STATE OF NEW JERSEY v. MANSI PATEL
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0718-17T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MANSI PATEL,
Defendant-Respondent.
________________________________
Argued May 3, 2018 – Decided May 14, 2018
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
16-12-1816.
Patrick F. Galdieri, II, Assistant Prosecutor,
argued the cause for appellant (Andrew C.
Carey, Middlesex County Prosecutor, attorney;
Patrick F. Galdieri, II, of counsel and on the
brief).
David A. Parinello argued the cause for
respondent (Law Office of Howard S.
Teitelbaum, LLC, attorney; David A. Parinello,
of counsel and on the brief).
PER CURIAM
The State appeals from the Law Division's September 28, 2017
order admitting defendant into the Pre-Trial Intervention (PTI)
program over the prosecutor's objection. We reverse.
During the evening of April 20, 2016, defendant drank four
glasses of wine during a meal of "pizza, mac + cheese, [and] french
fries" at a restaurant. Sometime later, she got in her Porsche
Cayenne, and began driving. Around 11:00 p.m., she swerved across
a double yellow center line into the oncoming traffic and crashed
head-on into the victim's Toyota Camry. The impact of defendant's
car smashing into the victim's vehicle caused her Porsche to
overturn. The victim's car was severely damaged, and both drivers
were trapped in their vehicles until rescue workers extricated
them.
Defendant was not injured in the crash and she refused medical
attention at the scene. However, the victim sustained fractures
to his nose, sternum, and hand. He had to be taken to the hospital,
where he underwent surgery. The victim remained in the hospital
until his discharge on April 24, 2016. The victim was unable to
work for approximately one month. In addition, his Toyota "was
totaled for $5,500 and was taken to the junkyard."
Defendant told the investigating police officer that as she
was driving, "she saw her cell phone illuminating and when she
reached for it in the passenger seat, she saw oncoming headlights
2 A-0718-17T1
and the crash occurred." However, the officer smelled the odor
of alcohol as soon as defendant began speaking. The officer
observed that defendant's "eyelids were droopy, her eyes were
watery, her movements were lethargic[,] and she was swaying as she
sat on the stretcher" provided to her by the first aid squad.
Because of the officer's observations, he performed a series
of field sobriety tests on defendant and she failed each of them.
Defendant was unable to maintain her balance while walking,
continued swaying, and had to take the arm of another officer to
remain on her feet. At that point, the officer arrested defendant
for driving while intoxicated (DWI), and transported her to the
police station.
At the police station, the officer attempted to administer
the Alcotest, and began a twenty-minute observation period.
However, defendant vomited, and the officer began another twenty-
minute observation period. Once again, defendant vomited.
Finally, the officer was able to complete the full twenty-minute
observation period and performed the Alcotest. The test revealed
that defendant's blood alcohol content (BAC) was 0.09%, which was
over the legal limit.
Based upon these facts, a grand jury charged defendant in a
four-count indictment with second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count one); third-degree assault by auto,
3 A-0718-17T
1 N.J.S.A. 2C:12-1(c)(2) (count two); fourth-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(3) (count three); and fourth-degree
assault by auto,
N.J.S.A. 2C:12-1(c)(1) (count four).1
Defendant applied for PTI. Eligibility for PTI is based
primarily on "the applicant's amenability to correction,
responsiveness to rehabilitation and the nature of the offense."
N.J.S.A. 2C:43-12(b). "Admission [into the PTI program] requires
a positive recommendation from the PTI director and the consent
of the prosecutor." State v. Negran,
178 N.J. 73, 80 (2003)
(citing State v. Nwobu,
139 N.J. 236, 246 (1995)). A determination
whether to admit a defendant is "'primarily individualistic in
nature,' and a prosecutor must consider an individual defendant's
features that bear on his or her amenability to rehabilitation."
Nwobu,
139 N.J. at 255 (quoting State v. Sutton,
80 N.J. 110, 119
(1979)). In determining eligibility, prosecutors and PTI program
directors must consider the factors set forth in
N.J.S.A. 2C:43-
12(e), Rule 3:28, and the accompanying Guidelines to that Rule
(Guidelines), which "elucidate the 'purposes, goals, and
1
The police also issued summonses to defendant for DWI,
N.J.S.A.
39:4-50; reckless driving,
N.J.S.A. 39:4-96; careless driving,
N.J.S.A. 39:4-97; and failure to maintain a lane,
N.J.S.A. 39:4-
88(b).
4 A-0718-17T1
considerations relevant to PTI.'" Negran,
178 N.J. at 80-81
(quoting State v. Brooks,
175 N.J. 215, 223 (2002)).
After reviewing defendant's application, interviewing her,
and attempting to speak to the victim,2 the Criminal Division
Manager, serving as the PTI director (the director), provided a
report to the prosecutor and recommended that defendant not be
admitted into the program. In her detailed report, the director
considered the mitigating information presented by defendant,
including her: lack of a prior record; completion of college;
relative youth,3 apparent lack of substance abuse issues; and prior
three-month temporary employment. However, the director concluded
that these nonidiosyncratic factors did not outweigh the serious
nature of the offenses and the facts of the case. The director
also noted that defendant admitted during her interview that she
consumed alcohol on at least one occasion after she injured the
victim as a result of her alcohol consumption.
Thereafter, an assistant prosecutor (prosecutor) notified
defendant that the State did not consent to PTI. In her written
2
At the time the director spoke to the victim, he declined to
take a position on whether defendant should be admitted to PTI
because he first wanted to talk to his attorney, who was pursuing
a civil lawsuit against defendant.
3
Defendant was twenty-two years old at the time she drove her
car into the victim's vehicle.
5 A-0718-17T1
decision, and in a subsequent brief the State presented to the
trial court, the prosecutor considered each and every one of the
factors set forth in
N.J.S.A. 2C:43-12(e), Rule 3:28, and the
accompanying Guidelines. As did the director, the prosecutor
noted that the offenses were very serious, and included a second-
degree aggravated assault charge. The victim had to be
hospitalized for surgery, missed work, and suffered the loss of
his car. In spite of the fact that defendant was legally
intoxicated at the time she crashed into the victim, she drank
again just four months later. As did the director, the prosecutor
considered applicable mitigating factors. However, the prosecutor
found that those facts did not outweigh the strong need to deter.
At the time the State filed these written submissions, the
victim still did not want to make a statement. However, at oral
argument on defendant's request for admission to PTI, the
prosecutor advised the trial judge that the victim, through his
attorney, was "not comfortable" with defendant's application.
Although the victim was not "looking for [defendant] to go to
jail[,]" he believed defendant "does need to face some kind of
consequence here" and should not be permitted to "leav[e] this
case with no record."
After the State sent defendant the first letter, she obtained
a report from the Alpha Healing Center, indicating that she did
6 A-0718-17T1
not have a problem with drugs or alcohol. Defendant also completed
a six-hour safe driving course, and submitted two character
reference letters. The prosecutor considered these documents, and
continued to object to defendant's admission to PTI.
Defendant filed a motion to compel her entry into the program.
Following oral argument, the trial judge rendered a written
decision, reversing the prosecutor's determination and admitting
defendant into PTI. Although the judge found that the prosecutor
had considered all of the relevant factors, she determined that
the prosecutor had incorrectly weighed them in denying defendant's
application.
In so ruling, the judge first concluded that the prosecutor
gave too much weight to the nature of defendant's offenses and the
facts underlying them. Without considering that defendant was
charged with second-degree aggravated assault,4 the judge stated
that defendant's crimes were "diminished by the low BAC reading,
along with its questionable validity and the potential for an
alternate cause of the accident, namely, reaching for a cell
phone." The judge further opined that "if the alcohol issue were
4 Guideline 3(i)(3) states that a defendant charged with a second-
degree offense "should ordinarily not be considered for enrollment
in a PTI program except of joint application by the defendant and
the prosecutor." No such joint application was submitted in this
case.
7 A-0718-17T1
excised from the facts, and we were faced solely with the alleged
reckless behavior of reaching for a cell phone as the cause of the
accident, the stigma of drunk driving and the apparent automatic
rejection would be negated."
In this regard, the judge found that although the prosecutor
considered all the required factors, the prosecutor made a "per
se" rejection of defendant's PTI application simply because she
was intoxicated at the time she crashed into the victim's car and
caused him to be hospitalized. The judge held that despite the
information to the contrary set forth in the prosecutor's written
submissions, the prosecutor "engaged in a categorical rejection
based upon the offenses that is proscribed by the case law."5
The judge also criticized the prosecutor for relying upon the
same facts in her consideration of factors one, two, and three
under
N.J.S.A. 2C:43-12(e). In addition, the judge stated that
the prosecutor placed too much emphasis on defendant's decision
to drink alcohol again after she injured defendant, and failed to
give sufficient weight to the fact that defendant was a college
graduate, held a job for approximately two months prior to her
arrest, and "aspire[d] to a bright future[.]"
5
In support of this conclusion, the judge cited State v.
Caliguiri,
305 N.J. Super. 9 (App. Div. 1997), a decision we will
discuss further below.
8 A-0718-17T1
The judge also found that the prosecutor gave too much weight
to the victim's opposition to PTI. The judge reasoned that since
the victim stated he did not think defendant should go to jail,
he did not really oppose PTI, which the judge stated would involve
a period of supervision akin to probation. The judge stayed her
decision pending the resolution of the State's appeal.
On appeal, the State argues the trial judge incorrectly
substituted her judgment for that of the prosecutor, and that the
prosecutor's decision to reject defendant's PTI application was
based upon a thorough consideration of all appropriate factors and
did not constitute a gross and patent abuse of discretion. We
agree.
Established precedents guide our task on appeal. The decision
whether to accept or reject a defendant's PTI application is
essentially a prosecutorial function. State v. Leonardis,
73 N.J.
360, 381 (1977). Therefore, 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). "In respect of the close relationship of the PTI program
to the prosecutor's charging authority, courts allow prosecutors
wide latitude in deciding whom to divert into the PTI program and
whom to prosecute through a traditional trial." Negran,
178 N.J.
at 82.
9 A-0718-17T1
Indeed, "[b]ecause of the recognized role of the prosecutor,
we have granted enhanced deference to prosecutorial decisions to
admit or deny a defendant to PTI." State v. DeMarco,
107 N.J.
562, 566 (1987) (citing State v. Dalglish,
86 N.J. 503, 513-14 n.1
(1981)). Accordingly, there is an "expectation" by the Supreme
Court that a prosecutor's decision to reject a PTI applicant "will
rarely be overturned." State v. Wallace,
146 N.J. 576, 585 (1996)
(quoting Leonardis,
73 N.J. at 380).
"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. 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." State
v. K.S.,
220 N.J. 190, 199 (2015). This discretion arises out of
the prosecutor's charging authority. Id. at 200.
It has been long-established that the scope of judicial review
of a prosecutor's decision to reject a defendant's application
into PTI is "severely limited" and "serves to check only 'the most
egregious examples of injustice and unfairness.'" Negran, 178
10 A-0718-17T
1 N.J. at 82 (quoting Leonardis,
73 N.J. at 384). "Prosecutorial
discretion in this context is critical for two reasons. First,
because it is the fundamental responsibility of the prosecutor to
decide whom to prosecute, and second, because it is a primary
purpose of PTI to augment, not diminish, a prosecutor's options."
Nwobu,
139 N.J. at 246 (quoting State v. Kraft,
265 N.J. Super.
106, 111-12 (App. Div. 1993)).
"A trial court does not evaluate a PTI application 'as if it
[stands] in the shoes of the prosecutor.'" State v. Hoffman,
399 N.J. Super. 207, 216 (App. Div. 2008) (quoting Wallace,
146 N.J.
at 589). Moreover, a trial court "cannot substitute its own
judgment for that of the prosecutor even when 'the prosecutor's
decision is one which the trial court disagrees with or finds to
be harsh.'" Ibid. (quoting Kraft,
265 N.J. Super. at 112-13).
Therefore, the question presented to a trial court reviewing a
defendant's appeal from a prosecutor's denial of a PTI application
"is not whether [the court] agree[s] or disagree[s] with the
prosecutor's decision, but whether the prosecutor's decision could
not have been reasonably made upon weighing the relevant factors."
Nwobu,
139 N.J. at 254.
In order for a defendant to succeed in overturning the
prosecutor's denial of his or her admission into PTI, the defendant
must "clearly and convincingly establish that the prosecutor's
11 A-0718-17T1
decision constitutes a patent and gross abuse of discretion."
Watkins,
193 N.J. at 520. An abuse of prosecutorial discretion
is established when a defendant demonstrates "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. Roseman,
221 N.J. 611, 625 (2015) (quoting
State v. Bender,
80 N.J. 84, 93 (1979)). "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" PTI. Ibid.
Guided by these principles, we are constrained to conclude
that the trial judge mistakenly ordered defendant's admission into
PTI over the prosecutor's objection. We are convinced from our
review of the record that the prosecutor considered, weighed, and
properly balanced all of the requisite factors, including those
personal to defendant as well as the facts and circumstances of
the offenses.
The linchpin of the judge's contrary conclusion, and of
defendant's appellate arguments in support of the judge's
decision, was the judge's belief that the prosecutor "engaged in
a categorical rejection" of defendant's application based solely
upon the fact that defendant was driving while intoxicated when
12 A-0718-17T1
she drove into the victim's car. In so ruling, the judge relied
upon our decision in Caliguiri. In that case, we held that a
categorical exclusion from PTI based solely on the nature of the
offense without consideration of the individual defendant was
patently and grossly arbitrary. Caliguiri,
305 N.J. Super. at 17.
However, Caliguiri is completely distinguishable from the case at
hand.
Caliguiri was a consolidated case involving two different
defendants.
305 N.J. Super. at 12. One of the defendants, Munos,
was indicted for assault by auto while intoxicated. Id. at 16-
17. The prosecutor in the Munos case did not provide a statement
of reasons for the denial of PTI and, instead, merely stated:
[D]iversion in cases such as this would serve
to undermine the joint efforts of [the
prosecutor's office] and the sentencing courts
in this [c]ounty to create an atmosphere
wherein it is always known that persons who
drink to excess and injure others by driving
their vehicles when they are under the
influence of alcohol will face vigorous
prosecution for their conduct. Any other
result would be a disservice to the public
interest.
[Id. at 17.]
In affirming the court's order compelling Munos's admission to
PTI, we agreed that the prosecutor arbitrarily rejected the
defendant solely based on the category of the offense (assault by
13 A-0718-17T1
auto) without analyzing the Guidelines and statutory factors "of
the offense and the offender." Ibid.
This was certainly not the case here where, unlike in
Caliguiri, the prosecutor's rejection of defendant's application
for PTI was predicated on specific enumerated statutory factors
and considerations identified in the Guidelines and applicable to
the facts of defendant's case. The prosecutor evaluated every
factor, including mitigating factors, and did not categorically
exclude assault by auto offenses from PTI. The prosecutor also
considered relevant and rational evidence in the record, and
treated defendant as an individual. Therefore, the judge
incorrectly relied upon Caliguiri, and mistakenly overturned the
prosecutor's reasoned decision denying defendant's PTI
application.
The judge made other mistakes that require reversal. For
example, the judge determined that defendant had several possible
defenses that might negate the results of the Alcotest. However,
it is well-established that "the PTI process is not designed to
assess the weight of the State's case. '[T]he appropriate
administration of the program militates against basing enrollment
upon the weight of the evidence of guilt.'" Nwobu,
139 N.J. at
252 (quoting State v. Smith,
92 N.J. 143, 147 (1983)). Indeed,
as our Supreme Court observed thirty-five years ago,
14 A-0718-17T1
"[c]onsideration of guilt or innocence is in fact inconsistent
with Guideline 4 that conditions enrollment in PTI programs upon
neither informal admission nor entry of a plea of guilt." Smith,
92 N.J. at 147. Thus, the judge erred by considering defendant's
possible defenses to the admission of the Alcotest results.
In making this mistake, the judge also ignored the equally
well-settled rule that a DWI conviction may be based upon physical
evidence, such as symptoms observed by the arresting police officer
or failure of the defendant to perform adequately on balance and
coordination tests. State v. Liberatore,
293 N.J. Super. 580, 589
(Law Div. 1995), aff’d o.b.,
293 N.J. Super. 535 (App. Div. 1996).
A defendant's demeanor, physical appearance, slurred speech, or
bloodshot eyes, together with an odor of alcohol or an admission
of the consumption of alcohol and poor performance on field
sobriety tests, are sufficient to sustain a DWI conviction. State
v. Bealor,
187 N.J. 574, 588-89 (2006).
Here, defendant admitted she drank four glasses of wine
earlier in the evening, smelled of alcohol, had watery eyes and
droopy eyelids, and was swaying even while sitting. She failed
all of the field sobriety tests and vomited twice at the police
station. Thus, even if the results of the Alcotest were
suppressed, and assuming that the account of the arresting officer
proves credible at trial, the record clearly supports the
15 A-0718-17T1
conclusion that defendant was driving while intoxicated.
Therefore, the judge erred by "excis[ing] [defendant's
intoxication] from the facts," and treating defendant's crashing
her car into another vehicle as a case of mere "reckless behavior."
There was also no basis for the judge's criticism of the
prosecutor's reliance upon the facts of this case to support her
findings on more than one of the statutory factors. As we noted
in State v. Lee, a prosecutor may rely upon "the State's version
of the facts where those facts [are] relevant to the applicable
PTI factors. The facts certainly can be discussed more than once
within a PTI denial letter, insofar as they may bear on the
discrete criteria for eligibility."
437 N.J. Super. 555, 570
(App. Div. 2014).
We also reject the judge's conclusion that the prosecutor
gave short shrift to the mitigating factors. Among other things,
the prosecutor considered defendant's age, her lack of a prior
criminal record, her college education, her employment history,
and her lack of past violent behavior. Contrary to the judge's
conclusion, there was simply nothing "extraordinary or unusual,
something 'idiosyncratic,' in . . . [defendant's] background" that
compelled her admission into the program over the prosecutor's
objection. Nwobu,
139 N.J. at 252-53 (citation omitted).
16 A-0718-17T1
Moreover, the prosecutor was entitled to consider, on the
other side of the ledger, the nature and facts of the case,
defendant's admission that she drank again after she struck the
victim while intoxicated, the personal and economic injuries the
victim sustained, and the victim's stated opposition to defendant
"leaving this case with no record."
In sum, the prosecutor evaluated the relevant factors and
exercised permissible discretion in rendering her determination.
Under these circumstances, we discern no patent and gross abuse
of discretion by the prosecutor in denying defendant's admission
into PTI. While it is possible that reasonable minds could differ
in analyzing and balancing the applicable factors in this case,
judicial disagreement with a prosecutor's reasons for rejection,
as occurred here, does not equate to prosecutorial abuse of
discretion so as to merit a judicial override of the prosecutor's
decision. DeMarco,
107 N.J. at 566-67. We are therefore
constrained to reverse.
Reversed.
17 A-0718-17T1
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