Opinion
DOCKET NO. A-3668-13T4
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICARDO A. VELIZ ESCOBAR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Lorraine M. Sult, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sumners and Tassini. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-01-0132. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Lorraine M. Sult, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by, Sumners, Jr., J.A.D.
Defendant Ricardo Veliz Escobar appeals from the trial court's order affirming the Middlesex County Prosecutor's rejection of his application for admission to the pretrial intervention program (PTI). Defendant contends that the State applied the wrong legal standard in denying his PTI application and engaged in a "gross abuse of discretion" by failing to individually evaluate his application. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.
The underlying charges against defendant stem from when his vehicle was stopped on September 2, 2012, at 3:25 a.m., near a driving while under the influence (DWI) police check-point in Woodbridge. The police officers observed a vehicle approach the DWI checkpoint and turn left into a parking lot despite an illuminated sign stating "DWI checkpoint, proceed straight, no turns." The vehicle stopped and defendant exited from the driver's seat, walked around the vehicle, and sat in the front passenger's seat which had been occupied by his wife, who climbed over the center console to position herself in the driver's seat.
When the officers approached the vehicle, they noticed a strong odor of alcohol emanating from the vehicle and asked the defendant for his driver's license. Defendant denied that he had been driving, despite the officers telling him that they had observed him switch seats with his wife. After failing a field sobriety test and becoming argumentative with the police, defendant was arrested and transported to police headquarters.
At headquarters, the police administered a breathalyzer test which revealed defendant's blood alcohol concentration (BAC) of 0.08 percent. It was also discovered that defendant's license was suspended as a result of a third DWI conviction in 2004. Consequently, defendant was issued summons for driving with a suspended driver's license, N.J.S.A. 39:3-40, reckless driving, N.J.S.A. 39:4-96, and driving while intoxicated, N.J.S.A. 39:4-50.
Following his January 2013 indictment for fourth-degree operating a motor vehicle while license suspended, N.J.S.A. 2C:40-26(b), defendant applied for PTI. On March 13, 2013, the PTI program director denied defendant's admission into PTI stating, "[defendant] has a history of DWI offenses and may need closer monitoring than what PTI can offer." Two months later, on May 20, the State, in agreement with the program director's decision, also rejected defendant's admission into PTI. In his denial, Assistant Prosecutor Neil J. Casey III, considered the following:
On the date in question, the defendant's driving privileges were suspended. They were suspended on [October 25, 2004] for 10 years following his third [] conviction for DWI. His driver's abstract runs for 8 pages and has multiple
violations for driving while suspended, as well as other moving violations.
The State has considered the report of Gilbert Snowden provided by the defendant. In essence, it says the correct Alcotest results should be .07%. Even if the defendant was not operating his car in violation of N.J.S.A. 39:4-50, he was still operating it after his [third] DWI conviction.
The State has considered the defendant's lack of a criminal record. However, his driving record demonstrates a continuing pattern of disrespect for the law. The purpose of PTI is not to give everyone a free crime first time out of the box. The defendant has not demonstrated any "compelling reasons" to warrant the State to recommend his admission into PTI.
In response, defendant filed a motion to compel admission into PTI over the prosecutor's objection. Following argument on June 28, 2013, Judge Douglas K. Wolfson denied defendant's motion, stating that:
This is not a situation where [defendant] was compelled even against his will, or he felt duressed [sic] I have to do this. This is a guy that was out on the town arguably, had a couple of drinks, at least; ended up with a .07, at best . . . . He's had three convictions for DUI. This is a guy who shouldn't be on the road.
And, to me, he should not be entitled to the special protections under the PTI statute. . . . I certainly can't believe that the [p]rosecutor[] here acted with [gross] abuse of discretion.
Thereafter, defendant pled guilty, automatically preserving his right to appeal the judge's decision denying his motion to be admitted into PTI. R. 3:28(g). This appeal followed.
On appeal, defendant argues that the prosecutor acted arbitrarily and with a clear error in judgment when he rejected defendant's application for PTI under the "compelling reasons" standard, even though the defendant was not presumptively ineligible for PTI, and only considered the defendant's charge and prior motor vehicle record while failing to consider any of the other factors that favored entrance into PTI. The prosecutor's rejection, he further contends, undermines the goals underlying PTI's goals of rehabilitation. Moreover, defendant asserts that the State wrongfully pointed to defendant's past driving record as an aggravating factor when any defendant charged with N.J.S.A. 2C:40-26(b), by definition, must have prior sanctions for driving with a suspended license yet continue to drive. We do not agree with any of defendant's contentions.
The scope of our review of a PTI rejection is "severely limited." State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function." State v. Wallace, 146 N.J. 576, 582 (1996) (citation omitted). "'Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options.'" State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors "broad discretion" in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015). Thus, on appellate review, PTI decisions are given "enhanced deference." State v. Brooks, 175 N.J. 215, 225 (2002).
The PTI statute requires prosecutors to consider a non-exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria "include 'the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance[.]'" State v. Roseman, 221 N.J. 611, 621 (2015) (alteration in original) (quoting State v. Watkins, 193 N.J. 507, 520 (1996)). In rendering his or her decision, the prosecutor must "make an individualized assessment of the defendant" and consider whether the defendant is amenable to rehabilitation. Id. at 621-22 (citing Watkins, supra, 193 N.J. at 520).
"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.'" Watkins, supra, 193 N.J. at 520 (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). 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 (2014), certif. denied, 222 N.J. 18 (2015) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).
Applying these principles, we see no cause to disturb the trial judge's decision to sustain the prosecutor's denial of defendant's admission into PTI. In doing so, we acknowledge that the prosecutor's statement that defendant "has not demonstrated any 'compelling reasons' to warrant . . . his admission into PTI," suggests that defendant was required to overcome a presumption that he was not entitled to be admitted due to the nature of the charge. This is not an appropriate standard to apply in this case.
Guidelines making PTI decisions provide that certain types of offenses are generally rejected for admission into PTI, and also that persons charged with first- or second-degree crimes "should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor." Pretrial Intervention Guidelines, supra, at 2294. However, there is nothing in the record indicating that the State or the trial judge applied this guideline in considering defendant's PTI admission.
Such offenses are "(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3 at 1193 (2016). --------
The judge recognized that the State rejected defendant's PTI admission for the charge of driving while suspended because of his four prior convictions for the same offense, compounded by three DWI convictions. Clearly, defendant's repetitive behavior of driving while suspended does not evidence an amenability to rehabilitation "through his participation in supervisory treatment" and demonstrates a "pattern of anti-social behavior[.]" N.J.S.A. 2C:43-12(e)(6) and -12(e)(8). Defendant's lack of convictions for criminal offenses as well as the low BAC, even conceding it may have been below the legal limit based upon defendant's expert report, were considered but were non-persuasive in his PTI application. We conclude the judge properly found that there was no patent and gross abuse of discretion by the prosecutor's decision to deny PTI admission for defendant's transgression.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION