STATE OF NEW JERSEY v. WAYNE KACZOWSKI
Annotate this CaseNOT 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-2399-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE KACZOWSKI,
Defendant-Appellant.
____________________________
Submitted April 11, 2018 – Decided May 21, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 15-12-0683.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lauren S. Michaels, Assistant
Deputy Public Defender, of counsel and on
the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Wayne Kaczowski appeals the denial of his
application for admission into the pretrial intervention program
(PTI) after he was charged with violating
N.J.S.A. 2C:40-26(b), a
fourth-degree offense, by driving during a third license
suspension for driving while intoxicated (DWI),
N.J.S.A. 39:4-50.
We affirm.
On October 6, 2015, at 9:11 p.m., a North Plainfield police
officer conducted a motor vehicle stop of defendant's vehicle
after a random license plate inquiry revealed the driving
privileges of the registered owner were suspended and after noting
the license plate was partially obstructed by a license plate
frame.
Defendant was determined to be the driver and registered
owner of the vehicle. Investigation revealed defendant's driving
privileges were suspended for ten years on November 19, 2014, as
a result of a third DWI conviction. He had previously been
convicted of DWI on January 18, 2011 and January 5, 1999. Further
investigation revealed defendant had also failed to comply with a
November 19, 2014 order requiring the installation of an ignition
interlock device.
Defendant, then age 61, was charged with fourth-degree
driving while suspended for a second or subsequent violation of
N.J.S.A. 39:4-50, driving while suspended,
N.J.S.A. 39:3-40, and
improper display of plates,
N.J.S.A. 39:3-33. Defendant was
subsequently indicted by a grand jury for the fourth-degree
offense.
2 A-2399-16T2
Defendant applied for admission into PTI. The PTI Director
recommended defendant's PTI application be denied the following
reasons:
The crime(s) defendant is charged with
constitute part of a continuing pattern of
antisocial behavior, or the defendant has a
record of criminal and penal violations and
presents a substantial danger to others.
N.J.S.A. 2C:43-12e(8);
N.J.S.A. 2C:43-12e(9).
The defendant would not be benefitted by
supervisory treatment – his/her crime is
related to a condition or situation that
likely could not be corrected through
supervisory treatment.
N.J.S.A. 2C:43-
12e(6); see also
N.J.S.A. 2C:43-12e(5).
On 1/05/1999 the defendant was convicted of
Driving While Intoxicated and his license was
suspended for that offense. On 1/18/2011 the
defendant was cited for Driving While
Intoxicated and his license was suspended for
that offense. On 11/19/2014 the defendant was
again cited for Driving While Intoxicated and
his license was suspended for that offense.
It should be noted that the instant offense
carries a mandatory sentence of 180 days in
Jail upon conviction. Therefore the interest
of society would best be served through
prosecution in the traditional manner rather
than by diversion in the PreTrial Intervention
Program.
Defendant then filed a motion in the Law Division appealing
the PTI rejection. Defendant argued the PTI Director's
recommendation and failure to consider relevant factors
constituted an abuse of discretion. He noted the Prosecutor's
Office had not yet taken a position on the application. Defendant
3 A-2399-16T2
claimed the following circumstances warranted admission into PTI:
(1) he was stopped while driving home from a new job he had just
started, involving a thirty-mile commute; (2) while admitting he
was just beginning his ten-year suspension, he had only sporadic
employment since the recession began in 2008; (3) he needed the
income from the new job to support himself and his wife; (4) he
had no other reasonable way of commuting to work; (5) he was sober
when stopped and "had obeyed all rules of the road;" (6) his debt
load was high and he and his wife cared for his disabled father-
in-law; (7) a six-month sentence would be a financial burden and
emotionally difficult for his wife; (8) he was amenable to
treatment and had been sober since December 28, 2015; (9) he had
no prior criminal history and he was only a danger when driving
under the influence of alcohol; and (10) his driving while
suspended while sober did not pose a danger.
The Somerset County Prosecutor submitted an eleven-page
letter brief in opposition to defendant's application. After
recounting the underlying facts, defendant's DWI conviction
history, his repeated failures to obey court orders, and his other
moving violations, the Prosecutor's Office addressed each of the
seventeen statutory factors listed in
N.J.S.A. 2C:43-12(e). The
prosecutor noted defendant was serving a third DWI suspension and
his driving on October 6, 2015, came only eleven months after his
4 A-2399-16T2
ten-year suspension began. Thus, he had proven himself incapable
of living a law-abiding life. The prosecutor also noted defendant
had a "significant history of motor vehicle offenses," was "unable
to successfully overcome his alcohol problem," and "had repeatedly
elected to drive after consuming alcohol," which did not "bode
well for defendant's likelihood of success in the PTI program."
The prosecutor concluded "defendant's character traits reveal that
a more serious sanction may be necessary to deter defendant from
committing similar conduct in the future." The prosecutor also
expressed the "strong need to deter the defendant and society from
drinking and driving, and from driving without a license after
driving privileges have been suspended due to DWI." The prosecutor
also emphasized defendant's conduct "was potentially assaultive
and possessed a potential to result in serious harm" and that he
"has a history of conduct that had the potential to cause great
harm to others."
The prosecutor also addressed Guidelines 1, 2, 3 (a), and
3(i) of the Guidelines for Operation of Pretrial Intervention in
New Jersey, Pressler & Verniero, Current N.J. Court Rules,
Guidelines 1, 2, 3(a), and 3(i), following R. 3:28 at 1289-91
(2018). As to Guidelines 1 and 2, the Prosecutor noted:
"[D]efendant has failed at previous attempts to deter him from
driving while intoxicated, or to restrict his driving by imposing
5 A-2399-16T2
conditions such as installing an ignition interlock device. Thus,
defendant has demonstrated that he needs more severe sanctions to
deter him from committing future criminal conduct." As to
Guidelines 3 (a) and (i), the Prosecutor stated: "[D]efendant's
age, history, and the nature of the offense militate in favor of
prosecuting defendant through traditional means rather than
resolving this matter through a diversionary program."
Following oral argument, the trial court issued a May 2, 2016
order and thirteen-page written opinion denying the PTI appeal.
The opinion included a detailed review of defendant's contentions
and the prosecutor's basis for rejecting defendant's PTI
application, including the fact-specific analysis of the statutory
criteria set forth in the prosecutor's opposing letter brief. The
judge then engaged in the following analysis:
In this matter the [c]ourt does
sympathize with defendant who from the looks
of things has an alcohol problem which he is
trying to overcome. However, this does not
excuse his intentional disregard of the
restrictions placed on his driver's license.
Defendant drove his vehicle to his place of
employment while his driver's license was
suspended. Defendant also has a long history
of motor vehicle violations and seems to
disregard the rules of the road. Based on
this the [c]ourt cannot conclude that the
State's objection of the defendant[']s
application into PTI constituted a patent and
gross abuse of discretion.
6 A-2399-16T2
Upon review of the factors set forth in
N.J.S.A. 2C:43-12(e), this [c]ourt finds of
greatest concern factors (1) The nature of the
offense; (2) The facts of the case and (8) The
extent to which the applicant's crime
constitutes part of a continuing pattern of
anti-social behavior.
Here the defendant has a history of
serious [m]otor [v]ehicle violations which
reveal he is and has been a danger to persons
traveling on the roadways. Several times he
has consumed an excess amount of alcohol and
subsequently operated a motor vehicle.
Through the laws of this State [c]ourts have
made efforts to deter defendant from violating
[m]otor [v]ehicle laws and prevent him from
causing danger to others. These efforts have
not been successful. Defendant disregards
these sanctions that are placed on his driving
privileges and continues to operate his motor
vehicle. Therefore this [c]ourt does not find
the State has abused [its] discretion in
denying defendant admission into the PTI
program.
The case proceeded to trial. A jury found defendant guilty
of operating a motor vehicle during a period of license suspension
for a second or subsequent multiple DWI conviction. The trial
judge found defendant guilty of driving while suspended but not
guilty of having an obstructed license plate. On the fourth degree
offense, defendant was sentenced to a two-year probationary term
conditioned upon serving the mandatory 180-day jail term without
eligibility for parole. This appeal followed.
Defendant does not raise any issues relating to the jury
trial or his conviction for violating
N.J.S.A. 39:3-40. Rather,
7 A-2399-16T2
he appeals the denial of his PTI application, raising the following
arguments:
POINT I
THE PROSECUTOR'S REJECTION OF DEFENDANT'S
ADMISSION INTO PRETRIAL INTERVENTION WAS A
PATENT AND GROSS ABUSE OF DISCRETION BECAUSE
HE FAILED TO PROVIDE ANY REASON FOR HIS
DECISION.
A. Our law requires the prosecutor to
evaluate a PTI application based on an
individualized assessment of the
applicant's amenability to
rehabilitation, and to follow the
prescribed procedures that ensure both
meaningful appellate review.
B. The prosecutor's failure to provide a
statement of reasons for rejecting Mr.
Kaczowski is palpably deficient as it
fails to provide any reasons – let alone
valid ones – for withholding consent to
enter PTI.
C. Even if the PTI director's recommendation
against admission could be substituted
for consideration by the prosecutor
himself, the one-page check-off form
amounted to a per se rejection devoid of
individualized assessment of Mr.
Kaczowski or the circumstances of the
charged offense.
D. Had the prosecutor conducted a full and
fair evaluation of Mr. Kaczowski and the
charged offense, he would have admitted
him into PTI.
POINT II
EVEN CONSIDERING THE POST-HOC JUSTIFICATIONS
IN THE PROSECUTOR'S TRIAL BRIEF, THE
8 A-2399-16T2
PROSECUTOR'S REJECTION OF DEFENDANT'S
ADMISSION INTO PRETRIAL INTERVENTION IS A
PATENT AND GROSS ABUSE OF DISCRETION THAT
CLEARLY SUBVERTED THE GOALS UNDERLYING PTI,
WHICH MUST BE CORRECTED BY THIS COURT.
A. The prosecutor improperly enlarged the
basis for rejecting Mr. Kaczowski in its
brief before the trial court.
B. Even if, arguendo, the factors argued by
the State in its trial brief were
properly presented, Mr. Kaczowki's
rejection was still a patent and gross
abuse of discretion.
. . . .
POINT III
IN THE ALTERNATIVE, BECAUSE THE PROSECUTORIAL
VETO WAS BASED ALMOST ENTIRELY ON THE NATURE
OF THE CASE, THE CASE SHOULD BE REMANDED TO
ALLOW MR. KACZOWSKI TO MAKE A REASONABLE
REQUEST FOR DISCOVERY TO CHALLENGE WHAT
APPEARS TO BE THE APPLICATION OF A POLICY OF
REJECTING ALL APPLICANTS CHARGED WITH
VIOLATING
N.J.S.A. 2C:40-26(b). (. . . Request
for Discovery not raised below).
The criteria for admission into PTI, as well as the procedures
concerning the program, are set forth in
N.J.S.A. 2C:43-12 to -22
and Rule 3:28.
N.J.S.A. 2C:43-12(e) includes seventeen criteria
which, among other factors, prosecutors and program directors must
consider when deciding whether to accept or reject a PTI
application. Rule 3:28 is followed by eight guidelines. If a
prosecutor denies an application, he must "precisely state his
findings and conclusion which shall include the facts upon which
9 A-2399-16T2
the application is based and the reasons offered for the denial."
N.J.S.A. 2C:43-12(f).
Our review of a prosecutor's decision to deny a defendant
admission into PTI is "severely limited." State v. Negran,
178 N.J. 73, 82 (2003) (citations omitted). Judicial review of a PTI
application exists "to check only the most egregious examples of
injustice and unfairness." State v. Nwobu,
139 N.J. 236, 246
(1995) (quoting State v. Kraft,
265 N.J. Super. 106, 111, (App.
Div. 1993)). Absent evidence to the contrary, a reviewing court
must assume "the prosecutor's office has considered all relevant
factors in reaching the PTI decision." Nwobu,
139 N.J. at 249
(citing State v. Dalglish,
86 N.J. 503, 509 (1981)). A defendant
seeking to overrule a prosecutor's rejection of a PTI application
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 State v. Leonardis,
73 N.J. 360,
382 (1977)). We apply the same standard of review as the trial
court and review its decision de novo. State v. Waters,
439 N.J.
Super. 215, 226 (App. Div. 2015).
In State v. Rizzitello, we described the burden imposed on a
defendant seeking to overturn a prosecutorial rejection:
10 A-2399-16T2
To establish the prosecutor's rejection
of defendant's PTI application amounted to a
patent and gross abuse of discretion, a
defendant must prove, by clear and convincing
evidence,
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. . . . 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.
[
447 N.J. Super. 301, 313 (App. Div. 2016)
(quoting State v. Roseman,
221 N.J. 611, 625
(2015)).]
Having carefully considered defendant's arguments under these
standards, we conclude no grounds exist to disturb the trial
court's decision. The record demonstrates the prosecutor properly
considered and weighed the relevant factors in reaching his
decision to reject defendant's application. Thereafter, the trial
court conducted a thorough review of the prosecutor's decision.
On appeal, defendant advances no convincing argument that the
prosecutor's determination was a patent and gross abuse of
discretion.
Defendant has not shown the prosecutor's decision clearly
subverted the goals underlying PTI. Conversely, granting
11 A-2399-16T2
defendant PTI would not necessarily serve all the goals of PTI set
forth in
N.J.S.A. 2C:43-12(a)(1) to (5). Moreover, we cannot say
that the prosecutor's decision could not have been reasonably made
upon weighing the relevant factors. See Nwobu,
139 N.J. at 254.
We are not persuaded by defendant's argument that the
prosecutor has, in effect, created a per se rule against PTI
admission for defendants charged with violating
N.J.S.A. 2C:40-
26(b), basing his denial almost entirely on the nature of the
case. We recognize N.J.S.A. 2C:40-26(c) does not carry a
presumption against admission into PTI under either
N.J.S.A.
2C:43-12(b) or Guideline 3(i) to Rule 3:28. Rizzitello,
447 N.J.
Super. at 312-13. However, the absence of a presumption against
admission into PTI is not dispositive. As the prosecutor
explained, and the trial court acknowledged, the temporal
proximity of defendant's last DWI conviction, his two other DWI
convictions, and his failure to comply with the ignition interlock
order weighed against his admission to PTI, not merely the fact
that he was guilty of violating
N.J.S.A. 2C:40-26(b).
Generally, motor vehicle violations are not appropriate
factors for consideration, but, where the prosecutor indicates
that such violations are indicative of a pattern of anti-social
behavior, they may be considered. See Negran,
178 N.J. at 84-85.
Here, the prosecutor recounted defendant's prior DWI convictions
12 A-2399-16T2
in 2014, 2011, and 1999, and the resulting license suspensions to
explain the extent to which defendant's crime constituted part of
a continuing pattern of anti-social behavior,
N.J.S.A. 2C:43-
12(e)(8), and to show defendant was not amenable to the
rehabilitative process offered by the program,
N.J.S.A. 2C:43-
12(e)(2). In these circumstances, we find the prosecutor properly
relied upon the repetitive nature and timing of defendant's prior
DWI convictions and resulting license suspensions.
The prosecutor also gave significant weight to the "strong
need to deter the defendant and society from drinking and driving,
and from driving without a license after driving privileges have
been suspended due to DWI" by prosecuting violations of
N.J.S.A.
2C:40-26(b). The consideration of that factor was appropriate and
within the prosecutor's discretion. By enacting
N.J.S.A. 2C:40-
26(b), "the Senate intended to lodge 'criminal penalties for
persons whose [drivers'] licenses are suspended for certain drunk
driving offenses and who, while under suspension for those
offenses, unlawfully operate a motor vehicle.'" State v. Luzhak,
445 N.J. Super. 241, 245 (App. Div. 2016) (quoting S. Law and
Public Safety and Veterans' Affairs Comm. Statement to S. 2939
(November 23, 2009)). In State v. Carrigan, we noted the
"strengthened penalty" for violation of
N.J.S.A. 2C:40-26(b) was
"legislatively prompted, at least in part, by reports of fatal or
13 A-2399-16T2
serious accidents that had been caused by recidivist offenders
with multiple prior DWI violations, who nevertheless were driving
with a suspended license."
428 N.J. Super. 609, 614 (App. Div.
2012). As we recently noted:
We are mindful of the devastating toll that
impaired driving exacts upon society. We also
acknowledge the erosion of the enforcement
scheme that results from persons driving while
suspended. That is so, even if they are
unimpaired when they do so, although too often
they are impaired, resulting in tragic
consequences.
[State v. Rodriguez, ___ N.J. Super. ___ (App.
Div. 2018) (slip op. at 27).]
Defendant complains the PTI Director and the prosecutor did
not provide a full consideration of each statutory factor. If a
prosecutor does not consider factors that should be considered,
or does consider factors that should not be considered, a remand
may be appropriate. State v. K.S.,
220 N.J. 190, 200 (2015).
While the prosecutor did not initially respond to the PTI
Director's recommendation, the prosecutor's letter brief provided
a fact specific consideration of each relevant factor. Therefore,
a remand is unnecessary, as it would serve no useful purpose.
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
14 A-2399-16T2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
