Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. NICOLE D. ZAMBRANO-QUILLEN

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1181-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NICOLE D. ZAMBRANO-QUILLEN,

     Defendant-Appellant.
___________________________

              Submitted November 2, 2017 – Decided November 13, 2017

              Before Judges Simonelli and Haas.

              On appeal from the Superior Court of New
              Jersey, Law Division, Gloucester County,
              Indictment No. 15-04-0268.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Paul B. Halligan, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Sean F. Dalton, Gloucester County Prosecutor,
              attorney for respondent (Katherine Mika,
              Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant     Nicole    D.   Zambrano-Quillen       appeals     from       the

November 4, 2016 Law Division order, which denied her motion to
compel entry into the Gloucester County pre-trial intervention

(PTI) program pursuant to 
N.J.S.A. 2C:43-12(f).              We affirm.

       At approximately 10:42 p.m. on November 15, 2014, defendant

made   a   left   turn   off   State    Highway   42   in   Williamstown       and

encroached the path of the other vehicle, causing a collision.

Both defendant and the driver of the other vehicle sustained

injuries and were transported to the hospital for treatment.                      A

sample of defendant's blood obtained via search warrant revealed

her blood alcohol content was 0.283 percent, three times over the

legal limit of 0.08 percent.           
N.J.S.A. 39:4-50.

       A grand jury indicted defendant for fourth-degree assault by

auto while in violation of 
N.J.S.A. 39:4-50 and bodily injury

results,    
N.J.S.A.     2C:12-1(c)(2).        Defendant     was   also    issued

summonses for driving while intoxicated (DWI), 
N.J.S.A. 39:4-50;

reckless driving, 
N.J.S.A. 39:4-96; failure to wear a seatbelt,


N.J.S.A. 39:3-76.2; and having an open container of alcohol in her

vehicle, 
N.J.S.A. 39:4-51b.

       Defendant applied for admission to the PTI program.                     The

Criminal    Division     Manager     (CDM)   considered     all    the   material

defendant submitted as well as the factors set forth in 
N.J.S.A.

2C:43-12,    Rule    3:28,     and     the   Guidelines,     and    denied     the

application.      The CDM noted that under Guideline 3(i), assessment

of the nature of the offense, there is a presumption against

                                        2                                 A-1181-16T3
admission into PTI if the offense charged involved violence or

threat of violence in the absence of compelling facts and material

provided by the defendant, justifying admission.                      The CDM found

that defendant made the decision to operate her vehicle while

under the influence of alcohol, and defendant's choice clearly

created    a    risk    of   violence   and      injury,    as   evidenced   by    the

collision and injuries she and the other driver sustained.                         The

CDM also noted defendant had a prior DWI conviction in Bucks

County, Pennsylvania, where the court sentenced her in 2005 to not

less than three days and not more than six months in the county

jail.     The CDM concluded as follows:

               Given the violence and injury suffered during
               the present offense, coupled with defendant's
               prior motor vehicle conviction for [DWI], it
               is the opinion of this office that [defendant]
               has   not    presented   compelling    reasons
               justifying admission into the [PTI] program
               nor has she established that a decision
               against enrollment would be arbitrary and
               unreasonable.

     The       prosecutor     issued    a       written    decision    denying     the

application.       The prosecutor considered the factors set forth in


N.J.S.A. 2C:43-12, Rule 3:28, and the Guidelines, and concurred

with the CDM's reasons for rejecting defendant's application for

admission into the PTI program.

     Defendant         appealed   the   prosecutor's        decision   to    the   Law

Division.      The court denied the appeal, finding the prosecutor did

                                            3                                A-1181-16T3
not improperly or inappropriately consider the factors of the

case, and there was no patent and gross abuse of discretion.

      Defendant then pled guilty to fourth-degree assault by auto

and DWI.   The court sentenced defendant in accordance with the

plea agreement to a one-year non-custodial term of probation.              The

court also imposed a seven-month driver's license suspension,

ordered defendant to install an ignition interlock device during

the   suspension   term   and   pay       restitution,   and   imposed    the

appropriate fines, costs, and penalties.

      On appeal, defendant raises the following contention:

         POINT I

           THE PROSECUTOR'S REJECTION OF DEFENDANT FROM
           PTI, WHICH WAS BASED, SUBSTANTIALLY, ON A
           MISAPPLICATION OF THE STATUTORY BAR OF
           
N.J.S.A.    2C:12-12    AND   [RULE]    3:28,
           GUIDELINE[]3(i)(3) AND A MISUNDERSTANDING OF
           DEFENDANT'S    BURDEN    IN    PROVING    HER
           ADMISSIBILITY,   CONSTITUTED  AN   ARBITRARY,
           PATENT AND GROSS ABUSE OF DISCRETION.

We have considered this argument in light of the record and

applicable legal principles and conclude it is without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

However, we make the following comments.

      A "[d]efendant generally has a heavy burden when seeking to

overcome a prosecutorial denial of his admission into PTI."              State

v. Watkins, 
193 N.J. 507, 520 (2008) (citing State v. Nwobu, 139


                                      4                             A-1181-16T
3 N.J. 236, 246-47 (1995)).      In 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."   State v. Hoffman, 
399 N.J. Super. 207, 213

(App. Div. 2008) (quoting State v. Watkins, 
390 N.J. Super. 302,

305 (App. Div. 2007), aff'd, 
193 N.J. 507 (2008)); see also State

v. Negran, 
178 N.J. 73, 82 (2003); State v. Brooks, 
175 N.J. 215,

225 (2002).

    Here, there is no evidence, let alone clear and convincing

evidence, of a patent and gross abuse of discretion.       To the

contrary, the record confirms that the prosecutor considered the

relevant factors and did not rely on inappropriate factors.     The

prosecutor did not rely solely on the nature of the offense, the

injury to another, the prior DWI conviction, or defendant's BAC

at the time of the accident.    Rather, the prosecutor relied on a

combination of these and other factors as set forth in 
N.J.S.A.

2C:43-12(e).

    Affirmed.




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