . the
prosecutor reasonably took it into account in addition to other
relevant factors, reaching conclusions that were well within his
discretion." Ibid. Similarly, the prosecutor found in the
present matter that several factors weighed against defendant's
enrollment in PTI. As the prosecutor noted, "[d]efendant's
possession of cocaine and drug paraphernalia, combined with his
related charge of DWI with a BAC of over twice the legal limit,
driving an unregistered car, and crashing into four cars
demonstrates a complete disregard for the lives of the citizens
of New Jersey." Moreover, defendant "continues to commit an
offense each and every day by illegally remaining in this
country," and PTI "cannot be expected to truly deter and
rehabilitate someone who continues to offend while under its
supervision." Accordingly, based on an examination of the
factors outlined in N.J.S.A. 2C:43-12(e)(1),(2), and (3), the
prosecutor concluded that "the value of supervisory treatment
would be outweighed by the public need for prosecution."
N.J.S.A. 2C:43-12(e)(14).
Because of "the close relationship of the PTI program to
the prosecutor's charging authority, courts allow prosecutors
wide latitude in deciding whom to divert into the PTI program
and whom to prosecute through a traditional trial." State v.
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Negran,
178 N.J. 73, 82 (2003). Judicial review exists "to
check only the most egregious examples of injustice and
State v. Leonardis,
73 N.J. 360, 384 (1977). "A
unfairness."
defendant attempting to overcome a prosecutorial veto must
clearly and convincingly establish that the prosecutor's refusal
to sanction admission into a PTI program was based on a patent
and gross abuse of his discretion before a court can suspend
criminal proceedings under Rule 3:28 without prosecutorial
consent." Negran, supra,
178 N.J. at 82 (internal quotations
omitted). To demonstrate a patent and gross abuse of
discretion, a defendant must demonstrate the "prosecutorial veto
(a) was not premised upon a consideration of all relevant
factors, (b) was based upon a consideration of irrelevant or
inappropriate factors, or (c) amounted to a clear error in
judgment." State v. Bender,
80 N.J. 84, 93 (1979).
Guided by these principles, we are satisfied the
prosecutor's decision did not result from a per se denial of
defendant's application based solely upon his immigration
status; the decision was consistent with the legislative
standards and the guidelines for PTI enrollment promulgated by
the Court; and it did not constitute a patent and gross abuse of
discretion, or a clear error in judgment. Consequently, the
order admitting defendant into PTI is reversed.
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Reversed and remanded for further proceedings consistent
with this opinion.
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