STATE OF NEW JERSEY v. ANDREW J. SCHARLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2014-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW J. SCHARLE,

Defendant-Appellant.

___________________________________

May 15, 2014

 

Argued February 5, 2014 Decided

 

Before Judges Sapp-Peterson and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-03-00703.

 

Carl D. Poplar argued the cause for appellant.

 

Natalie A. Schmid Drummond, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Schmid Drummond, of counsel and on the brief).

PER CURIAM

Defendant Andrew J. Scharle appeals from his judgment of conviction, challenging the Law Division order denying his motion for admission into the Pretrial Intervention (PTI) program over the county prosecutor's objection. We affirm.

On November 1, 2011, defendant operated a motor vehicle while under the influence of alcohol. He lost control of the vehicle, struck a curb, went airborne and landed in a wooded area. While he and one of his passengers were able to exit the vehicle, a third passenger, his girlfriend, was wedged between the dashboard and her seat. Emergency personnel extricated her from the vehicle. She sustained a fractured femur. The other passenger went to the hospital complaining of chest and lower back pains. All three individuals acknowledged that they had been drinking earlier that evening at a party. Defendant and his two passengers were under the age to lawfully imbibe alcoholic beverages. Defendant's blood alcohol content was .17. Police issued summonses to defendant for various motor vehicle offenses. A grand jury later indicted defendant on one count of third-degree assault by auto, N.J.S.A. 2C:12-1c(2) (count one), and one count of fourth-degree assault by auto, N.J.S.A. 2C:12-1c(1) (count two).

On May 4, 2012, defendant applied for admission into the PTI program, N.J.S.A. 2C:43-12. The program director, Senior Probation Officer Blanca I. Figueroa, considered the nature of the offense, N.J.S.A. 2C:43-12 (e)(1), the needs and interests of the victim and society, N.J.S.A. 2C:43-12 (e)(7), and whether the value of supervisory treatment would be outweighed by the need for defendant's prosecution, N.J.S.A. 2C:43-12 (e)(17). She also considered the assaultive nature of the offense. She denied the application, stating:

I have considered the materials submitted by the defendant including his age (20) and lack of prior criminal convictions. Despite these considerations and in view of the assaultive nature of the offense, the injuries to the victim and potential for even more serious consequences of his behavior, it is my opinion that the public need for prosecution and deterrence outweigh any benefit to be derived by the defendant through participation in the Pretrial Intervention Program.

 

It is further my opinion that his admission into PTI would deprecate the serious nature and consequences of his actions.

Defendant appealed the denial of his admission into the PTI program to the Law Division, and Judge Thomas A. Brown conducted a hearing, at which defendant presented numerous character witnesses, including his girlfriend, who sustained a fractured femur in the accident. All of the witnesses extolled defendant's positive qualities and confirmed his remorse over his actions. The prosecutor noted there was no expressed presumption against defendant's admission into the program, but highlighted the fact that "we have a young man who's not only underage himself, but he's drinking with at least two, now we know more, underage individuals." The prosecutor additionally noted that two persons sustained injuries as a result of defendant's actions. While acknowledging the submission of twenty-one letters on defendant's behalf, the prosecutor expressed that defendant's under-age drinking, his operation of a motor vehicle under the influence, the injuries the victims sustained and the potential for even more consequences informed the State's decision that "the need for prosecution outweighs any possible benefit to defendant."

Judge Brown found the record did not support defendant's contention that the prosecutor failed to consider his case on an individualized basis. Further, defendant urges the only reason he was denied admission into the program was because of a per se rule that individuals charged with drinking and driving, which result in injuries, will be prosecuted rather than diverted. The judge credited the testimony of all of the character witnesses, but concluded defendant failed to establish "that the denial of his application was an error that clearly subverted the underlying goals of the PTI [p]rogram."

On September 10, 2012, defendant pled guilty to the fourth- degree assault by auto offense, pursuant to a negotiated plea agreement. He also pled guilty to driving while under the influence, N.J.S.A. 39:4-50. The State recommended a non-custodial probationary sentence, along with appropriate fines and penalties, and also agreed to dismiss the remaining charges. Two weeks later, defendant filed a motion seeking the production of documents related to PTI rejections appealed to the Law Division for the previous five years, including the appeals from rejections that were granted. Although the motion was filed before Judge Brown, defendant moved to transfer the motion to another judge and for Judge Brown's recusal.

Judge Brown denied the recusal motion, noting no patent and gross abuse of discretion occurred because he denied defendant's PTI appeal. He remarked that this was not a circumstance where having denied the appeal, he would thereafter preside over the bench trial of defendant's charges. Rather, he noted the motion before him dealt solely with defendant seeking to obtain access to PTI records for the past five years to pursue appellate review of his denial of defendant's PTI.

Turning to the document request, Judge Brown found the request "arbitrary." The judge concluded defendant failed to demonstrate that the records were relevant to his case and expressed that "[t]he comparison of other PTI files would not aid the defendant in determining whether his PTI appeal denial was arbitrary or capricious."

Defendant raises the following points for our consideration on appeal:

 

 

POINT I

 

THE DENIAL OF ANDREW SCHARLE'S ADMISSION INTO THE PRETRIAL INTERVENTION PROGRAM WAS A GROSS AND PATENT ABUSE OF DISCRETION BY A SENIOR CAMDEN COUNTY PROBATION OFFICER, WHICH WAS ADOPTED BY A CAMDEN COUNTY ASSISTANT PROSECUTOR.

POINT II

 

THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM HEARING THE MOTION FOR PRODUCTION OF DOCUMENTS THAT WAS DIRECTED TO PROVE THAT IN CAMDEN COUNTY THERE IS A POLICY OR PRACTICE BY THE COURT TO REJECT ALL PTI APPEALS.

POINT III

 

THE DEFENDANT'S MOTION FOR THE PRODUCTION OF RECORDS TO ESTABLISH EVIDENCE OF A BRIGHT LINE PRACTICE OR PROCEDURE BY THE SUPERIOR COURT IN CAMDEN COUNTY TO DENY ALL APPEALS OF PTI REJECTIONS BY THE PROBATION OFFICER AND/OR PROSECUTOR SHOULD HAVE BEEN GRANTED.

Eligibility for PTI is based primarily on "the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). "Admission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). In making a determination to admit, "a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J. at 255 (citing State v. Sutton, 80 N.J. 110, 119 (1979)). A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008). "In respect 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." Negran, supra, 178 N.J. at 82.

Accordingly, a court's scope of review of such a decision is "severely limited," and has been characterized as one of "'enhanced' or 'extra'" deference. Ibid. (quoting State v. Baynes, 148 N.J. 434, 443-44 (1997)); see Nwobu, supra, 139 N.J. at 246. Therefore, "[i]n 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." Watkins, supra, 193 N.J. at 520 (citation and internal quotation marks omitted). "The question is not whether [the court] agree[s] or disagree[s] with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.

Applying the above standards, we discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. "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. (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

Here, the record fully supports the prosecutor's denial of defendant's application. While "[p]rosecutors and program directors shall consider in formulating their recommendations of an applicant's participation in a supervisory treatment," the criteria set forth in N.J.S.A. 2C:43-12e(1) to -(17), it is well-settled that "a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged." State v. Kraft, 265 N.J. Super. 106, 115 (App. Div. 1993). That, however, was not the case here. Defendant had earlier engaged in under-age drinking at a party. Further, he entered a vehicle, knowing he had engaged in under-age drinking, thereby operated his vehicle under the influence. Additionally, defendant's passengers sustained injuries resulting from defendant's decision to operate a motor vehicle under the influence.

"The primary purpose behind New Jersey's drunk-driving statutes is to curb the senseless havoc and destruction caused by intoxicated drivers[,]" and to "eliminate intoxicated drivers from the roadways of this state." State v. Tischio, 107 N.J. 504, 512, 514 (1987). No less public policy consideration surrounds the need to curb under-age drinking. State v. Chun, 194 N.J. 54, 73-74 (2008). While we note the prosecutor did not specifically address each of the seventeen factors set forth in N.J.S.A. 2C:43-12e, we are convinced the prosecutor considered all of the relevant factors set forth in this statutory provision. Accordingly, we find no reason to disturb the prosecutor's decision.

After careful review, we conclude the court employed the correct standard in evaluating the decision to deny defendant's admission into the PTI program. We find no indication that irrelevant or inappropriate factors played a role in the decision. Finally, defendant failed to meet his heavy burden to demonstrate the prosecutor s decision was a clear and patent abuse of discretion.

Defendant's remaining points are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

As Judge Brown found, the fact that he presided over the appeal of defendant's denial of admission into the PTI program was not a basis to recuse himself from defendant's discovery motion. With regard to the discovery motion, he found that defendant did not seek discovery of the requested documents as part of his appeal of the denial of his admission into PTI, but to assist in his anticipated appeal to this court. Because defendant did not seek this discovery as part of a motion for reconsideration nor initially as part of his appeal of the rejection to the Law Division, we find no abuse of the trial judge's discretion in denying the discovery request.

Nonetheless, even assuming defendant had made a request for such discovery initially, as part of the appeal or as part of a motion for reconsideration, the evidence submitted in support of the application was deficient. As the State noted in oral argument, the motion was unaccompanied by any certification from counsel that he personally made inquiries of other defense attorneys regarding their experiences with appeals from rejections into PTI programs.

What was included in the motion papers was a letter from the Deputy Public Defender, Camden Region, responding to a request by trial counsel:

I have surveyed the attorneys in this office for the purpose of determining if they have had any cases in which they were successful in appealing the prosecutor's rejection of a client into the Pretrial Intervention Program. These appeals are heard by the Criminal Presiding Judge, The Honorable Thomas A. Brown, Jr. I have not received any responses indicating a successful appeal in these cases.

 

This is the only documentary evidence submitted in support of the discovery application.

Notably absent from the motion were certifications from the attorneys to whom these inquiries were made, identifying the cases for which PTI was sought, the nature of the charges, the reasons for the rejection and the identity of the judge presiding over the appeal of the denial, together with a statement of reasons denying the application.

A

t a minimum, this data, which was in the control of the Public Defender's Office, Camden Region, should have been provided to the court before it could meaningfully consider whether any records maintained by the court or the prosecutor should be disclosed to defendant. See State v. Herrerra, 211 N.J. 308, 326 (2012) (re-iterating the necessity to establish a colorable basis for a claim of selective enforcement in order to obtain pretrial discovery of government records) (citing State v. Ballard 331 N.J. Super. 529, 541 (App. Div. 2000)). Failing to do so, the defense proffer was nothing more than a bare assertion of the existence of a per se rule rejecting similarly situated applicants from PTI.

 

 

Affirmed.