Opinion
DOCKET NO. A-5587-13T2
05-04-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ANA ALVAREZ, Defendant-Respondent.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-01-2014. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Peter J. Baker, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Respondent has not filed a brief. PER CURIAM
The State of New Jersey appeals from the Law Division's July 18, 2014 order granting defendant's application for entry into the Hudson County Pre-Trial Intervention (PTI) program, after her application had twice been rejected by the Hudson County Prosecutor's Office. We reverse and remand.
The facts are not in dispute. In February 2012, the New Jersey Motor Vehicle Commission (MVC) and the Attorney General's Office commenced Operation Facial Scrub, described as "a sweeping initiative consisting of an initial examination, or 'scrub,' of the MVC's 23 million-image database followed by a broad criminal investigation." N.J. MVC, Safety & Security Service Annual Report FY2013, at 9.
Available at http://www.state.nj.us/mvc/pdf/About/Annual_Report_2013.pdf.
The scrub utilized facial-recognition technology to search every image in the repository to determine if any individuals were maintaining more than one record. When possible duplicate identities were discovered, they were referred for further investigation. Ibid.
Defendant was discovered to have duplicate digital images resulting in the issuance of two separate identification documents to her. The first was a driver's license issued in the name Ana M. Alvarez. That license was suspended on July 14, 2009, when defendant was declared medically unqualified to drive as the result of an epilepsy diagnosis. Further investigation revealed that defendant had obtained an identification card for herself using her sister's name, date of birth, and social security number, which defendant intended to use to keep driving.
Defendant was indicted and charged with second-degree use of the personal identifying information of another, N.J.S.A. 2C:21-17.2(a), and third-degree tampering with public records, N.J.S.A. 2C:28-7(a)(1).
She applied for admission into the Hudson County PTI Program and was interviewed by a PTI coordinator, who recommended against enrollment. The prosecutor concurred with the decision rejecting defendant's application for PTI. Defendant appealed and, after hearing oral argument, the Law Division judge remanded the matter to the prosecutor for further consideration. By letter, the prosecutor informed the court that he continued to oppose defendant's admission to the PTI program.
In a written decision filed July 18, 2014, the Law Division judge incorporated her earlier decision of July 3, 2014 remanding the matter for reconsideration. In that decision, she determined that "the State did not articulate what factors they weighed and reviewed in reaching their decision to reject [d]efendant's application." She found that the State engaged in a "per se" rejection based on the fact that defendant was charged with a second-degree crime, and that such a categorical rejection was disfavored under State v. Caliguiri, 158 N.J. 28, 39 (1997). The judge criticized the State for failing to consider defendant's reasons for falsifying her identification and noted that she cared for two adopted children, one of whom suffered from cancer. The judge also faulted the State for considering inappropriate factors such as defendant's "disregard for those that may have been affected or harmed by her actions." Finally, the judge found that the State misconstrued the import of PTI Guideline 3(i) in Rule 3:28, observing that defendant's crime was "victimless."
In the July 18, 2014 decision, the judge found that the State failed to explain how all of the relevant PTI factors apply to this defendant, as she had directed in the earlier decision. As a result, she concluded that she was "left with no choice but to find that all relevant factors were not considered, and therefore, the State's determination to reject [d]efendant from PTI is unreasonable."
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, supra, 139 N.J. at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In determining eligibility, prosecutors must consider the factors in N.J.S.A. 2C:43-12(e) and Rule 3:28, and the accompanying Guidelines, which "elucidate the purposes, goals, and considerations relevant to PTI." Negran, supra, 178 N.J. at 80-81 (internal quotations marks omitted).
In rejecting the prosecutor's decision, the motion judge incorrectly based her decision upon her assessment of the PTI factors, rather than determining whether the prosecutor failed to consider all relevant factors. In her remand and final decisions, the Law Division judge appeared to place the burden on the State to establish that defendant should not be admitted into PTI. However, it is the defendant who bears the burden when seeking to overcome a prosecutorial denial of admission into PTI. State v. Watkins, 193 N.J. 507, 520 (2008). "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." Ibid. "The question 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, supra, 139 N.J. at 254.
"A prosecutor is required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." State v. Wallace, 146 N.J. 576, 584 (1996). A prosecutor is entitled to a presumption that all relevant factors have been considered absent a demonstration by the defendant to the contrary. Ibid. Given this presumption, a prosecutor's failure to mention each of the factors contained in N.J.S.A. 2C:43-12(e) in a statement of reasons is not an indication that they have not been considered.
It is clear that the prosecutor did not apply a per se rejection of defendant's PTI application based solely on the second-degree level of her crime. Once defendant was diagnosed with epilepsy, her physician was required by law to notify the MVC. N.J.S.A. 39:3-10.4. Epileptic disorders are specifically addressed by that statute:
Each physician treating any person 16 years of age or older for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of
motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments, shall, within 24 hours after his determination of such fact, report the same to the Director of the Division of Motor Vehicles.
[N.J.S.A. 39:3-10.4 (emphasis added)].
Once she became aware of her condition, defendant was also obligated to report it both on any initial application for licensure and on renewal applications. N.J.S.A. 39:3-10.5. After her driving privileges were suspended, she could not be relicensed until she demonstrated that she "has been free from recurrent convulsive seizures . . . for a period of six months with or without medication and that [she] is physically qualified to operate a motor vehicle." N.J.A.C. 13:19-5.1. In the absence of evidence that her epilepsy was medically controlled, defendant's operation of an automobile created a material risk to herself and to members of the public. See Div. of Motor Vehicles v. Granziel, 236 N.J. Super. 191, 200-01 (App. Div. 1989) (epilepsy required suspension of driving privileges under N.J.S.A. 39:3-10).
Defendant's counsel informed the court during oral argument on July 2, 2014, that defendant's doctor wrote to the MVC indicating that defendant had not had an epilepsy attack in six months and subsequently, her driving privileges were restored. There is no indication that any such medical evidence was provided to the PTI coordinator. Absent medical proof, the prosecutor was not required to consider this claim.
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Defendant admitted that she procured the MVC identification card using her sister's birth certificate in order to keep driving. The PTI coordinator correctly noted that "defendant's actions . . . [were] a direct display of disregard for those that may have been affected or harmed by her actions[.]"
We discern no abuse of discretion in the prosecutor's denial of defendant's application, much less one that is "patent and gross." Watkins, supra, 193 N.J. at 520. Our review of the record convinces us that the prosecutor considered, weighed, and balanced all the requisite factors, including those personal to defendant as well as the facts and circumstances of the offenses.
The July 18, 2014 order granting defendant's application into the PTI program is reversed and the State's determination rejecting defendant from PTI is restored.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION