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February 3, 2016


Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 14-10-0948.

Paula Jordao, Assistant Prosecutor, argued the cause for appellant (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

Paul M. Selitto argued the cause for respondent.


The State appeals, with leave granted, from an August 10, 2015 order granting defendant Craig Darling entry into the Morris County Pre-Trial Intervention (PTI) Program over its objection. We reverse.

On February 8, 2014, a police officer stopped defendant's car for a random registration check. The officer issued defendant summonses for driving an unregistered vehicle, N.J.S.A. 39:3-4; and driving with a suspended license, N.J.S.A. 39:3-40. A check of defendant's driver's abstract subsequently revealed that he had been convicted of driving while intoxicated (DWI), N.J.S.A. 39:4-50, on three prior occasions. Defendant also had five prior convictions for driving while his license was suspended, N.J.S.A. 39:3-40.1 Three of these convictions were for driving while suspended for DWI. When the officer stopped him on February 8, 2014, defendant's license was still suspended as the result of his third DWI conviction.

Thereafter, a Morris County grand jury indicted defendant for fourth-degree operating a motor vehicle while his driver's license was suspended for a second or subsequent DWI conviction, N.J.S.A. 2C:40-26(b). If he were convicted of this offense, the trial court would be required to sentence defendant to "a fixed minimum sentence of not less than 180 days" in jail without eligibility for parole. State v. Harris, 439 N.J. Super. 150, 159 (App. Div.) (quoting N.J.S.A. 2C:40-26(c)), certif. denied, 221 N.J. 566 (2015).

Defendant applied for PTI, and the PTI Director recommended that defendant be admitted into the program. However, the Morris County Prosecutor's Office rejected defendant's enrollment application.

In a September 16, 2014 letter, an assistant prosecutor explained that upon consideration of the relevant factors enumerated in N.J.S.A. 2C:43-12(e), in line with Rule 3:28, several factors militated against defendant's admission into PTI, including the nature of the offense. The prosecutor also noted that the Legislature had determined to impose a mandatory jail sentence without parole for violations of N.J.S.A. 2C:40-26(b) to deter such conduct, and the need to deter would be undermined if someone charged with this offense were permitted to escape prosecution through a diversionary program.

The prosecutor acknowledged applicable mitigating factors, including defendant's lack of a criminal record, his employment history, and the fact that he was not intoxicated at the time of the offense. However, the prosecutor found that those factors did not outweigh the strong need to deter.

Defendant filed a motion to compel his entry into the program. In response to the motion, the assistant prosecutor filed a letter brief repeating the reasons set forth in his September 16, 2014 letter. At the conclusion of the brief, the prosecutor stated

If the statute did not call for mandatory jail then . . . [d]efendant would be an acceptable candidate for PTI and the State would have no issue consenting to his acceptance into the program. However, because the statute leaves the State and the [c]ourt with no discretion [to impose a non-custodial term for a conviction under N.J.S.A. 2C:40-26(b)] and the Appellate Division has already ruled on the issue [in State v. French, 437 N.J. Super. 333 (App. Div. 2014), certif. denied, 220 N.J. 575 (2015)], it is clear that . . . [d]efendant should be denied PTI as the needs and interests [of] society weigh in the favor of a traditional prosecution.

Following oral argument on February 26, 2015, the trial judge ordered the State to reconsider its decision to deny defendant's PTI application. In a brief oral opinion, the judge expressed concern that, contrary to the detailed discussion of a number of factors supporting the decision set forth in the September 16, 2014 letter, the assistant prosecutor's letter brief indicated that the State may have applied "an absolute bar" to defendant's request for PTI admission based solely on the charge he faced. Thus, the judge "vacated" the State's rejection of defendant's application and ordered the prosecutor's office to reconsider the application based on all of the relevant factors.

In response, a second assistant prosecutor issued an even more detailed letter on March 17, 2015, again rejecting defendant's application. In that letter, and in a subsequent letter brief, the prosecutor made clear that her office did not employ a per se rule absolutely barring anyone charged under N.J.S.A. 2C:40-26(b) from PTI and, instead, had based its decision on a consideration of all of the applicable factors.

In addition to the mitigating factors discussed in the first denial letter, the prosecutor noted that she had reviewed three character reference letters defendant submitted in support of his application. However, the prosecutor found that these mitigating factors were insufficient to warrant approval of defendant's application.

In reaching this decision, the State again gave significant weight to the nature of the offense and the mandatory custodial sentence that would be imposed if defendant were convicted. The prosecutor noted that defendant already had three convictions for driving while his license was suspended for DWI, three DWI convictions, and a "deplorable driving record[,]" which demonstrated "that he ha[d] repetitively engaged in reckless behavior and showcased a persistent disregard for the law." The prosecutor highlighted the need to deter conduct of this nature, and observed that, even though defendant had previously "been subject to both rehabilitative and punitive measures short of incarceration," he continued to drive while his license was suspended for DWI. Thus, the prosecutor concluded that defendant "would not be amenable to change through supervisory treatment."

Defendant again moved to require the State to admit him into PTI. On August 10, 2015, the judge granted defendant's motion. In a written decision, the judge found that the State had not "considered any of the mitigating factors[;]" "misconstrue[d] . . . defendant's prior history" by failing to note that defendant had not been convicted of DWI since 2005; and did not adequately explain why the State rejected the application in the second decision, after stating in its first letter brief that, except for the mandatory custodial sentence required for a conviction under N.J.S.A. 2C: 40-26(b), defendant would be an "acceptable candidate for PTI . . . ." This appeal followed.2

On appeal, the State contends that the trial judge erred in admitting defendant into PTI over its objection. Based upon our review of the record and applicable law, we agree.

We first address our standard of review. "Issues concerning the propriety of the prosecutor's consideration of a particular [PTI] factor are akin to 'questions of law[.]'" State v. Maddocks, 80 N.J. 98, 104 (1979). "Consequently, on such matters an appellate court is free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105; see also State v. K.S., 220 N.J. 190, 199 (2015) (holding that a prosecutor may not consider prior dismissed charges for any purpose in connection with a PTI application where the facts related to the arrest are in dispute or have not been determined after a hearing); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

While we exercise de novo review over the propriety of considering a certain PTI factor, we afford prosecutors "broad discretion to determine if a defendant should be diverted." K.S., supra, 220 N.J. at 199. This discretion arises out of the prosecutor's charging authority. Id. at 200. "Accordingly, to overturn a prosecutor's decision to exclude a defendant from the program, the defendant must 'clearly and convincingly' show that the decision was a 'patent and gross abuse of . . . discretion.'" Ibid. (alteration in original) (quoting State v. Wallace, 146 N.J. 576, 582 (1996)).

We extend "enhanced" deference to the prosecutor's decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). The court's "severely limited" scope of review is designed to address "only the 'most egregious examples of injustice and unfairness.'" Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)). Although the prosecutor's discretion is not unlimited, we will rarely overturn the rejection of a PTI applicant. State v. Brooks, 175 N.J. 215, 225 (2002), overruled in part by K.S., supra, 220 N.J. at 199.

The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" State v. Roseman, 221 N.J. 611, 621 (2015) (alteration in original) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). In rendering his or her decision, the prosecutor must "make an individualized assessment of the defendant" and consider whether the defendant is amenable to rehabilitation. Id. at 621-22 (citing Watkins, supra, 193 N.J. at 520).

A prosecutor must set forth his or her reasons for rejecting a PTI candidate. State v. Nwobu, 139 N.J. 236, 248-49 (1995). A prosecutor "may not simply 'parrot' the language of relevant statutes, rules, and guidelines." Id. at 249 (quoting State v. Sutton, 80 N.J. 110, 117 (1979)). Among other purposes, a detailed, defendant-specific statement of reasons enables a defendant to respond, promotes confidence in the prosecutor's decision-making, and facilitates judicial review. Ibid. The prosecutor may not weigh inappropriate factors or ignore appropriate factors. K.S., supra, 220 N.J. at 200.

To meet the "patent and gross abuse of discretion" standard to justify supplanting the prosecutor's decision, a defendant must satisfy one of three factors and must also show the prosecutor's decision undermines the purposes of PTI

Ordinarily, an abuse of discretion will be manifest if defendant can show that a 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 of judgment. . . . In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[Roseman, supra, 221 N.J. at 625 (alteration in original) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

Guided by these considerations, we are satisfied that the trial judge's findings regarding the State's articulated reasons for rejecting defendant's admission into PTI are simply not supported by the record. Rather, the judge's conclusions reflect substitution of his own judgment over that of the prosecutor.

Contrary to defendant's assertion, the prosecutor did not give short shrift to the personal facts of defendant's case, such as this being his first indictable offense, his employment history, the three character reference letters, or the fact that he was not intoxicated when he was arrested. Nor did the prosecutor's office arbitrarily reject defendant's application based on a per se rule, or place improper, undue weight on the perceived legislative intent of deterrence based on the mandatory incarceration provisions of N.J.S.A. 2C:40-26(c). Rather, the State considered the appropriate factors, taking into consideration defendant's specific circumstances, and identified with detailed particularity the basis for its rejection of defendant's PTI application.

With three DWI convictions, and three convictions for driving while suspended for DWI, defendant again chose to operate a motor vehicle during a period of his license suspension. As we made clear in State v. Carrigan, 428 N.J. Super. 609, 613-14 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013), the public need for prosecution for violations of N.J.S.A. 2C:40-26(b) by a mandatory 180 days of incarceration without parole has been prompted "by reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license."

Defendant argues that the State took "irreconcilable positions" concerning defendant's PTI application, and was required to admit him into PTI when the judge remanded the matter to the prosecutor's office for reconsideration. We disagree.

In each of its decisions, the State determined that defendant should not be admitted into PTI. Therefore, its position in this case has always been consistent. When the trial judge expressed concern that the State may have applied a per se rule denying PTI to all applicants charged under N.J.S.A. 2C:40-26(b), he ordered the prosecutor's office "to reconsider and give a more definite statement" concerning its reasons for denying defendant's application. The State fully complied with that directive in its March 17, 2015 decision.

In sum, the State considered the relevant factors and exercised permissible discretion in rendering its determination. Under these circumstances, we discern no patent and gross abuse of discretion by the State in denying defendant's admission into PTI.


1 Defendant also had numerous other convictions for speeding, careless driving, reckless driving, and other motor vehicle violations.

2 On August 12, 2015, a different judge stayed the order admitting defendant into PTI pending appeal.

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