Opinion
DOCKET NO. A-5412-13T4
07-12-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL FRIEDRICH, Defendant-Appellant.
Cutolo Mandel, LLC, attorneys for appellant (Jeffrey S. Mandel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-06-00527. Cutolo Mandel, LLC, attorneys for appellant (Jeffrey S. Mandel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Michael Friedrich appeals from the Law Division order affirming the Union County Prosecutor's rejection of his application for admission into the pretrial intervention program (PTI). Defendant contends that the prosecutor's "policy" of rejecting entry into PTI for those charged with operating a motor vehicle while intoxicated creates an impermissible per se bar, amounting to a "patent and gross abuse of discretion." Having considered the arguments raised in light of the record and applicable legal standards, we affirm.
I.
We set forth the procedural history in detail because it explains the length of time it took for this matter to come before us. The underlying charges against defendant arise from an automobile accident occurring on June 5, 2010, at approximately 2:30 a.m., when defendant's car vaulted the center barrier on the Goethals Bridge, and crashed into two cars travelling in the opposite direction, injuring the occupants. That night, defendant was issued a summons for driving while intoxicated (DWI), N.J.S.A. 39:4-50.
On October 26, 2011, defendant was charged under Union County Indictment No. 11-10-010841 with two counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(1) and (2), based on his driving a vehicle recklessly while intoxicated, N.J.S.A. 39:4-50. He had previously applied for PTI, and in an August 1, 2011 letter, the prosecutor advised him that he was presumptively ineligible for PTI based on: 1) the fact that this was not a "victimless" offense; 2) this was a violent offense under Guideline 3(i) of Guidelines for Operation of Pretrial Intervention in New Jersey as promulgated by the New Jersey Supreme Court pursuant to Rule 3:28 (PTI Guideline); 3) defendant's denial that he was drunk at the time of the accident demonstrated a lack of responsiveness to correction and rehabilitation; and 4) diversion of defendant's case to PTI would be contrary to the interests of society. The prosecutor further maintained that defendant's out-of-state residence made it difficult to provide PTI supervision. Finding no compelling reasons to overcome the presumption of ineligibility, the prosecutor denied defendant's application into the PTI program.
With new counsel, defendant appealed the decision to the Law Division. A month later, defendant also made a request for PTI reconsideration to the prosecutor's office, supplying additional information in support. The prosecutor denied defendant's reconsideration request for the same reasons PTI admission was initially denied.
Following argument, the Law Division rendered an oral decision rejecting the State's application of PTI Guideline 3(i)(3) to this matter on the basis that the offense was not deliberately violent, but acknowledged that the State was within its discretion to deny defendant's application for public interest reasons. Consequently, the court remanded the matter back to the State for reconsideration of its reasons regarding defendant's PTI admission.
On remand, the prosecutor's office denied defendant's request for PTI admission a third time, having bolstered its reasoning concerning public interest. Defendant appealed once again to the Law Division. The trial court rendered an oral decision on June 8, 2012, ruling that the State's asserted public interest was a sufficient basis to deny defendant's PTI application. The court reasoned:
The Court: Your argument is that based on the nature of the offense and the prosecutor's office's position as to what's in the public interest that you believe, your office believes that based on the nature of this -- of this offense that there were real victims and based on the nature of the offense and your office's public policy decisions about what needs to be fully prosecuted for deterrence purposes, that's why PTI should be denied, that's your argument?
[Prosecutor]: Yes, Judge. Yes, it is.
The Court: Okay. And I accept that argument and I'm going to deny the petition.
. . . .
The Court: I believe that based on the severity of what happened here, that there were real victims, that there's a tremendous need to deter this kind of conduct. . . . I think there's a tremendous need for deterrence, and I don't believe that -- that your office is acting arbitrary in denying
this here for those reasons, so I'll enter an order today denying the . . . appeal.
On January 18, 2013, defendant moved to dismiss Indictment No. 11-10-010841, or in the alternative, preclude all evidence of the Alcotest, including any test results or expert opinion regarding such. On November 1, 2013, the Law Division entered an order denying defendant's motion to dismiss, and following a January 28, 2014 Rule 104 evidentiary hearing, granted defendant's motion to suppress results of the Alcotest and any expert opinion on defendant's level of intoxication.
In the interim, on June 7, 2013, the Union County grand jury issued superseding Indictment No. 13-06-00526 charging defendant with identical crimes, and defendant again applied for PTI. On August 28, 2013, the prosecutor denied defendant's application a fourth time in a notice of rejection nearly identical to the one sent following remand; defendant again appealed to the Law Division.
At argument, defendant maintained that the prosecutor's office had an impermissible, across-the-board denial of all PTI applications when the underlying charge involves DWI and injuries to third parties. The State responded that although the defendant's DWI offense with injuries was not technically a PTI Guideline 3(i) offense, the Guideline applied in the sense that there was a strong need for deterrence. The State argued the prosecutor's office would breach the public's trust should it grant PTI and decline to prosecute defendant because of the great need for deterrence of DWI offenses, especially where there were injured victims in this case. The court requested further briefing on these arguments, and reserved decision.
The court then issued its written decision denying the appeal. The court noted that it "[did] not find PTI Guideline 3(i) is applicable in this case[,]" and that state law has not defined DWI offenses as a breach of the public trust. Nonetheless, citing our decision in State v. Moraes-Pena, 386 N.J. Super. 569, 582 (App. Div.), cert. denied, 188 N.J. 492 (2006), the court determined that the prosecutor's rejection of defendant's PTI application was not a "patent and gross abuse of discretion." In Moraes-Pena, like the present situation, the prosecutor denied PTI for the defendant charged with third-degree assault by auto while intoxicated where a pedestrian was injured. 386 N.J. Super. at 582. We held such decision did not constitute a patent and gross abuse of discretion. Ibid.
Concerning the State's argument of the need for deterrence where the underlying offense involves DWI, the court acknowledged that it must recognize the "public policy advanced by the prosecutor." Moraes-Pena, supra, 386 N.J. Super. at 580 (citing State v. Kraft, 265 N.J. Super. 106, 115-16 (App. Div. 1993)). The court found that the prosecutor's "decision to reject defendant from admission into PTI was not based on a per se rule that whenever there is an accident and drunk driving is a factor, the State will automatically deny admission into PTI." Rather, the court held that, the prosecutor's denial "took into account the nature of the offense, the risk of danger to the public, the needs and interests of society, the injuries to the victims, and the individual circumstances of the defendant."
Consequently, a month later, defendant pled guilty to two disorderly persons offenses of assault by auto while driving while intoxicated, and was sentenced to a one-year term of probation, suspension of driving privileges for one year, and restitution. This appeal followed.
Before us, defendant raises the following arguments:
POINT I
A CHARGE OF THIRD DEGREE ASSAULT BY AUTO WITH INJURY AND WHILE INTOXICATED DOES NOT RENDER SOMEONE INELIGIBLE FOR ENTRY INTO THE PRETRIAL INTERVENTION PROGRAM.
A. THE LAW ON ENTRY INTO PTI.
B. THE LAW ON CHALLENGING REJECTION INTO PTI.
C. THE PER SE BAR TO ENTRY INTO PTI BASED UNDER THE FACTS OF THIS CASE CONSTITUTES A PATENT AND GROSS ABUSE OF DISCRETION.
POINT II
THE STATE'S RELIANCE ON A STALE FACT CONTRADICTED BY THE RECORD IS TANTAMOUNT TO FAILING TO CONSIDER ALL RELEVANT FACTORS.
POINT III
DRIVING WHILE INTOXICATED AND CAUSING INJURY IS NOT "A BREACH OF THE PUBLIC TRUST" AS THAT PHRASE IS USED IN SUBSECTION 4 OF PTI GUIDELINE 3(i).
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)). Accordingly, "a PTI determination requires that the prosecutor make an individualized assessment of the defendant considering his or her 'amenability to correction' and potential 'responsiveness to rehabilitation.'" Id. at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).
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). "'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.'" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)). 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[.]'" Roseman, supra, 221 N.J. at 621 (alteration in original) (quoting 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 and internal quotation 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 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 (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 well-reasoned written decision to sustain the prosecutor's denial of defendant's admission into PTI. We add only the following brief comments.
PTI Guideline 3 provides that certain types of offenses are generally rejected for admission into PTI. Defendant's contention that the trial court upheld the prosecutor's denial of PTI admission because he committed these offenses is incorrect. As noted, the court determined that Guideline 3(i) offenses did not apply to defendant's situation.
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." Pressler & Verniero, Current N.J. Court Rules, Guidelines for Operation of Pretrial Intervention in New Jersey, comment on R. 3:28 Guideline 3(i) (2016).
Following submission of the appeal, appellant brought to our attention our recently published case, State v. Coursey, ___ N.J. Super. ___ (App. Div. 2016) (slip op. at 7), in which the panel discussed Guideline 3(i)'s application to "low level offenses of non-school zone third or fourth-degree possession of marijuana with intent to distribute." As already noted, the judge determined that Guideline 3(i) did not apply. --------
Moreover, the court recognized that the State did not apply a per se rule automatically denying PTI whenever there is an accident and drunk driving is a factor. Rather, the court held that the prosecutor considered "the nature of the offense, the risk of danger to the public, the needs and interests of society, the injuries to the victims, and the individual circumstances of the defendant."
In turn, we reject defendant's contention that the prosecutor's decision should be reversed because it failed to consider all relevant factors, such as defendant's successful alcohol rehabilitation. While a defendant's rehabilitation is a factor to be considered regarding a PTI application, it is not at the expense of the nature of the offense. See Kraft, supra, 265 N.J. Super. at 115 (1993) ("[I]t is also well settled that a prosecutor's refusal to divert a particular defendant can, in appropriate circumstances, be based solely on the nature of the offense charged.")
In sum, we conclude the trial court 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