On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. 04005548.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2006
Before Judges Stern, Grall and Miniman.
This is an appeal by the State, pursuant to R. 3:28(f),*fn1 from an order enrolling defendant into the Pretrial Intervention Program (PTI) in Union County over the prosecutor's objection in a case involving indictable charges of third-degree assault by auto while intoxicated and fourth-degree assault by auto - leaving the scene of an accident. The enrollment was ordered after defendant's entry of a guilty plea to an accusation charging assault by auto while intoxicated in violation of N.J.S.A. 2C:12-1c(2).
On this appeal the State argues:
POINT I. THE LAW DIVISION INCORRECTLY HELD THAT THE STATE MAY NOT RELY ON THE CHARGES, INCLUDING THAT DEFENDANT WAS DRIVING WHILE INTOXICATED, FOR PURPOSES OF PTI REVIEW.
POINT II. THE LAW DIVISION IMPROPERLY SUBSTITUTED ITS OWN ANALYSIS OF THE PTI GUIDELINE FACTORS FOR THAT OF THE PROSECUTOR.
POINT III. THE LAW DIVISION ERRED IN NOT RECOGNIZING THAT ASSAULT BY AUTO INVOLVING A VIOLATION OF N.J.S.A. 39:4-50, DWI, IS AN ACT OF . . . VIOLENCE, AN ACT GENERALLY WARRANTING REJECTION FROM PTI UNDER GUIDELINE 3(i).
POINT IV. THE LAW DIVISION ERRED IN OVERTURNING THE PROSECUTOR'S REJECTION OF DEFENDANT'S PTI APPLICATION, AS THE REJECTION WAS NOT A CLEAR ERROR IN JUDGMENT AND DID NOT SUBVERT THE GOALS OF THE PTI PROGRAM.
We reverse the order under review.
On December 11, 2004, defendant was charged with third- degree assault by auto while intoxicated, N.J.S.A. 2C:12-1c(2), fourth-degree assault by auto - leaving the scene of an accident, N.J.S.A. 2C:12-1.1, and five related motor vehicle offenses including (1) driving while intoxicated, N.J.S.A. 39:4- 50; (2) refusal to submit to a breath test, N.J.S.A. 39:4-50.4a; (3) careless driving, N.J.S.A. 39:4-97; (4) leaving the scene of an accident, N.J.S.A. 39:4-129; and (5) failure to report an accident, N.J.S.A. 39:4-130.*fn2 Defendant's PTI application was rejected by the Pre-Trial Intervention Program on March 3, 2005. The program director based the rejection on Guidelines 2 and 3(i)(3) of R. 3:28, and stated:
Your offense was deliberately committed with violence or threat of violence against another person which constitutes grounds for rejection under the guidelines for operation of pretrial intervention in New Jersey. You appear before the court charged with assault by auto and leaving the scene of a motor vehicle accident.
The police spoke with (5) witnesses who observed you hit the victim with your vehicle and leave the scene of the accident. You did not report the accident to the police. The victim suffered numerous injuries from the impact of your vehicle and he was transported to a trauma hospital.
You did not check on the condition of the victim or offer assistance. You were careless and reckless in your behavior towards the victim.
Prior to the accident you reported to the police that you had been drinking alcoholic beverage[s] at a local drinking establishment. The victim was reported walking on the shoulder of a high volume highway and you did not observe him. The police reported to your residence based on a witness obtaining your license plate number. The police reported the detection of alcoholic beverage from your breath. The police also conducted field sobriety tests at your residence. You failed the tests and were charged with refusal to submit to the breathalyzer test.
The offense charged is of such a serious nature that it far outweighs whatever positive factors might be present in your case, and acceptance into the pretrial intervention program would deprecate the serious nature of the offense.
You have not demonstrated sufficient effort to effect necessary behavioral change as is demonstrated by your failure to provide sufficient documentation of your alien status.
The deliberate act of violence committed by your use of alcohol and driving your motor vehicle; and then leaving the scene of the accident where you left a victim lying in the street seriously injured warrant your rejection from the PTI program.
On March 9, 2005, defendant entered a negotiated guilty plea to an accusation charging assault by auto while intoxicated in exchange for the prosecutor's recommendation to dismiss the charges of assault by auto - leaving the scene, careless driving and failure to report an accident.*fn3 As we understand the "Plea Form," the prosecutor recommended a maximum 180-day custodial sentence as a condition of probation.*fn4 The "Plea Form" indicates that defendant "will appeal PTI rejection."
The parties agree that on or about March 10, 2005, defendant appealed the rejection of her PTI application to the Law Division, see R. 3:28(h), and on March 15, 2005, the Union County Prosecutor issued a letter agreeing with the PTI rejection and indicating that "the State does not consent to defendant's admission to PTI." While recognizing that defendant had no criminal record, the prosecutor rejected the application essentially because "this ...