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State v. Page

April 18, 1980


On appeal from Superior Court, Law Division, Morris County.

Before Judges Fritz, Kole and Lane.


The opinion of the court was delivered by KOLE, J.A.D.

Defendant was indicted for causing death by auto, N.J.S.A. 2A:113-9. He applied for admission to the Morris County Pretrial Intervention Program (PTI). The program director submitted a report to the trial judge concerning defendant's application, in which he found that defendant was "a suitable candidate for P.T.I." However, he made no recommendation regarding defendant's admission into the program. His report stated that the record he had reviewed presented at least three different versions of the alleged criminal event and that it "seems unlikely that the truth will ever be completely known"; that defendant's attitude and past history indicated that he was amenable to short-term rehabilitation; that the offense, however, involved the most serious of crimes, the violent death of an innocent victim; that the PTI Guidelines provide for the exclusion of defendants whose charges indicate deliberate and intentional violence against another, but that it was difficult to determine whether the offense here was deliberately committed, and that although as far as his history and attitude were concerned, PTI considered defendant a likely candidate, the offense was of a nature which seemed "to elude categorization within PTI Guidelines." For these reasons the PTI Director made no recommendation, "leaving determination in this ambiguous and paradoxical situation to the discretion of" the judge.

After the prosecutor orally notified defendant's attorney that the State intended to oppose application, defendant applied to the court for enrollment in PTI over the prosecutor's objections.

Thereafter the prosecutor sent a memorandum to the judge in which he set forth the position of the State on defendant's application for diversion, and furnished a statement of reasons for rejection. The prosecutor pointed out that immediately prior to the collision defendant, a passenger, was engaged in horseplay and grabbed the steering wheel, and that that action caused the death of the victim. He also stated that defendant's blood alcohol three hours after the accident was 0.105%. The specific reasons advanced by the prosecutor in support of the State's rejection of defendant's application were: (1) defendant's gross and wanton disregard for the rights and safety of others by his actions on the night of December 6, 1978 constituted an act of deliberate violence, in violation of Guideline 3(i), which provides that if the crime with which the defendant is charged was deliberately committed with violence or the threat of violence, the defendant's application should generally be rejected; (2) in any event, the State was not limited to rejecting to rejecting applications of defendants on the basis of the nature of the offense only when the defendant's criminal activities fall within one of the categories in Guideline 3(i). The criminal action of defendant was so abhorrent that the prosecutor would be remiss in his duties if defendant were granted diversion.

After a hearing the judge ruled that the prosecutor had abused his discretion in denying defendant's application on the following grounds: (1) the complete absence of any criminal involvement by defendant prior to this incident and (2) a clear error in judgment on the part of the prosecutor since it was not the intent of the Guideline that this type of offense under these particular facts be deemed to be a deliberate act of violence committed against another. The judge concluded that neither the crime nor the act itself here was of "the particular quality that should exclude" defendant, otherwise a proper candidate for the program, from PTI.

The State, by leave granted, appealed from the ensuing order admitting defendant into PTI. We reverse.

But for the nature of the offense and except as hereafter indicated, defendant, 24 years of age, has nothing in his background or history that would preclude his being a viable PTI candidate.

According to the State's version of the offense, at 11:30 p.m. on December 6, 1978 defendant was a passenger in a truck driven by John Borkoski on Long Hill Road, Millington, New Jersey. Both Borkoski and defendant had been drinking beer prior to the accident. The occupants of two other vehicles, which had been passed by Borkoski, informed the police that Borkoski had passed them at a high rate of speed, approximately 55 m.p.h. Immediately after he had passed a vehicle driven by Thomas Donnelly, Borkoski alleged that defendant "started 'grab assing' and grabbing the [steering] wheel." Defendant informed the police after the accident that "he was fooling around grabbing the wheel" but that he did not know why he did it. Apparently, defendant released the wheel and, at that point, Borkoski's truck swerved and hit a car that was coming in the opposite direction. The driver of the other vehicle, Mark Buhager, age 18, was killed immediately as the result of a skull fracture and was pronounced deal at the scene of the accident at 11:49 p.m. Defendant and Borkoski were taken to the hospital. In the treatment room the police officer advised defendant of his Miranda rights, which defendant apparently waived. The officer also informed defendant that he was under arrest for drunken driving and that there was a possible pending charge of death by auto against him. Defendant told the officer that he did not know why he had grabbed the wheel. At this point Borkoski, who was also in the room, gestured towards defendant and stated that defendant "had grabbed 'the fucking wheel.'"

Defendant's version of the incident was somewhat contradictory, ranging from his conduct's constituting a form of "horseplay" to an endeavor to save his own life by grabbing the wheel of a car that was being operated by Borkoski in a recklessly fast manner. He, however, did not deny drinking before the accident occurred.

At the hospital a prosecutor's investigator, at 2:05 a.m. and 2:30 a.m., respectively, drew blood samples from Borkoski and defendant. An analysis of these samples showed that defendant's blood contained 0.105% alcohol. See N.J.S.A. 39:4-50.1(3). Borkoski's blood contained 0.087% alcohol. See N.J.S.A. 39:4-50.1(2). Both men were charged with driving under the influence of intoxicating liquor, N.J.S.A. 39:4-50, and released on their own recognizance.

Subsequently, on March 12, 1979 defendant was indicted for death by auto. It should be noted that prior to the incident here involved defendant had had some minor traffic violations and had been in one previous accident as a driver.

In view of the limited scope of review by the trial judge in PTI matters, the judge erred in holding that the prosecutor's decision not to permit diversion of this defendant into PTI in effect constituted a patent and gross abuse of discretion. Defendant has not clearly and convincingly established that the prosecutor's refusal was based on such abuse of discretion. He has failed to show that the prosecutorial veto was not premised on a consideration of all relevant factors, was predicated on irrelevant or inappropriate factors or amounted to a clear error in judgment; nor did he show that the prosecutor's determination in this case would clearly subvert the goals underlying PTI. State v. Bender, 80 N.J. 84, 93 (1979); State v. ...

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