Opinion
DOCKET NO. A-3266-16T3
12-06-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES FOTINATOS, Defendant-Appellant.
Cecilia M.E. Lindenfelser argued the cause for appellant. Kerry J. Salkin, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Salkin, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Simonelli and Haas. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-09-1156. Cecilia M.E. Lindenfelser argued the cause for appellant. Kerry J. Salkin, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Salkin, on the brief). PER CURIAM
Defendant James Fotinatos appeals from the August 11, 2016 Law Division order, which denied his appeal of the Hudson County Prosecutor's denial of his application for entry into the pre- trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12(f). We affirm.
Prior to March 2016, defendant was convicted four times of driving while intoxicated (DWI): on May 3, 2000, September 7, 2000, April 18, 2001, and May 2, 2007. Defendant was also convicted four times of driving when his license was suspended (DWS): on September 6, 2000, September 7, 2000, April 20, 2004, and November 24, 2009. On March 5, 2016, defendant was charged with several motor vehicle offenses and fourth-degree operating a motor vehicle during a period of license suspension for DWI, N.J.S.A. 2C:40-26(a) and (b). (Da2)
Defendant applied for admission into PTI. The criminal division manager determined he was an inappropriate PTI candidate and rejected his application. The prosecutor subsequently issued a written decision denying the application. As a reason for the denial, the prosecutor cited the extent to which the crime constitutes part of a continuing pattern of anti-social behavior based on defendant's driving record. N.J.S.A. 2C:43-12(e)(8).
Defendant filed a motion to compel admission into PTI. He argued, as he does in this appeal, that his prior DWI and DWS convictions were too temporally distant to the current offense to support the prosecutor's reliance on a continuing pattern of anti-social behavior to deny PTI admission. The motion judge disagreed and held there was no patent and gross abuse of discretion by the prosecutor's decision to deny PTI admission. This appeal followed.
We have held that
PTI is a diversionary program designed to "augment the options of prosecutors in disposing of criminal matters . . . [and] provide applicants 'with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.'"To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (alteration in original) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).]
Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003). A "[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his [or her] admission into PTI." State v. Watkins, 193 N.J. 507, 520 (2008) (citation 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. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff'd, 193 N.J. 507 (2008)); see also Negran, supra, 178 N.J. at 82. "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.'" Watkins, supra, 193 N.J. at 520 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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. Bender, 80 N.J. 84, 93 (1979).
Our scope of review of a PTI rejection is severely limited. Negran, supra, 178 N.J. at 82. We afford the prosecutor's decision great deference, Wallace, supra, 146 N.J. at 589, and will only overturn a prosecutor's decision to deny PTI upon finding a patent and gross abuse of discretion. State v. Kraft, 265 N.J. Super. 106, 112-13 (App. Div. 1993).
Applying these principles, we discern no reason to disturb the judge's ruling. The prosecutor rejected defendant's PTI admission for the charge of DWS because of his four prior convictions for the same reason, compounded by four DWI convictions. A prosecutor may consider an applicant's past driving record to establish a pattern of anti-social behavior where, such as here, the offenses are not too temporally distant. Negran, supra, 178 N.J. at 84-85. Clearly, defendant's repetitive and dangerous behavior of DWI and DWS and disregard for the law demonstrates a pattern of anti-social behavior. We conclude that the judge properly found there was no patent and gross abuse of discretion by the prosecutor's decision to deny PTI admission. We are satisfied that defendant was not appropriate for PTI admission. Defendant's arguments to the contrary do not warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION