RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0536-15T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, September 20, 2016 v. APPELLATE DIVISION STEVEN RIZZITELLO,
Defendant-Respondent. _________________________________
Submitted June 8, 2016 – Decided September 20, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-01-00064.
Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
Respondent has not filed a brief.
The opinion of the court was delivered by
FUENTES, P.J.A.D.
An Ocean County Grand Jury indicted defendant Steven
Rizzitello on a single count of fourth-degree operating a motor
vehicle during the period of license suspension for a second or subsequent conviction for driving while intoxicated (DWI),1 in
violation of N.J.S.A. 2C:40-26(b). The State appeals from the
order of the Law Division, Criminal Part, which admitted
defendant into the Pretrial Intervention (PTI) Program and
overrode the Ocean County Prosecutor's Office's (OCPO)
rejection.
The prosecutor states that his decision to reject
defendant's PTI application was based on: (1) defendant's
history of defying court-ordered suspensions of his driving
privileges for driving while under the influence of alcohol; and
(2) the presumption against admission into PTI that applies to
those charged under N.J.S.A. 2C:40-26(b). Consequently, the
prosecutor argues the trial judge erred when she concluded that
the OCPO's rejection of defendant's PTI application amounted to
a patent and gross abuse of discretion.
After reviewing the record presented to the PTI judge and
keeping in mind the enhanced deferential standard governing
judicial review of prosecutorial decisions affecting admission
into this diversionary program, we reverse. We conclude the
trial judge erred when she overrode the State's rejection of
defendant's PTI application because the prosecutor’s decision
did not constitute "a patent and gross abuse of discretion" as
1 N.J.S.A. 39:4-50.
2 A-0536-15T2 defined by the Supreme Court in State v. Roseman, 221 N.J. 611,
625 (2015) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).
However, we reject the OCPO's characterization of the fourth
degree offense under N.J.S.A. 2C:40-26(b) as falling within the
"crimes that are, by their very nature, serious or heinous and
with respect to which the benefits of diversion are
presumptively unavailable." Roseman, supra, 221 N.J. at 622
(quoting State v. Watkins, 193 N.J. 507, 523 (2008)). See also
N.J.S.A. 2C:43-12(b); Pressler & Verniero, Current N.J. Court
Rules, Guideline 3(i) on R. 3:28 at 1193 (2016).
I
On July 5, 2013, Brick Township Police Officer Steven
Gerling issued defendant a summons under N.J.S.A. 39:3-40 for
driving while his driver's license was suspended. On September
29, 2013, Officer Gerling reviewed defendant's driver abstract
maintained by the Motor Vehicle Commission (MVC) and discovered
defendant's driver's license was suspended based on his third
DWI2 conviction. What transpired next is not clear. It appears
Officer Gerling contacted defendant to inform him of this
discovery, and defendant voluntarily reported to the Brick
Township Police Station. Defendant was then formally arrested
and charged with a fourth degree crime under N.J.S.A. 2C:40-
2 N.J.S.A. 39:4-50(a)(3).
3 A-0536-15T2 26(b). He was subsequently released from custody. The record
does not disclose whether defendant's release was conditioned
upon the payment of bail or any other court-ordered
restrictions.
An "[a]pplication for pretrial intervention shall be made
at the earliest possible opportunity, including before
indictment, but in any event no later than twenty-eight days
after indictment." R. 3:28(h). Defendant was indicted on
January 14, 2014. We infer defendant filed his PTI application
outside this regulatory timeframe because the record contains a
consent order, entered by the court on March 10, 2014,
permitting defendant to file the PTI application no later than
seven days from the date of the order. As provided for in Rule
3:28(h), the Criminal Division Manager assigned a probation
officer to interview defendant and gather information to
determine whether to recommend his admission into the PTI
program. We derive the following facts from the PTI Director's
letter denying defendant's application for admission into the
program.
Defendant was sixty-one years old at the time he applied
for admission into PTI in March 2014. He had been married to
his current wife for eighteen years and had two adult children
from two prior marriages. He graduated high school in 1971; for
4 A-0536-15T2 the past thirty-four years defendant has been employed fulltime
as a butcher for a supermarket chain. Defendant is an
alcoholic. He began drinking on a daily basis when he was
seventeen years old. Due to his multiple DWI convictions,
defendant has been ordered by municipal courts to participate in
the various alcohol addiction programs provided under N.J.S.A.
39:4-50(b) and (f).
According to his MVC driver abstract, defendant's first DWI
conviction occurred on November 25, 1987. By that time, he had
also been convicted three times for speeding, had an outstanding
warrant for failure to appear, and his driver's license had been
suspended or revoked under N.J.S.A. 39:3-40. On December 13,
1987, less than a month after his first DWI conviction,
defendant was again charged with driving while his license was
suspended or revoked, in violation of N.J.S.A. 39:3-40.
Defendant was convicted of his second DWI offense on June 18,
1996. This second conviction resulted in a mandatory suspension
of his driving privileges for two years. His driving privileges
were restored on August 6, 1998.
On May 29, 2013, defendant was convicted of his third DWI.3
On July 5, 2013, defendant was stopped by Officer Gerling for
3 A person convicted of DWI for a third or subsequent time
(continued)
5 A-0536-15T2 driving while his license was suspended. The appellate record
does not reveal the circumstances that led defendant to drive
his car that day. However, in its brief to the trial judge the
OCPO claimed defendant's decision to drive less than two months
after his third DWI conviction "show[s] defendant consciously
disregarded the law stating that he was not allowed to drive.
There was no compelling reason for him to be driving on that
date." The trial judge agreed with the State in this respect.
Without describing any particular facts, the judge noted: "As I
read the facts . . . the defendant doesn't even suggest that
there was any compelling reason."
By letter dated March 26, 2014, the vicinage's PTI Director
recommended against admitting defendant into PTI. After
(continued) shall be subject to a fine of $ 1,000, and shall be sentenced to imprisonment for a term of not less than 180 days in a county jail or workhouse, except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center and shall thereafter forfeit his right to operate a motor vehicle over the highways of this State for 10 years. For a third or subsequent violation, a person also shall be required to install an ignition interlock device under the provisions of P.L.1999, c.417 (C.39:4-50.16 et al.).
[N.J.S.A. 39:4-50(a)(3).]
6 A-0536-15T2 referring to the statutory factors in N.J.S.A. 2C:43-12(e), the
PTI Director noted that the sanctions imposed by the court under
Title 39 had thus failed to deter defendant from continuing to
drive while his license was suspended. N.J.S.A. 2C:40-26(b)
"was put into effect to deter people from driving with a
suspended license." The PTI Director also emphasized that "[a]
motor vehicle can easily become a lethal weapon in the hands of
those not responsible enough to drive safely." In light of
these concerns, the PTI Director concluded that accepting
defendant's application "would devalue the seriousness of your
actions and send the wrong message to others who have committed
similar offenses."
Under the review process established by our Supreme Court,
"[t]he prosecutor shall complete a review of the application and
inform the court and defendant within fourteen days of the
receipt of the criminal division manager's recommendation." R.
3:28(h) (emphasis added). Based on the record provided to us in
this appeal, we infer the OCPO did not conduct the review
mandated by rule. Based on a letter-brief dated March 11, 2015
the OCPO sent to the trial judge, we infer defendant appealed
the PTI Director's denial directly to the trial court.
The matter came before the trial judge on April 15, 2015.
The prosecutor argued, as she does here, that the fourth degree
7 A-0536-15T2 offense under N.J.S.A. 2C:40-26(b) should carry a presumption
against admission into PTI pursuant to Guideline 3(i). After a
lengthy, on-the-record discussion with counsel, the judge
directed the prosecutor to reexamine her position against
admitting defendant into PTI after considering and applying the
statutory factors in N.J.S.A. 2C:43-12(e).
The prosecutor submitted a letter-brief dated July 21, 2015
to the trial judge addressing the seventeen statutory factors in
N.J.S.A. 2C:43-12(e). The matter returned for oral argument on
September 23, 2015. In support of her decision to override the
prosecutor's rejection of defendant's PTI application, the trial
judge found the OCPO had minimized defendant's age and
motivation to seek treatment for his alcohol dependency as
factors favoring admission under N.J.S.A. 2C:43-12(e)(3). The
judge also found factor four, N.J.S.A. 2C:43-12(e)(4), relevant
because it requires the prosecutor to consider "the desire of
the complainant or victim to forego prosecution." In this
respect, the judge found:
[T]his offense is essentially a victimless crime. As indicated, there was no other person involved. There . . . wasn't even a motor vehicle violation. There were no injuries, accidents, or other . . . aggravating factors involved in this incident.
8 A-0536-15T2 The judge viewed defendant's addiction as "the root of his
problem." Thus, the judge was critical of the prosecutor's
failure to give "neither positive nor negative weight" to
defendant's alcoholism under factor five and six. N.J.S.A.
2C:43-12(e)(5)-(6). Factor eight requires the prosecutor to
consider "[t]he 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). The prosecutor argued this
factor weighed heavily against defendant's admission into PTI.
The judge disagreed. After reviewing defendant's driving
history as reflected in the MVC abstract, the judge made the
following observations:
Here, he's not even stopped for a moving violation, but a license check. There's no question that the defendant's conduct in driving while he was revoked exhibited very poor judgment. He knew his license was suspended. He doesn't contest that. But there are no facts to support a determination by the Prosecutor that the defendant has a history of antisocial behavior. Similarly, there's no aggravating factors that demonstrate the harm to society or the need to prosecute as claimed by the State, other than the double counting of the elements of this offense. At a minimum, the defendant had to have at least two [DWI's] to be charged with this offense.
Without more substantially distinguishing facts or circumstances, this does not create a history of antisocial behavior.
9 A-0536-15T2 Ultimately, the judge viewed the prosecutor's position as
mistakenly driven by the nature of the offense, without giving
due consideration to defendant's individual circumstances. The
judge relied heavily on her assessment of defendant's
"background, character, motivation, and potential for
rehabilitation." Based on these findings, the judge stated she
was satisfied that defendant had "clearly and convincingly
established" the prosecutor's decision to reject his application
into PTI amounted "to a patent and gross abuse of discretion,
which clearly subverts the underlying goals of [the] PTI
Program."
II
The purpose of the PTI Program is to provide the
opportunity to certain defendants to avoid the traditional
prosecutorial route by receiving rehabilitative services.
Guideline 1 to R. 3:28. The Supreme Court and the Legislature
created an application process requiring input and participation
from both the judicial branch, through the Criminal Division
Manager, Rule 3:28(b), and the executive branch, through the
county prosecutor. N.J.S.A. 2C:43-12. A determination for
suitability and participation in the PTI program must be made
"under the Guidelines for PTI provided in Rule 3:28, along with
10 A-0536-15T2 consideration of factors listed in N.J.S.A. 2C:43-12(e)."
Roseman, supra, 221 N.J. at 621.
Once a defendant has submitted an application for admission
into PTI, the Criminal Division Manager is required to "complete
the evaluation and make a recommendation within twenty-five days
of the filing of the application." R. 3:28(h). After the
Criminal Division Manager has submitted this recommendation,
"the prosecutor shall complete a review of the application and
receipt of the criminal division manager's recommendation."
Ibid. (emphasis added). Here, the record reflects that the OCPO
did not adhere to the rule's mandate. The record only contains
the prosecutor's submissions to the PTI court in response to
defendant's appeal. The language in Rule 3:28(h) is both clear
and emphatic. The prosecutor must independently evaluate
whether a defendant should be admitted into PTI.
The Supreme Court has also acknowledged the mandatory
nature of the prosecutor's participation at this phase of the
PTI-admission process. "[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.'" Roseman, supra, 221 N.J.
at 621-22 (quoting Watkins, supra, 193 N.J. at 520). The OCPO's
11 A-0536-15T2 failure to perform this important, legally required evaluation
is unacceptable. We expect the trial court to enforce this
aspect of the PTI Program's application process to ensure the
reviewing judge has a complete record before deciding a
defendant's challenge to the denial of his or her application.
Notwithstanding this oversight, the record before us contains
sufficient facts to enable us to reach a definitive
determination of the PTI judge’s decision to overturn the
prosecutor’s veto.
The State argues the PTI judge erred by not reviewing
defendant's application as involving an offense that carries a
presumption against admission into PTI. We disagree. As the
Court explained in Roseman, both N.J.S.A. 2C:43-12(b) and
Guideline 3(i) specify the offenses that carry statutory
presumptions against admission into PTI. Roseman, supra, 221
N.J. at 622. Under N.J.S.A. 2C:43-12(b)(2)(b), the following
types of crime carry a presumption against admission into PTI:
(1) "any crime or offense involving domestic violence," as
defined in N.J.S.A. 2C:25-19 of the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, including crimes
committed by a defendant while subject to temporary or permanent
restraints issued pursuant to the PDVA; and (2) offenses
involving violence or the threat of violence, or offenses where
12 A-0536-15T2 the defendant "is armed with and uses a deadly weapon or
threatens by word or gesture to use a deadly weapon[.]"
Guideline 3(i), meanwhile, creates a presumption against
admission into PTI for: (3) any "first- or second-degree crime,
[and] [(4)] any crime that is a breach of the public trust."
Roseman, supra, 221 N.J. at 622.
The fourth degree offense that defendant is charged with
committing here does not carry a presumption against admission
into PTI under either N.J.S.A. 2C:43-12(b) or Guideline 3(i).
As our Supreme Court has explained, "When interpreting statutory
language, the goal is to divine and effectuate the Legislature's
intent." Perez v. Zagami, LLC, 218 N.J. 202, 209 (2016)
(quoting State v. Buckley, 216 N.J. 249, 263 (2013)). As such,
"[t]here is no more persuasive evidence of legislative intent
than the words by which the Legislature undertook to express its
purpose; therefore, we first look to the plain language of the
statute." Id. at 209-10. Here, nothing in the text of either
N.J.S.A. 2C:43-12(b) or Guideline 3(i) supports classifying the
fourth degree offense codified in N.J.S.A. 2C:40-26(b) as the
type of crime that carries a presumption against admission into
PTI. If the Legislature had intended this crime to carry a
presumption against admission into PTI, it would have stated it
plainly in the text of N.J.S.A. 2C:43-12(b).
13 A-0536-15T2 This conclusion, of course, does not answer the question
underlying this appeal: Whether there is sufficient basis to
conclude the prosecutor's rejection of defendant's PTI
application amounted to a patent and gross abuse of discretion.
In our view, the PTI judge did not use the appropriate
deferential standard of review when she analyzed and answered
this question in the affirmative.
As the Court reaffirmed in Roseman, "PTI is essentially an
extension of the charging decision, therefore the decision to
grant or deny PTI is a 'quintessentially prosecutorial
function.'" Roseman, supra, 221 N.J. at 624 (quoting State v.
Wallace, 146 N.J. 576, 582 (1996)). Consequently,
the prosecutor's decision to accept or reject a defendant's PTI application is entitled to a great deal of deference. Trial courts may overrule a prosecutor's decision to accept or reject a PTI application only when the circumstances "'clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion.'"
[Id. at 624-25 (citations omitted).]
To establish the prosecutor's rejection of defendant’s PTI
application amounted to a patent and gross abuse of discretion,
a defendant must prove, by clear and convincing evidence,
that a prosecutorial veto (a) was not premised upon a consideration of all
14 A-0536-15T2 relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgement. . . . 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.
[Id. at 625 (quoting Bender, supra, 80 N.J. at 93).]
Here, the record does not support the PTI judge’s
conclusion that defendant satisfied this enhanced deferential
standard of judicial review. A careful reading of the PTI
judge's analysis shows the judge misunderstood the conduct the
Legislature intended to deter when it adopted N.J.S.A. 2C:40-
26(b). This threshold misperception tainted the judge’s review
of how the prosecutor applied the statutory factors in N.J.S.A.
2C:43-12. Under N.J.S.A. 2C:40-26(b), a person commits a fourth
degree crime when he or she operates a motor vehicle during the
period of license suspension in violation of N.J.S.A. 39:3-40,
if the underlying basis of the suspension or revocation was for
a second or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A.
39:4-50.4a. To establish culpability under N.J.S.A. 2C:40-26(b)
and trigger the mandatory 180-day term of incarceration, the
State must prove the individual was driving while serving a
court-imposed term of license suspension. State v. Perry, 439
N.J. Super. 514, 525 (App. Div.), certif. denied, 222 N.J. 306
15 A-0536-15T2 (2015). A person who drives before the MVC has administratively
restored his or her driving privileges, but after completing the
court-ordered suspension period, is not engaging in criminal
conduct under N.J.S.A. 2C:40-26b. Ibid.
Here, the PTI judge's analysis was heavily influenced by
defendant’s alleged attempts to address his alcohol addiction.
The judge, therefore, was critical of the prosecutor's position
minimizing the significance of defendant's efforts to address
his alcoholism by participating in addiction treatment programs.
The judge’s criticism of the prosecutor’s position in this
respect was misplaced in two ways. First, the only evidence of
defendant’s participation in alcohol treatment programs was
through the Intoxicated Drivers Resource Center (IDRC), a
mandatory aspect of the statutory penalties imposed by the court
under N.J.S.A. 39:4-50(b). Second, defendant’s alcohol
addiction did not play any role in his decision to drive his car
in defiance of a court-ordered ten-year suspension of his
driving privileges for his third DWI conviction. Defendant was
sober and in complete control of his faculties when he was
stopped by Officer Gerling on July 5, 2013.
In State v. Sylvester, we rejected the defendant’s
collateral attack of her conviction under N.J.S.A. 2C:40-26(b).
437 N.J. Super. 1, 7 (App. Div. 2014). In the course of our
16 A-0536-15T2 analysis of this issue, we noted that “[t]his was not a case in
which an unforeseen emergency compelled defendant to undertake a
course of action that she would not have taken under ordinary
circumstances." Ibid. Thus, "[a]bsent any mitigation, [the
defendant's] actions can be reasonably characterized as
contemptuous of the court's authority.” Ibid.
Here, defendant’s defiance of court-ordered suspensions
reflects the same contempt of the court’s authority. Defendant
has not presented any facts that would mitigate or explain his
decision to drive his car less than two months after his license
was suspended for his third DWI conviction. The record also
shows defendant has multiple convictions of driving while
suspended in violation of N.J.S.A. 39:3-40. In short, his
decision to drive while his license was suspended was not an
isolated or aberrant event. So far, the sanctions available
under Title 39 have not deterred defendant from driving while
suspended for a DWI conviction.
"The primary purpose behind New Jersey's drunk-driving
statutes is to curb the senseless havoc and destruction caused
by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512
(1987). Since the Court decided Tischio nearly thirty years
ago, the penalties for driving while intoxicated have
consistently increased in severity as a means of deterring "the
17 A-0536-15T2 senseless carnage on our highways" caused by those who drive
drunk. Ibid. (quoting State v. D'Agostino, 203 N.J. Super. 69,
72 (Law Div. 1984)). The Legislature's decision to
criminalize the act of driving while one’s license is suspended
for a second or subsequent DWI conviction is the latest addition
to this arsenal of deterrence.
The Legislature's purpose in requiring a mandatory period of "imprisonment" for this offense, with no possibility of parole, is also clear. Alternatives to jail, like the inpatient drug rehabilitation program involved in [State v. French, 437 N.J. Super. 333 (App. Div. 2014)], or the home detention and community service programs at issue here, do not protect the public in the same way as incarceration. This public safety consideration is especially relevant in the case of a defendant who loses his or her driving privileges for DWI, but then continues to drive despite the license suspension.
[State v. Harris 439 N.J. Super. 150, 160 (App. Div. 2015).]
The PTI judge's decision to override the prosecutor's
rejection of defendant's PTI application failed to give due
deference to these public policy considerations. The judge also
failed to defer to the prosecutor's consideration of defendant's
history of Title 39 violations; these violations reveal
defendant’s multiple instances of defiance of court-ordered
suspensions of his driving privileges. In light of these
18 A-0536-15T2 factors, the prosecutor's rejection did not constitute a patent
and gross abuse of discretion. Roseman, supra, 221 N.J. at 627.
Reversed and remanded.
19 A-0536-15T2