STATE OF NEW JERSEY v. ROBERT J. HULME

NOT FOR PUBLICATION WITHOUT THE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-3857-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ROBERT J. HULME, a/k/a
JIM HULME,

        Defendant-Appellant.


              Submitted February 14, 2018 – Decided May 25, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Cape May County, Indictment No.
              16-02-0192.

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

              Jeffrey H. Sutherland, Cape May County
              Prosecutor, attorney for respondent (Julie H.
              Mazur, Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant Robert J. Hulme appeals the May                  18, 2017 Law

Division       order    denying     him    admission      into    the    pretrial
intervention (PTI) program.          
N.J.S.A. 2C:43-12 to -22.        We affirm

for the reasons stated by Judge John C. Porto. We add the following

brief comments.

      An   officer     stopped      defendant     when,     during    a    random

registration    check,       he    discovered    defendant's       license     was

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

That 2008 conviction had resulted in a ten-year license suspension.


N.J.S.A. 39:3-40.      His prior DWI convictions occurred in 1999 and

2002.      Defendant     was      therefore   charged      with   fourth-degree

operating a motor vehicle during a period of license suspension,


N.J.S.A. 2C:40-26(b).        Defendant's passenger was also a suspended

driver.

      Defendant initially entered a guilty plea to the indictment

in   exchange   for    the     State's   sentence   recommendation        of   the

statutory minimum of 180 days county jail.                After publication of

State v. Rizzitello, 
447 N.J. Super. 301 (App. Div. 2016), however,

he applied for PTI.      Rizzitello holds that an 
N.J.S.A. 2C:40-26(b)

charge is not a per se bar to admission into PTI.                 Id. at 312.

      At the time of his PTI application, defendant was fifty-four

years old and in a long-term relationship with a person who

obtained a domestic violence final restraining order against him

in 1999.     See 
N.J.S.A. 2C:25-29.             Defendant was convicted of

contempt of an earlier domestic violence restraining order and,

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in 1994, placed on a one-year term of probation.                He also had an

active    "failure    to   pay"   municipal    bench    warrant     for    a   2008

ordinance violation arrest.

       The Criminal Division staff recommended defendant's admission

into the PTI program, noting that he explained his act of driving,

which he acknowledged was wrong, because "he was faced with an

unexpected transportation problem immediately prior to attending

a necessary medical appointment with his cancer specialist."                    The

Criminal Division staff report also repeated defendant's claim

that     ordinarily    his   paramour       would   drive     him   to     medical

appointments, but she was ill that day.                The report added that

defendant's    significant        multiple    health    problems     would      "be

burdensome    to    correctional     authorities     should    [defendant]        be

required to serve a term of incarceration."

       The prosecutor rejected defendant's application, relying upon

the public policy behind the adoption of 
N.J.S.A. 2C:40-26(b), as

well as defendant's "blatant disregard for the law."                       Despite

being encouraged to do so, defendant never documented the alleged

appointment.       Nor was he able to explain the presence of another

suspended driver in his vehicle.              Additionally, the prosecutor

reviewed the statutory factors he considered applicable:                  N.J.S.A.

2C:32-12(e)(4)-(7), (11), (14), and (17).            To summarize, the State

took the position that defendant's prior contacts with the system

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mandated his rejection from PTI because he seemed to disregard

societal norms and could not comply with the law.

      In his decision, Judge Porto also touched upon defendant's

failure to provide any proof of a medical appointment.                    The

omission brought into question the "genuineness of that particular

statement."     He observed that the presence of the passenger in

defendant's vehicle "militates against the theory that he was

faced with an unexpected transportation problem immediately prior

to attending a necessary medical appointment with a specialist."

Defendant "was a 54-year-old man with three prior DWIs, [and] an

active warrant out of . . . the Lower Township Municipal Court at

the time of the PTI application."        Thus, defendant had not clearly

and convincingly established that rejection from PTI was a patent

and   gross   abuse   of   discretion.      Rather,   "the   State     ha[d]

appropriately considered all th[e] individualistic criteria for

[defendant]."

      On appeal, defendant asserts only:

           THE PROSECUTOR'S REJECTION OF MR. HULME'S
           APPLICATION  TO  BE   ADMITTED  INTO  PTI
           CONSTITUTED A PATENT AND GROSS ABUSE OF
           DISCRETION.

      It is black-letter law that a defendant's admission into PTI

is usually contingent upon both the Criminal Division's favorable

recommendation and the prosecutor's consent.          State v. Nwobu, 139


                                   4                                 A-3857-16T
4 N.J. 236, 246 (1995) (citing R. 3:28(b)). A prosecutor is required

to     give   individualized     consideration   to    an   applicant's

"amenability    to   correction"   and   potential   "responsiveness    to

rehabilitation."     
N.J.S.A. 2C:43-12(b); Nwobu, 
139 N.J. at 247-48;

State v. Sutton, 
80 N.J. 110, 119 (1979).

       In this case, the prosecutor considered the non-exhaustive

statutory list of factors and only then reached his decision.          See

State v. Watkins, 
193 N.J. 507, 518-19 (2008).        A clear statement

of reasons was provided.       See 
N.J.S.A. 2C:43-12(c).

       The prosecutor's discussion of the public policy behind the

panoply of drunken driving laws did not make his analysis improper.

Rizzitello permits those legislative priorities to be taken into

consideration in the PTI decision.       Rizzitello, 
447 N.J. at 316.

       Therefore, the prosecutor's rejection in this case was not a

patent and gross abuse of discretion.        See Watkins, 
193 N.J. at
 520.     The prosecutor considered all relevant factors, did not

consider irrelevant or inappropriate factors, and did not make a

clear error of judgment in the rejection.        See State v. Roseman,


221 N.J. 611, 625 (2015) (citing State v. Bender, 
80 N.J. 84

(1979)).

       Affirmed.




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