Opinion
DOCKET NO. A-4017-14T4
01-23-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT A. WOOLLERTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fuentes and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-05-1536. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/Acting Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a judgment of conviction entered on September 11, 2014 for driving during a period of license suspension for a third driving while intoxicated (DWI) violation, a fourth-degree offense, N.J.S.A. 2C:40-26(b). In particular, defendant challenges the denial of his application for admission into the Pretrial Intervention (PTI) program. We have considered defendant's contentions in light of the record and applicable legal principles and find them unpersuasive.
N.J.S.A. 39:4-50.
I.
We discern the following facts from the record. On January 17, 2013, an Atlantic City police officer observed defendant hit multiple unoccupied parked cars while defendant was operating his vehicle. As defendant left the scene, he hit another parked car and drove through two red lights. The officer notified police dispatch and followed defendant until he was stopped by a patrol vehicle. Defendant exited his vehicle and told the patrol officers conducting the motor vehicle stop to lock him up because he was "a [three] time offender." The officers immediately smelled the odor of alcoholic beverages emanating from defendant's breath, noted that defendant's eyes were glassy and watery, and escorted defendant to the side of the street because he began to sway.
Defendant was arrested and transported to the police station where the administration of the Alcotest revealed a blood alcohol content (BAC) of 0.22%, nearly three times the presumptive level of intoxication under N.J.S.A. 39:4-50(a)(1)(i). As a result, defendant was issued motor vehicle summonses for driving while intoxicated, N.J.S.A. 39:4-50; driving while intoxicated in a school zone, N.J.S.A. 34:4-50(g); careless driving, N.J.S.A. 39:4-97; failure to maintain lane, N.J.S.A. 39:4-88; failure to observe a traffic signal, N.J.S.A. 39:4-81; failure to exhibit driver's license, N.J.S.A. 39:3-29; failure to report an accident, N.J.S.A. 39:4-130; and leaving the scene of an accident, N.J.S.A. 39:4-129. A review of defendant's driver abstract maintained by the Motor Vehicle Commission revealed that defendant's license was suspended for a third DWI conviction. Accordingly, defendant was indicted in a single-count indictment for fourth-degree operating a motor vehicle during the period of license suspension for a second or subsequent conviction for driving while intoxicated, N.J.S.A. 2C:40-26(b).
Thereafter, defendant applied for PTI but was rejected by the PTI Director and the prosecutor based upon the following factors set forth in N.J.S.A. 2C:43-12(e): the nature of the offense, N.J.S.A. 2C:43-12(e)(1) (factor one); the facts of the case, N.J.S.A. 2C:43-12(e)(2) (factor two); the needs and interests of the victim and society, N.J.S.A. 2C:43-12(e)(7) (factor seven); the extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior, N.J.S.A. 2C:43-12(e)(8) (factor eight); whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12(e)(14) (factor fourteen); and whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17) (factor seventeen).
After considering defendant's long-term employment as a teacher, his admitted alcohol addiction, his participation in treatment, his affliction with cancer, and numerous letters of commendation, the Director determined that defendant "failed to provide compelling reasons justifying enrollment and establishing that a decision against enrollment would be arbitrary and unreasonable." In evaluating the applicable factors, the prosecutor explained:
The Legislature has determined to impose a mandatory sentence of 180 days incarceration with no parole eligibility for those in violation of [N.J.S.A.] 2C:40-26. The decision by the Legislature . . . is clearly intended to deter such conduct. The strong need to deter would be undermined if one charged with this type of conduct were permitted to escape criminal prosecution
through a diversionary program. The defendant's driver's abstract reveals this is his [fifth] arrest for [d]riving under the influence. Despite receiving multiple violations and sanctions, the defendant still continues to drive while under the influence. The State is aware that traffic violations are not criminal convictions. However, pursuant to criteria [eight] . . . the traffic violations suggest that the present offense represents a pattern of anti-social behavior that is not likely to change through diversion into a relatively sanctionless program. Further militating against diversion is the fact that this behavior occurred in a designated school zone and the defendant fled the scene after hitting multiple cars. It is the State's position that there is a great need to deter this defendant from future misconduct by formal criminal prosecution with closer supervision and stronger sanctions. The State recognizes that the defendant is employed, is in treatment for his addiction and has submitted many letter[s] of support on his behalf. The State is also aware that this matter would result in the defendant's first indictable conviction. The State has considered these factors but they do not outweigh the strong need to deter this defendant.
Following his rejection, defendant moved to compel admission. In denying the motion, the trial court concluded that defendant failed to show a clear error in judgment or a patent and gross abuse of discretion by the prosecutor. The trial court rejected defendant's argument that the prosecutor failed to provide compelling reasons to justify the rejection other than a blanket prohibition against enrollment for N.J.S.A. 2C:40-26 violators. Likewise, the court rejected defendant's contention that factors one, two, seven and fourteen were improperly considered and determined that the prosecutor properly considered "everything."
The court reasoned that although no one was injured by defendant's conduct, there were egregious facts that were appropriately considered by the prosecutor, specifically, that "it's your fifth DWI, the reading was .22, you hit cars, [damaged] property, and then tried to leave the scene, and did leave the scene of where the first impact took place." The court noted that "[t]he legislature, in their wisdom, passed this law, and they decided that if you're suspended for a second DUI, and driving while suspended, that you should be subject to a fourth degree offense, and subject to a mandatory 180 days in jail." The court found that defendant's conduct showed a "total disregard for human life, and for the laws of the State of New Jersey, even though they're motor vehicle laws."
The court determined that "the needs of society" and the "potential to cause significant harm" were "controlling" and justified prosecution as a deterrent. The court acknowledged that defendant was an alcoholic and "[i]t's nice that you're getting treatment now, but that should have been done four DUIs ago. Not after the fifth one." The court emphasized that
under the egregious facts of this case, there's no way I can come anywhere close . . . to saying that the prosecutor abused their discretion, or that there was a clear error of judgment, or that they considered facts that they shouldn't have considered, or they didn't give you [the] benefit of the positive facts that applied to you.
After being denied PTI, defendant pled guilty to the sole count in the indictment and the related DWI charge. In accordance with the terms of a plea agreement, he was sentenced to serve 180 days in jail on the indictable offense, and a concurrent 180-day jail sentence on the DWI charge. On the DWI charge, his drivers' license was suspended for ten years and all mandatory fines, fees and penalties were assessed. On appeal, defendant submits a single point for our consideration:
Defendant received ninety-days credit on the DWI charge only for time spent in an alcohol inpatient rehabilitation program pursuant to N.J.S.A. 39:4-50(a)(3). --------
THE PROSECUTOR'S REJECTION OF [DEFENDANT'S] PTI APPLICATION CONSTITUTES A PATENT AND GROSS ABUSE OF DISCRETION, THUS WARRANTING REVERSAL.
Defendant argues that the State's rejection "stems from a misapplication of the PTI factors, accordance of undue weight to the nature of the offense, and failure to adequately consider [defendant's] amenability to rehabilitation." Defendant asserts that because the prosecutor's rejection "constituted a patent and gross abuse of discretion," the court "committed reversible error in denying [defendant's] motion" to compel admission.
II.
"PTI is a 'diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015) (quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). The goal of PTI is to allow defendants in appropriate situations to avoid the potential stigma of a conviction and the State to avoid "the full criminal justice mechanism of a trial." State v. Bell, 217 N.J. 336, 347-48 (2014). "[E]ligibility for PTI is broad enough to include all defendants who demonstrate sufficient effort to effect necessary behavioral change and show that future criminal behavior will not occur." Roseman, supra, 221 N.J. at 622 (citation omitted).
Deciding whether to permit a defendant to divert to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Dalglish, 86 N.J. 503, 513 (1981)), for which a prosecutor is given "broad discretion[.]" K.S., supra, 220 N.J. at 199 (citing Wallace, supra, 146 N.J. at 582). It involves the consideration of a non-exhaustive list of seventeen statutory factors, enumerated in N.J.S.A. 2C:43-12(e), in order to "make an individualized assessment of the defendant considering his or her amenability to correction and potential responsiveness to rehabilitation." Roseman, supra, 221 N.J. at 621-22 (internal quotation marks omitted) (citing State v. Watkins, 193 N.J. 507, 520 (2008); N.J.S.A. 2C:43-12(b)). "These factors include 'the details of the case, defendant's motive, age, past criminal record, standing in the community, and employment performance[.]'" Roseman, supra, 221 N.J. at 621 (alteration in original) (quoting Watkins, supra, 193 N.J. at 520). The Supreme Court has promulgated Guidelines accompanying Rule 3:28 that work in harmony with the seventeen individual factors listed in N.J.S.A. 2C:43-12(e).
The scope of our review of a PTI rejection is "severely limited" and designed to address "only the most egregious examples of injustice and unfairness." State v. Negran, 178 N.J. 73, 82 (2003) (citations and internal quotations 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," meaning that the decision "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Watkins, supra, 193 N.J. at 520 (citation and internal quotation omitted). An abuse of discretion is manifested where it can be proven "that the [PTI] denial '(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. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014), certif. denied, 222 N.J. 18 (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 Pretrial Intervention." Roseman, supra, 221 N.J. at 625 (quoting Bender, supra, 80 N.J. at 93).
Applying these principles, we discern no abuse of discretion in the prosecutor's denial of defendant's application, let alone one that is patent and gross. Accordingly, there is no basis to disturb the trial court's decision sustaining the prosecutor's denial. Defendant argues that "the prosecutor accorded great weight to the sentencing scheme set forth under N.J.S.A. 2C:40-26" and "absent proof that the Legislature intended to create a presumption against PTI admission for individuals charged with this offense, the prosecutor simply cannot engraft such [a] presumption into the PTI Guidelines or the statute itself." As we made clear in State v. Rizzitello, 447 N.J. Super. 301 (App. Div. 2016), N.J.S.A. 2C:40-26 does not carry a presumption against admission into PTI under either N.J.S.A. 2C:43-12(b) or Guideline 3(i). We disagree with defendant's contention that the prosecutor "engrafted" such a presumption.
We did, however, hold that the "public policy considerations" underlying the "Legislature's decision to criminalize the act of driving while one's license is suspended for a second or subsequent DWI conviction" is an appropriate consideration by the prosecutor in rejecting a PTI application. Rizzitello, supra, 447 N.J. Super. at 315. We recognized that N.J.S.A. 2C:40-26 is the latest addition to New Jersey's drunk-driving statutes enacted to deter and "curb the senseless havoc and destruction caused by intoxicated drivers." Ibid. (quoting State v. Tischio, 107 N.J. 504, 512 (1987)). The legislative history of N.J.S.A. 2C:40-26 indicates that the penalty for such conduct was increased from a potential jail term of between ten and ninety days to a mandatory term of 180 days in response to "reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior [driving while intoxicated] violations, who nevertheless were driving with a suspended license." State v. Carrigan, 428 N.J. Super. 609, 614 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013). These policy considerations were therefore properly considered by the prosecutor.
Defendant argues further that aside from its undue reliance on N.J.S.A. 2C:40-26's sentencing scheme, the prosecutor ascribed excessive weight to the nature of the offense and the facts of the case. In particular, relying on State v. K.S., 220 N.J. 190 (2015), defendant takes issue with the State's emphasis on the fact that this was defendant's fifth DWI arrest since defendant was found not guilty of one of those prior DWI charges. We agree that consideration of defendant's arrests that did not result in convictions would no longer be permissible in the absence of support by "undisputed facts of record or facts found at a hearing." Id. at 199. However, that was not the state of the law in 2013 under State v. Brooks, 175 N.J. 215 (2002), overruled in part by K.S., supra, 220 N.J. at 199, when this PTI decision was made. Nonetheless, we do not consider the prosecutor's reliance on this assertion to be such an abuse of discretion as to require reversal, particularly since defendant's three prior DWI convictions are undisputed.
Defendant also contends that the prosecutor failed to properly consider his amenability to rehabilitation as reflected by his dedication to his profession as a biology teacher, his strong work ethic, and his strong desire to turn his life around. According to defendant, by denying his application, "the PTI Director, the prosecutor, and the trial court alike have subjected [defendant] to the stigmatization of a criminal conviction, and the negative employment consequences flowing therefrom." We disagree. The reasons for defendant's denial were valid and premised on consideration of the relevant factors, the majority of which weighed against admission. "It is not sufficient to reverse that [the court] find[s] a decision to be harsh." State v. DeMarco, 107 N.J. 562, 567 (1987).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION