STATE OF NEW JERSEY v. JAMES J. SAUNDERS

NOT FOR PUBLICATION WITHOUT THE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.

JAMES J. SAUNDERS, IV,

a/k/a JAIME SAUNDERS,

Defendant-Appellant.

Argued May 6, 2014 Decided May 15, 2014

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-06-00634.

Justin T. Loughry argued the cause for appellant (Loughry & Lindsay, attorneys; Mr. Loughry, on the brief).

Bryant J. Flowers, Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Flowers, on the brief).

PER CURIAM

Defendant, James J. Saunders, IV, appeals from the denial of his application for entry into the Pre-Trial Intervention (PTI) program, following his indictment for two counts of third-degree assault by auto while intoxicated, N.J.S.A. 2C:12-1c(2). After his PTI application was denied, defendant pled guilty, pursuant to a negotiated agreement, to one count of fourth-degree assault by auto, N.J.S.A. 2C:12-1c(1), and reserved the right to appeal his PTI rejection. Defendant also pled guilty to driving while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to a two-year probationary term, required to submit to a drug/alcohol evaluation and comply with any recommended treatment, and had his driving privileges suspended for seven months. Appropriate penalties and assessments were also imposed.

On appeal, defendant again challenges the State's rejection of his PTI application. He presents the following points for our consideration:

FAILING TO CONSIDER ALL OF THE RELEVANT FACTORS AND GIVING EFFECTIVELY NO CONSIDERATION TO FACTORS THAT FAVORED ADMISSION, AT THE VERY LEAST CONSTITUTES AN ABUSE OF DISCRETION. IN THAT THE MODE OF ANALYSIS SUBVERTS THE GOALS OF THE PROGRAM, THE PROSECUTION'S REJECTION OF MR. SAUNDERS FROM PTI CONSTITUTES A PATENT AND GROSS ABUSE OF DISCRETION

THE PROSECUTION AND THE COORDINATOR IN EFFECT PURPORTED TO TREAT THIS CASE AS IF IT INVOLVED A PRESUMPTION AGAINST ADMISSION INTO PTI UNDER GUIDELINE 3(i), WHEN CLEARLY IT DOES NOT, AND SUCH A TREATMENT SHOULD QUALIFY AS A PATENT AND GROSS ABUSE OF DISCRETION

THE PROSECUTION IN EFFECT INVOKED A TRAFFIC OFFENSE AS THE REASON FOR DENYING PTI-THE SO CALLED SOCIETAL SCOURGE OF DRUNK DRIVING-IGNORING THE FACT THAT THE LEGISLATURE HAS LEFT THAT MATTER A NON CRIMINAL MATTER AND HAS ESTABLISHED A WHOLE SCHEME OF PENALTIES AND CORRECTIVE MEASURES THAT MAY CO-EXIST WITH A PTI ADMISSION AND THAT IN FACT THE PROSECUTION AND COURT MAY INSIST UPON AS A PART OF PTI ADMISSION, UNDER STATE V. MOSNER; SUCH INVOCATION OF A TRAFFIC OFFENSE THAT ALREADY IS SUBJECT TO AN ENTIRE REGIME OF NON CRIMINAL SANCTIONS, SUBVERTS THE GOALS OF PTI AND SHOULD NOT STAND

Having reviewed defendant's arguments in light of the record and the controlling legal principles, we conclude that the prosecutor's decision did not constitute a patent and gross abuse of discretion. Accordingly, we affirm.

The underlying facts are essentially undisputed, and are highlighted in the Criminal Division Manager's August 15, 2012 letter rejecting defendant's PTI application. During the early morning hours of December 16, 2011, defendant drove intoxicated and caused a serious one-car accident on Hurffville Road in Deptford, New Jersey. Defendant, a college student, was driving home from the Landmark Bar & Grill in Glassboro with two of his friends, Michael Albaz and Kevin Katz. According to witness statements and police examination of the accident scene, defendant drove at a high rate of speed and lost control at a slight bend in the roadway. His vehicle first skidded off onto the shoulder where it impacted a concrete curb, then off the roadway forty-five feet into a grassy area. The vehicle next crossed over a driveway, hitting and snapping a concrete post and curb. The car rode up the concrete post and travelled through the air before impacting a tree. It landed on its passenger side, continued sliding until it hit another curb, and flipped onto its roof. Subsequent testing revealed defendant's blood alcohol concentration (BAC) was .161%, twice the legal limit.

The vehicle sustained major damage and a large amount of debris was left scattered on the road. The rear seat passenger, Albaz, was able to crawl out of the window of the vehicle prior to police arrival. He then informed the officers that defendant and Katz, the front passenger, were trapped in the car. Members of the Deptford Fire Department then extracted the two from the vehicle.

While being interviewed by police at the scene, defendant admitted that he consumed a couple beers and shots before leaving the Landmark Bar. Katz also stated that the three had been consuming alcohol for several hours prior to the crash. Neither defendant, nor his passengers, remembered the cause of the accident. Defendant could only recall waking up in the overturned car. During the interview, officers smelled a strong odor of alcoholic beverage emanating from defendant's breath.

According to the State, Katz was treated at Cooper University Hospital in Camden for a sternum fracture, a concussion, a sprained ankle and a wound on his lip. Albaz sustained a fracture of his dorsal vertebra, closed lung contusion and a back contusion. Defendant also sustained serious injuries as a result of the incident.

In denying defendant's PTI application, the Criminal Division Manager cited Guideline 3(i), promulgated under Rule 3:28, which involves an assessment of the nature of the offense, and generally recommends rejection for crimes that are deliberately committed with violence or threat of violence against another person. The Division Manager reasoned that "defendant's decision to operate a motor vehicle even though his blood-alcohol level measured twice the legal limit clearly reflects an extreme disregard for his safety and others," and that "the combination of his level of intoxication and the rate of travel speed clearly represents a threat of violence which could have easily led to serious life altering injuries and fatalities."

The Gloucester County Prosecutor concurred with the Division Manager's determination that defendant's application should be denied. The assistant prosecutor submitted a single-page letter rejecting defendant's PTI application "for substantially the same reasons," "[a]fter considering the criteria set forth in N.J.S.A. 2C:43-12 and [Rule] 3:28."

Defendant appealed his PTI rejection to the Law Division on September 4, 2012. In an accompanying letter brief, defendant highlighted his unblemished record, educational background, and countless community references, supported by character letters, which he contended rendered him an optimal candidate for PTI.

The State responded that defendant had not met the high standard necessary to overturn a prosecutor's rejection, and included a brief analysis of the seventeen statutory PTI criteria, N.J.S.A. 2C:43-12(e). In arguing that defendant was not an appropriate candidate, the State primarily relied on the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), and the "facts of the case," N.J.S.A. 2C:43-12(e)(2). Additionally, the prosecutor cited N.J.S.A. 2C:43-12(e)(10), the "assaultive or violent nature" of the offense or "its possible injurious consequences," N.J.S.A. 2C:43-12(e)(11), whether "prosecution would exacerbate the social problem that led to the applicant's criminal act," and N.J.S.A. 2C:43-12(e)(14), whether "the value of supervisory treatment would be outweighed by the public need for prosecution."

On October 9, 2012, following oral argument, Judge Christine Allen-Jackson remanded the matter back for the State to provide a complete analysis of the statutory criteria. The judge noted that the State may not have fully taken into consideration the wishes of the victims, the degree of the offense, and the intent of the defendant. The judge then cautioned that if there was "not a full analysis of those [seventeen] factors, then it is a patent and gross abuse of discretion to make a categorical approach without a full analysis."

After both parties submitted supplemental briefs, the court entertained additional oral argument on January 14, 2013. Judge Allen-Jackson conducted her own review of the N.J.S.A. 2C:43-12(e) criteria, and determined that the prosecutor did not abuse his discretion. The judge found that "the nature of the offense and the need to deter this particular type of conduct" weighed against PTI, and that statutory factors five, eight, fourteen and seventeen were also probative. She noted:

[The State has] given consideration to the harm that could be done to society by abandoning criminal prosecution when there is a drunk driving matter that involves serious injuries or injuries to victims.

And the existence of the factors in this matter, the fact that the blood alcohol content was .16, that the fire department had to be called to actually extract at least one of the individuals from the car.

The nature of the offense itself is apparently what the State relied on in denying this particular application [] I do not find that there was an abuse of discretion on the part of the State in making that denial, given the factors that were taken into consideration.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). Admissions into PTI are governed both by statute, N.J.S.A. 2C:43-12(a)(1), and court rule, R. 3:28. See Guidelines for Operation of Pre-Trial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 1 on R. 3:28 (2014). The scope of judicial review is "severely limited[,]" and interference by reviewing courts is reserved for those cases in which it is needed "to check [] the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord State v. Nwobu, 139 N.J. 236, 246 (1995).

We review PTI decisions with enhanced deference. State v. Brooks, 175 N.J. 215, 225 (2002); State v. Baynes, 148 N.J. 434, 443 (1997). A defendant seeking to overturn rejection from PTI must demonstrate by clear and convincing evidence that the decision rejecting his or her application was "a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008).

The Supreme Court has noted that if a rejected defendant can prove the decision "(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[,]" then an abuse of discretion would "be manifest." State v. Bender, 80 N.J. 84, 93 (1979). In order to raise that presumption to the level of a "patent and gross" abuse of discretion, however, a defendant must also establish that his or her rejection from PTI "will clearly subvert the goals" of the PTI program. Ibid. It may be appropriate to reverse a decision rejecting a defendant from PTI where it "'is contrary to the predominant views of others responsible for the administration of criminal justice,'" Nwobu, supra, 139 N.J. at 253 (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)), such that it is "'clearly unreasonable so as to shock the judicial conscience'" or that it "'could not have reasonably been made upon a weighing of the relevant factors[,]'" id. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).

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 based on a finding defendant had failed to rebut the presumption of ineligibility due to the serious nature of the offense. Defendant, a college student, no doubt cognizant of the danger involved, drove his vehicle with a BAC of .16%, double the legal limit. Consequently, his actions resulted in serious personal injuries to himself and his two passengers. "[I]t 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).

State v. Moraes-Pena, 386 N.J. Super. 569 (App. Div. 2006), like the present case, involved a defendant charged with third-degree assault by auto while intoxicated. Following an initial remand, the trial judge reversed the denial of defendant's application and admitted defendant into PTI over the State's objection. We reversed, finding "that the prosecutor's rejection of PTI did not constitute a 'patent and gross abuse of discretion.'" Id. at 580 (citation omitted). We noted that, "as the alleged aggravated assault includes DWI, the public policy advanced by the prosecutor must be recognized." Ibid. We find no basis to depart from that result here.

We are satisfied Judge Allen-Jackson properly addressed the relevant factors and considered the appropriate standard in reviewing defendant's PTI application. We are also satisfied defendant's arguments do not meet the high standard necessary to reverse a prosecutor's rejection of his PTI application.