Opinion
DOCKET NO. A-3449-10T4
03-28-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GERALD L. GARDNER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-03-0507.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This is an appeal from the denial of an application for admission into the pretrial intervention (PTI) program.
Defendant was indicted for assault by auto, in violation of N.J.S.A. 2C:12-1(c)(2), based on his operation of a motor vehicle while highly intoxicated, which resulted in catastrophic injuries to the occupants of another car with which defendant's car collided.
Defendant applied for admission into PTI. By letter dated May 26, 2010, the PTI Director for Ocean County denied defendant's application. This letter noted that while driving in a highly intoxicated condition, defendant had lost control of his car, crossed the center lane, started "fish tailing," and then crashed head-on into a car traveling in the opposite direction on Route 530, a two-lane highway. The occupants of the other car suffered catastrophic injuries, but survived. The letter also noted that a test of defendant's blood specimen resulted in a B.A.C. level of .179%. The police officers investigating the collision found six empty seven-ounce beer bottles in the passenger compartment of defendant's car and another six empty seven-ounce beer bottles in the trunk. Based on these facts, the PTI Director concluded:
. . . The present offense was committed recklessly and without regard for the lives of other human beings. . . . [A] motor vehicle easily becomes a lethal weapon in the hands of an incapacitated or otherwise irresponsible individual. The safety of our roadways and the immediate surrounding areas relies on the expectation that those whoThe PTI Director cited the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), the "facts of the case," N.J.S.A. 2C:43-12(e)(2), the "needs and interest of the victim[s] and society," N.J.S.A. 2C:43-12(e)(7), the "assaultive or violent" nature of the offense and its serious "injurious consequences" to the victims, N.J.S.A. 2C:43-12(e)(10), that the "value of supervisory treatment" of defendant was "outweighed by the public need for prosecution," N.J.S.A. 2C:43-12(e)(14), and that "the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling [defendant] into a supervisory treatment program," N.J.S.A. 2C:43-12(e)(17), as statutory criteria supporting the denial of defendant's application.
operate a motor vehicle do so responsibly. Accepting your application for the Pre-Trial Intervention Program would devalue the seriousness of your actions and send the wrong message to others who have committed similar offenses.
The Ocean County Prosecutor concurred with the PTI Director's determination that defendant's application should be denied. The assistant prosecutor assigned responsibility for these matters not only adopted the PTI Director's reasons for denial of defendant's application but also submitted a six-page letter summarizing the prosecutor's reasons for concurring with the PTI Director.
Defendant appealed this denial to the Law Division. The trial court remanded the matter to the prosecutor by a letter dated July 19, 2010, which stated:
This court finds that Mr. Gardner is a candidate who is amenable to rehabilitation through the PTI program. Although the court understands the State's position based on the objection of the victims to the defendant's admission into the PTI program, the seriousness of the injuries sustained, and Mr. Gardner's blood alcohol content, the court would like to inquire whether Mr. Gardner has a prior criminal record and prior motor vehicle violations.The assistant prosecutor responsible for handling PTI applications responded by a letter dated July 22, 2010, which stated:
To answer the questions raised in the Court's letter, the defendant does not have a prior criminal record and the defendant has no known prior motor vehicle violations.
The State has reviewed this matter further, however, for the reasons stated in the State's letter of July 16, 2010[,] the State continues to object to the defendant's entry into the Pre-Trial Intervention Program.
After hearing the arguments of counsel, the trial court affirmed the denial of defendant's application by a written opinion dated August 2, 2010, which concluded:
. . . Upon review, the court finds that the prosecutor did not commit an abuse of discretion, much less a patent and gross abuse of discretion, by rejecting the
defendant from the PTI program. The court finds the PTI Director's letter, which the prosecutor joined, is sufficiently detailed and properly based on all relevant and appropriate factors. In addition, the PTI Director['s] letter and the prosecutor considered defendant Gardner as an individual and made the decision to deny defendant Gardner admission to the PTI program. Therefore, defendant's PTI Appeal is hereby denied.
Defendant then entered into a plea agreement under which he agreed to plead guilty to the assault by auto charge, as well as a charge of driving while under the influence of alcohol, and the State agreed to recommend a probationary sentence. The trial court sentenced defendant in accordance with the plea agreement to a three-year term of probation, conditioned upon defendant serving ninety days of imprisonment in the Ocean County jail.
Defendant's brief indicates that he has served this period of imprisonment.
Our review of a prosecutor's denial of an application for admission into PTI is limited to determining whether defendant has "clearly and convincingly establish[ed] that the prosecutor's decision constitutes a patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305-06 (App. Div. 2007)). "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. (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)).
The trial court correctly concluded that defendant failed to demonstrate that the prosecutor's denial of his application for admission into PTI constituted a "patent and gross abuse of discretion." We also reject defendant's argument that the prosecutor failed to consider any of the factors he relied upon in support of his application for admission into PTI. The PTI Director's report, which the prosecutor adopted, specifically noted that defendant is sixty-three years old, that he had served in the United States Army from 1965 to 1968, and that he himself suffered catastrophic injuries in the collision that resulted in the assault by auto charge, including the amputation of his left arm, which had caused him to be unemployable. In addition, the prosecutor's July 22, 2010 report took note of defendant's lack of a criminal record or known prior motor vehicle violations. Therefore, the record establishes that the prosecutor considered all even arguably relevant factors in denying defendant's PTI application.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION