STATE OF NEW JERSEY v. HUGO F. RIVERA

NOT FOR PUBLICATION WITHOUT THE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.

HUGO F. RIVERA,

Defendant-Appellant.

_________________________________

October 7, 2014

Submitted September 17, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-446.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Priscilla J. Gabela, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

This appeal, pertaining to an application for enrollment in the Pretrial Intervention program (PTI), returns to us after our prior remand directing the trial court to consider additional factors. State v. Rivera, No. A-1772-11 (App. Div. June 7, 2012). On remand, the trial court upheld the decision of the PTI Director and the Hudson County Prosecutor's Office to reject defendant's enrollment in PTI. We affirm.

We described the facts of the case in our prior decision. Id. at 2-3. Briefly, defendant was driving a car without a valid license when he struck and seriously injured a pedestrian. Ibid. He was indicted on a single fourth-degree charge of causing serious injury in a motor vehicle accident while driving on a suspended license. N.J.S.A. 2C:40-22(b). Previously, a different judge in the trial court had granted defendant's appeal under Rule 3:28(h) to overturn the decision of the PTI Director and the prosecutor to reject his application for PTI. State v. Rivera, supra, slip op. at 2-3.

The State appealed the judge's decision, and we directed the trial court to reconsider, taking into account the seriousness of injuries to the victim and defendant's driving record pursuant to N.J.S.A. 2C:43-12(e). Defendant's driving record was significant because there was evidence that his driver's license had been suspended more than twenty years before the accident and he had been driving without a valid license since that time. State v. Rivera, supra, slip op. at 9. We considered such a circumstance to be relevant to defendant's PTI application because it might indicate a "continuing pattern of anti-social behavior," N.J.S.A. 2C:43-12(e)(8), that could justify denial of his PTI application.

On remand, the trial court reviewed defendant's driving abstract, heard argument of counsel, and then denied defendant's appeal, stating its reasons orally on the record on August 24, 2012. Subsequently, defendant pleaded guilty to the sole count of the indictment and was sentenced on March 22, 2013, to two years of probation with the requisite fines and penalties.1

Defendant filed a notice of appeal and now argues before us that

THE TRIAL COURT IMPROPERLY FOUND THAT THERE WAS A PATTERN OF ANTI-SOCIAL BEHAVIOR PURSUANT TO N.J.S.A. 2C:43-12e(8) AS THE SOLE BASIS FOR DENYING MR. RIVERA'S MOTION FOR ADMISSION INTO PTI WITHOUT CONSIDERING OTHER CLEARLY PRESENT FACTORS.

In essence, defendant argues that our remand required the trial court to conduct a comprehensive review of his application for PTI enrollment and to re-evaluate all seventeen factors listed in N.J.S.A. 2C:43-12(e), as well as any other factors favoring defendant's admission to the program. See State v. Negran, 178 N.J. 73, 80-83 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002).

The trial court's ruling on remand was focused on defendant's driving record and the confirmation that his license was suspended in 1990 and never reinstated during the ensuing years to the time of the accident. Furthermore, the court concluded from other entries on defendant's driver's abstract that he had continued to drive during that time and that he also exhibited anti-social behavior because he failed to appear in court on numerous occasions and failed to pay insurance surcharges imposed by the New Jersey Motor Vehicle Commission (MVC).

In fact, the driver's abstract showed that, from the time defendant was twenty years old in 1976 until the time of the accident, he had repeatedly failed to comply with laws and regulations applicable to use of a motor a vehicle in this State. The trial court concluded the driving history was evidence of anti-social behavior that could be considered in denying his PTI application, especially in a case involving serious injury to a pedestrian. See Negran, supra, 178 N.J. at 84 ("[A]pplicant's past driving record might be relevant in considering the alleged 'pattern of anti-social behavior' cited by the State for denying admission to PTI.").

In our prior decision, we affirmed the findings of the trial court that favored defendant's admission to PTI. State v. Rivera, supra, slip op. at 8. We remanded because the trial court had not adequately considered other relevant factors. Id. at 9-10. Although not explicitly stated in the trial court's ruling on remand, it appears that the court again weighed in the overall balance the factors that favored defendant's admission but considered the driving record to be a sufficient reason to deny the application. In addition, the trial court had no need to elaborate on the seriousness of the injuries to the victim, since there was no dispute in the record that she was seriously injured, and that factor weighed against defendant's admission. The court did not discuss evidence other than the driver's abstract, perhaps in response to the attorneys' lead in confining their arguments to that subject.

Defendant argues on appeal that the court should have conducted an evidentiary hearing to determine if he had in fact been driving without a license for many years. But his attorney did not request an evidentiary hearing. Instead, defense counsel argued that the driver's abstract showed payment of a license restoration fee in 1993 and no moving violations since that time. He argued the court should infer from that information that defendant had not actually driven regularly during the twenty years between losing his license and the motor vehicle accident, and that it was the State's burden to show that he had done so. The trial court rejected that argument, and so do we.

The burden of proof in overturning the decision of the PTI Director and the prosecutor is on defendant. State v. Leonardis, 73 N.J. 360, 381 (1977). Furthermore, the trial court must find "compelling reasons" to overrule the broad discretion granted to the PTI Director and the prosecutor in rejecting an applicant. Id. at 382 (citing R. 3:28, Guidelines 2 and 3(i)). A defendant who challenges denial of his admission into PTI must "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." State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382); accord State v. Baynes, 148 N.J. 434, 444 (1997).

Here, the prosecutor supported the decision rejecting the PTI application by means of the driver's abstract indicating that defendant made use of motor vehicles in this State for many years without a valid driver's license, without paying his MVC surcharges, and without proving that he had automobile insurance. Additionally, on many occasions, he failed to appear in court when summoned. It was defendant's burden to prove to the reviewing court that he had not engaged in anti-social behavior as this evidence seemed to show. If there was contrary evidence that defendant was not driving without a valid license since the time of the license suspension, defendant was in possession of that evidence and failed to present it. Furthermore, defendant gave no explanation for his failures to appear and the other infractions shown on his driver's abstract.

The trial court essentially followed our directive on remand and reviewed the additional evidence that pertained to defendant's appeal of PTI denial. It did not contradict any findings or factors that were favorable to defendant, but merely concluded that defendant had not met his burden of proving a patent and gross abuse of the discretion granted to the PTI Director and the prosecutor. The trial court's ruling on remand is unassailable on further appeal.

Affirmed.

1 The sentencing court initially imposed as a condition of probation that defendant perform community service, but it withdrew that condition when defense counsel argued that defendant had an application pending for disability benefits because of high blood pressure and dizziness.