On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether the prosecutor committed an abuse of discretion by denying an application for pretrial intervention (PTI) based on the applicant's past driving record.
Shortly after midnight on August 1, 2001, the Franklin Township Police Department received citizen information that a car had entered a parking lot, struck two parked cars, and then was driven back onto the streets. Police spotted Jeffrey Negran's vehicle, which met the description received. Two marked police vehicles came up behind Negran with sirens and patrol lights activated, but Negran failed to pull over. Instead, he proceeded down Franklin Boulevard through cross-streets, veering off the roadway and up onto the curb on several occasions. After proceeding a few blocks further, Negran again veered into the curb and punctured his tire, causing the vehicle to come to a stop. While placing Negran under arrest, the officers detected a strong odor of alcohol. A Breathalyzer test was administered and twice it measured Negran's blood alcohol content at.19 percent.
Following his arrest, Negran voluntarily entered into a program of alcohol dependency rehabilitation, completing an intensive outpatient program administered by Princeton House. Negran's involvement with the Alcoholics Anonymous portion of that program is ongoing.
A Somerset County Grand Jury issued an indictment charging Negran with third degree eluding. Application was made for admission into the Somerset County PTI program. The PTI Director informed Negran that he was an appropriate candidate for the program. The Director noted that Negran had no prior contact with the criminal justice system, was charged with a nonviolent crime of the third degree, and had successfully completed outpatient rehabilitation. The Director conditioned the favorable recommendation on Negran's continued participation in aftercare and submission to drug and alcohol testing and treatment as recommended by Probation.
The Somerset County Prosecutor refused consent to Negran's entry into PTI. In a January 10, 2002 letter, the Prosecutor cited to Negran's extensive driving record and a prior DWI conviction as the basis for the denial. The letter stated that Negran was 36 years old, and had a driving record that dated back to 1985. The letter noted that: Negran had been convicted of speeding six times between 1984 and 1992; his license was suspended twice; and, most importantly, Negran was convicted of driving while intoxicated (DWI) in 1989. According to the Prosecutor, Negran's driving record demonstrated a flagrant disobedience for the laws of the State and a disregard for the safety of others. He also characterized Negran's crime as part of a continuing pattern of anti-social behavior.
Negran's motion to appeal under Rule 3:28(h) was granted. The motion court found a patent and gross
abuse of discretion because the State's rejection was based on inappropriate factors. The court observed that although an applicant's past criminal convictions may be considered, the Guidelines governing PTI admission contain no authorization for the use of past motor vehicle offenses as a basis for denial. Acknowledging the undesirable nature of Negran's driving history, the court nonetheless concluded that that was insufficient reason for denying admission into PTI. The court noted that the infractions spanned a period of seventeen years, ten years had elapsed since the last motor vehicle offense, and the DWI offense occurred more than thirteen years before.
On the State's motion for leave to appeal, the Appellate Division affirmed in an unpublished opinion. The Appellate Division concluded that prior motor vehicle convictions did not comport with the prior "criminal offense" criterion of the Guidelines. It further reasoned that if analyzed as part of an alleged "pattern of anti-social behavior," the long passage of time since the last offense rendered Negran's driving history incapable of establishing a "continuing pattern."
The Supreme Court granted the State's petition for certification.
Negran's driving history does not demonstrate a "pattern of anti-social behavior" because there is not a sufficient temporal connection between Negran's past motor vehicle offenses and the eluding charge.
1. As a diversionary program, PTI serves both prosecutors and applicants. It augments the options of prosecutors in disposing of criminal matters. And, it allows applicants to avoid ordinary prosecution through early rehabilitative services or supervision when those services or supervision can be expected to deter future criminal behavior. Admission requires a positive recommendation from the PTI director and the consent of the prosecutor. Admission determinations require consideration of the individual applicant's features that bear on his or her amenability to rehabilitation. (pp. 7-9)
2. Courts allow prosecutors wide latitude in deciding whom to divert into the PTI program. The scope of judicial review is severely limited. That review serves to check only the "most egregious examples of injustice and unfairness." A prosecutor's discretion is not without limits, however. A rejected applicant is entitled to a clear statement of reasons. The writing requirement is intended to facilitate judicial review, afford applicants an opportunity to respond, and dispel suspicions of arbitrariness. An applicant attempting to overcome a prosecutorial veto must establish that the refusal was based on a patent and gross abuse of discretion. For an abuse of discretion to rise to the level of patent and gross, it must be shown that the prosecutorial error will clearly subvert the goals underlying PTI. (pp. 9-11)
3. Under the statute, a prosecutor may consider an applicant's record of criminal or penal violations. N.J.S.A. 2C:43-12e(9). Because motor vehicle violations are not crimes, but rather only petty offenses, they do not disqualify an applicant under this provision. Recently, the Court has held that a prosecutor may consider an applicant's juvenile record in evaluating his suitability for PTI. State v. Brooks, 175 N.J. 215 (2002). In doing so, the Court noted that pursuant to N.J.S.A. 2C:43-12e(8), an applicant's "anti-social behavior" may be considered in evaluating his suitability for PTI. The reasoning of Brooks supports the conclusion that an applicant's past driving record might be a relevant consideration in the prosecutor's PTI decision. (pp. 11-13)
4. In Brooks, the Court cautioned prosecutors about the need to act reasonably when relying on prior juvenile arrests as a reason for denying PTI admission. The Court observed that some juvenile infractions might be so minor or distant in time that they provide no reasonable basis to support a prosecutor's rejection. Here, the Prosecutor seeks to rely on a DWI violation that occurred twelve years before the crime, and traffic violations, with the last one occurring almost ten years before the crime. Those violations are too temporally distant to reasonably support the State's assertion of a pattern of anti-social behavior such that PTI should be denied. Moreover, the Prosecutor's denial disregarded considerations of other relevant factors, including the applicant's efforts to seek help for his disorder and his progress in therapy. In these circumstances, the Court agrees that the State committed a patent and gross abuse of discretion in denying PTI admission. (pp. 13-15)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, ZAZZALI, ALBIN and WALLACE join in JUSTICE LaVECCHIA's opinion.
The opinion of the court was delivered by: ...