STATE OF NEW JERSEY v. WENDY L. LADOUCEUR

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NOT FOR PUBLICATION WITHOUT THE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-0184-19T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WENDY L. LADOUCEUR,

     Defendant-Appellant.
_____________________________

                    Submitted January 12, 2021 – Decided January 26, 2021

                    Before Judges Haas and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 18-11-
                    1526.

                    Kahn, Gigliotti & Lehrfeld, LLC, attorneys for
                    appellant (Ross M. Gigliotti, on the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Jennifer B. Paszkiewicz,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Wendy L. Ladouceur appeals from the Law Division's April

11, 2019 order, which denied her application for entry into the pre-trial

intervention (PTI) program. We affirm.

      At approximately 6:45 p.m. on January 18, 2018, defendant drove her car

head-on into another vehicle. A witness who was driving behind defendant at

the time of the crash told the police that defendant's car was all over the road

and was weaving in and out of the oncoming traffic.            The witness saw

defendant's car cross the double yellow line and strike the victims' vehicle. The

driver of the other car suffered a broken finger on her left hand and the driver's

ten-year-old son sustained a head wound that required thirteen stitches to close.

      At the scene, defendant appeared disoriented and confused. Initially,

defendant told the police she did not remember what happened. However, she

soon admitted that she was drunk and the police detected the odor of alcoholic

beverages on her breath. The police drove her to the hospital where a blood test

revealed that defendant's blood alcohol content was .286%.

      A Burlington County grand jury later returned an indictment charging

defendant with two counts of fourth-degree assault by auto,  N.J.S.A. 2C:12-

1(c)(2).   The police also charged defendant with driving while intoxicated

(DWI),  N.J.S.A. 39:4-50.


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      Defendant applied for admission to the PTI program. The PTI Director

for Criminal Case Management denied the application in a January 31, 2019

letter. The PTI Director explained that after considering "the totality of [the]

circumstances, including the injuries to both [of the victims]," the driver's

"strong objection" to the application, defendant's cooperation in the process, her

full-time employment, and her remorse, the Director could not provide a positive

recommendation on the application.

      Defendant filed a motion with the Law Division to appeal her rejection

from the PTI Program. Pursuant to State v. Nwobu,  139 N.J. 236, 246 (1995),

the county prosecutor declined to accept defendant's application into the PTI

program, relying upon the reasons for rejection articulated by the PTI Director.

Following oral argument, Judge Terrence R. Cook rendered a comprehensive

oral decision confirming the denial of defendant's application.

      Thereafter, defendant pled guilty to one count of assault by auto and to

DWI.1 Pursuant to her negotiated plea, Judge Cook sentenced defendant to two

years of probation on the assault by auto charge, subject to certain conditions

listed in the Judgment of Conviction. On the DWI conviction, the judge imposed



1
   The second count of assault by auto was dismissed pursuant to the plea
agreement.
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a ninety-day driver's license suspension and appropriate monetary penalties.

This appeal followed.

     On appeal, defendant raises the following contentions:

           POINT I: THE LOWER COURT ABUSED ITS
           DISCRETION BY AFFIRMING THE [PTI]
           DIRECTOR'S REJECTION OF DEFENDANT'S
           TIMELY APPLICATION TO THE PTI PROGRAM,
           AND FAILING TO PROPERLY APPLY [N.J.S.A.
           2C:43-12(a)(1)].

                 I(a): [The] [l]ower court erred because it did not
                 correctly and properly apply [ N.J.S.A. 2C:43-
                 12(a)(1)].

                 I(b): The PTI Director's rejection of defendant's
                 PTI application and attached mischaracterization
                 of defendant's criminal conduct prejudiced
                 defendant before any dispositive proceeding.
                 (Not raised below).

           POINT II: THE REJECTION OF DEFENDANT'S
           TIMELY APPLICATION TO THE PTI PROGRAM,
           WITH [THE] LOWER COURT'S APPROVAL,
           CONSTITUTES         AN  INFRINGEMENT    OF
           DEFENDANT'S EIGHTH AMENDMENT RIGHTS
           BECAUSE          THE   REJECTION    ITSELF
           CONSTITUTES AN EXTRAJUDICIAL PUNITIVE
           MEASURE IN NATURE, AND IS NOT
           PROPORTIONAL TO THE OFFENSE COMMITTED.
           (Not raised below).

     We have considered these arguments in light of the record and applicable

legal principles and conclude they are without sufficient merit to warrant


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discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons expressed by Judge Cook in his well-reasoned oral opinion. We add

the following brief comments.

      Our scope of review of a prosecutor's decision to deny admission to PTI

is "severely limited." State v. Negran,  178 N.J. 73, 82 (2003) (citations 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. Watkins,  193 N.J. 507, 520 (2008) (citation

omitted). "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.'" Ibid. (citation

omitted).

      Applying these principles, we discern no patent or gross abuse of

discretion by the PTI Director or the prosecutor under the circumstances of this

case. We are satisfied that Judge Cook properly addressed the relevant factors

and considered the appropriate standard in denying defendant's application to be

admitted to PTI.

      Affirmed.




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