STATE OF NEW JERSEY v. JAMES FOTINATOS

NOT FOR PUBLICATION WITHOUT THE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-3266-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMES FOTINATOS,

     Defendant-Appellant.
__________________________

              Argued November 16, 2017 – Decided December 6, 2017

              Before Judges Simonelli and Haas.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              16-09-1156.

              Cecilia M.E. Lindenfelser argued the cause for
              appellant.

              Kerry J. Salkin, Assistant Prosecutor, argued
              the cause for respondent (Esther Suarez,
              Hudson County Prosecutor, attorney; Ms.
              Salkin, on the brief).

PER CURIAM

        Defendant James Fotinatos appeals from the August 11, 2016

Law Division order, which denied his appeal of the Hudson County

Prosecutor's denial of his application for entry into the pre-
trial intervention (PTI) program pursuant to 
N.J.S.A. 2C:43-12(f).

We affirm.

     Prior to March 2016, defendant was convicted four times of

driving while intoxicated (DWI): on May 3, 2000, September 7,

2000, April 18, 2001, and May 2, 2007.                 Defendant was also

convicted four times of driving when his license was suspended

(DWS): on September 6, 2000, September 7, 2000, April 20, 2004,

and November 24, 2009.       On March 5, 2016, defendant was charged

with several motor vehicle offenses and fourth-degree operating a

motor vehicle during a period of license suspension for DWI,


N.J.S.A. 2C:40-26(a) and (b).        (Da2)

     Defendant applied for admission into PTI.                The criminal

division manager determined he was an inappropriate PTI candidate

and rejected his application.        The prosecutor subsequently issued

a written decision denying the application.           As a reason for the

denial,   the   prosecutor   cited    the    extent   to   which   the     crime

constitutes part of a continuing pattern of anti-social behavior

based on defendant's driving record.          
N.J.S.A. 2C:43-12(e)(8).

     Defendant filed a motion to compel admission into PTI.                     He

argued, as he does in this appeal, that his prior DWI and DWS

convictions were too temporally distant to the current offense to

support the prosecutor's reliance on a continuing pattern of anti-

social behavior to deny PTI admission.         The motion judge disagreed

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and held there was no patent and gross abuse of discretion by the

prosecutor's decision to deny PTI admission. This appeal followed.

      We have held that

                  PTI is a diversionary program designed
             to "augment the options of prosecutors in
             disposing of criminal matters . . . [and]
             provide applicants 'with opportunities to
             avoid ordinary prosecution by receiving early
             rehabilitative services or supervision, when
             such services or supervision can reasonably
             be expected to deter future criminal behavior
             by an applicant.'"

             [State v. Motley, 
369 N.J. Super. 314, 320
             (App. Div. 2004) (alteration in original)
             (quoting State v. Brooks, 
175 N.J. 215, 223
             (2002)).]

To    gain   admission,     a   defendant    must     obtain   a   positive

recommendation from the PTI director and the consent of the

prosecutor.     Ibid.

      Prosecutors are granted "wide latitude in deciding whom to

divert into the PTI program and whom to prosecute through a

traditional trial."       State v. Negran, 
178 N.J. 73, 82 (2003).          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) (citation omitted).           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.


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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 Negran, supra, 
178 N.J. at 82.                           "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.'"      Watkins, supra, 
193 N.J. at 520 (quoting State

v. Wallace, 
146 N.J. 576, 582-83 (1996)).             "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 in judgment."     State v. Bender, 
80 N.J. 84, 93 (1979).

       Our scope of review of a PTI rejection is severely limited.

Negran, supra, 
178 N.J. at 82. We afford the prosecutor's decision

great deference, Wallace, supra, 
146 N.J. at 589, and will only

overturn a prosecutor's decision to deny PTI upon finding a patent

and gross abuse of discretion.              State v. Kraft, 
265 N.J. Super.
 106, 112-13 (App. Div. 1993).

       Applying these principles, we discern no reason to disturb

the judge's ruling.         The prosecutor rejected defendant's PTI

admission   for   the   charge     of   DWS    because    of   his    four     prior

convictions    for    the   same    reason,      compounded      by    four       DWI

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convictions. A prosecutor may consider an applicant's past driving

record to establish a pattern of anti-social behavior where, such

as here, the offenses are not too temporally distant.      Negran,

supra, 
178 N.J. at 84-85.    Clearly, defendant's repetitive and

dangerous behavior of DWI and DWS and disregard for the law

demonstrates a pattern of anti-social behavior.   We conclude that

the judge properly found there was no patent and gross abuse of

discretion by the prosecutor's decision to deny PTI admission.     We

are satisfied that defendant was not appropriate for PTI admission.

Defendant's arguments to the contrary do not warrant further

discussion.   R. 2:11-3(e)(2).

     Affirmed.




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