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State v. Page

New Jersey Superior Court, Appellate Division

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. Maddocks, 80 N.J. 98, 104 (1979); State v. Sutton, 80 N.J. 110 (1979); State v. Leonardis, 73 N.J. 360, 382 (1977). Absent such a showing, denial of participation in PTI by the judge was mandated.

The prosecutor concluded that the death by auto under the facts of this case, including the degree of defendant's participation therein as a passenger and the state of his sobriety at the time, constituted such a gross and wanton disregard for the rights and safety of others that it was an act of deliberate violence within the meaning of Guideline 3(i)(3). That Guideline provides that if the crime was deliberately committed with violence or the threat of violence against another person, a defendant's application should generally be rejected, unless the defendant presents to the program director, and through him to the prosecutor, facts demonstrating his amenability to the rehabilitative process, showing compelling reasons justifying his admission and establishing that a decision against enrollment would be arbitrary and unreasonable. The drinking of alcoholic beverages to excess and the grabbing of the steering wheel by defendant by reason of horseplay or otherwise, at least for PTI purposes, appropriately may be deemed deliberate and intentional acts causing the violent and untimely death of an innocent victim. In this sense the offense may be said to constitute an act of deliberate violence or threat of violence.

Causing death by auto under N.J.S.A. 2A:113-9 does not require proof that defendant deliberately intended to harm or commit violence against the victim. The element of intent to harm is supplied by a constructive intent as to consequences, "which entering into the intentional act which produces harm, namely, the driving of the vehicle, the law imputes to the actor, so that conduct which otherwise would be merely negligent becomes, by reason of reckless disregard of the safety of others, a willful or wanton wrong." In re Lewis, 11 N.J. 217, 222 (1953).

That defendant was a passenger in the vehicle does not necessarily preclude a determination for PTI purposes that the statute has been violated by him in view of the nature of his conduct. We add that we are not deciding as a matter of law whether defendant, as a passenger, could be found guilty of such a violation, since that issue is more appropriately a matter to be decided during the course of the criminal proceedings.*fn1

If Guideline 3(i)(3) is read restrictively, conceivably defendant's acts might not be deemed to constitute a crime deliberately committed with violence or threat of violence against another person. But such a restrictive interpretation is not justified here where a death is involved in light of the factual background, including defendant's intoxication, surrounding that event and the imputed intent applicable in this type of case. Thus, the judge was not warranted in concluding that it was unreasonable for the prosecutor to have determined that defendant's behavior and condition at the time of the accident constituted a crime that was deliberately committed with violence or threat of violence against another person under the Guideline. The extreme danger to the public here involved sufficed to support the prosecutor's conclusion that the offense satisfied the requirement of the Guideline. Defendant acted deliberately in drinking to excess and grabbing the wheel and an innocent victim suffered a violent death. See State v. Ortiz, 81 N.J. 56 (1979), rev'g 165 N.J. Super. 190 (App. Div. 1979); State v. Litton, 155 N.J. Super. 207 (App. Div. 1977).

Even if the offense were not covered by Guideline 3(i)(3), we are satisfied that the prosecutor's rejection of defendant's PTI application on the ground that the crime was such that he would be remiss in his duties if defendant were granted diversion is sufficiently meritorious to preclude the veto by the judge of that determination. There is no doubt that a prosecutor's refusal to divert where appropriate can be based solely on the offense charged. State v. Maddocks, supra at 108; State v. Bender, supra at 89; State v. Leonardis, supra at 382.

Death by auto is a serious crime and the prosecutor properly, in the exercise of his discretion, determined that here defendant's admission into PTI would deprecate the seriousness thereof and substantially undermine the goal of deterrence in this area. We do not necessarily agree that a sentence of incarceration is required after a conviction in this type of case in order to act as a deterrent. Nevertheless we and the judge should not deny to the prosecutor his policy determination that vigorous criminal prosecution of this kind of offense is essential to deter further threats of violence and death to the public by those who operate a motor vehicle at excessive speed or under the influence of intoxicants. The judge should not have interfered with this discretionary decision by the prosecutor or have discounted the latter's responsiveness to what he properly considered the prevailing level of public anxiety over misconduct of this nature by his choice here of the goal of public deterrence as opposed to PTI, the least burdensome form of rehabilitation for the offender. State v. Sutton, supra at 119; State v. Litton, supra at 215.

Although not specifically given in his statement of reasons before the judge, it is evident therefrom that deterrence in the present case was an, if not the, important factor in the prosecutor's rejection of defendant from PTI. Concededly the statement of reasons given below by the prosecutor could have been more detailed. See State v. Sutton, supra at 117. Nevertheless, we are satisfied that the prosecutor's refusal to consent to defendant's admission into PTI appropriately was based on the nature and circumstances of the offense charged, with due consideration of the factors applicable to this defendant as an individual; and that the prosecutor here did give full and careful consideration to defendant's application in the light of the total circumstances of the nature of the offense and the offender. See State v. Bender, supra at 94; State v. Sutton, supra at 117, 119. We add that, as already indicated, defendant had had prior traffic violations and had been in one prior accident as a driver.


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