On appeal from the Superior Court of New Jersey Law Division, Burlington County, No. 2002-05-0620-I and No. 2005-09-1232-I.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2006
Before Judges Coburn, Axelrad and Gilroy.
In these appeals, consolidated for purposes of this opinion, we review two Law Division orders admitting defendants to the Pretrial Intervention Program ("PTI") over the objection of the Burlington County Prosecutor. The judge found that in both cases the prosecutor's action was a patent and gross abuse of his discretion because, without giving sufficient weight to other relevant factors, he rejected the applications on the sole ground that the defendants were illegal aliens. Although we agree that PTI may not be denied solely because a defendant is an illegal alien, we reverse both orders because we are satisfied that it can be a relevant factor and that in each case the prosecutor reasonably took it into account in addition to other relevant factors, reaching conclusions that were well within his discretion.
Before addressing each defendant's particular circumstances, we take note of the general legal principles governing PTI. In deciding PTI applications, prosecutors must consider "an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995). And that evaluation "must be conducted in compliance with the criteria set forth in N.J.S.A. 2C:43-12e, and reinforced in Guideline 3 [of Rule 3:28]." State v. Negran, 178 N.J. 73, 80-81 (2003). But prosecutors have "wide latitude" in their PTI decisions and our scope of review is "severely limited." Id. at 82. The judiciary's role is limited to checking "only the 'most egregious examples of injustice and unfairness.'" Ibid. (citing, among other cases, State v. Leonardis, 73 N.J. 360, 384 (1977)). And a "defendant attempting to overcome a prosecutorial veto must clearly and convincingly establish that the prosecutor's refusal to sanction admission into a PTI program was based on a patent and gross abuse of his discretion . . . ." Ibid. (internal quotations omitted).
Defendant David Liviaz was indicted for a third degree crime and a fourth degree crime involving false documents, N.J.S.A. 2C:21-1(a)(3)(count one), and N.J.S.A. 2C:21-2.1(c) (count two); fourth degree false swearing, N.J.S.A. 2C:28-2(a) (count three); and fourth degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4)(count four). His application for PTI was denied by the program director and by the prosecutor.
The prosecutor's rejection letter of March 15, 2005, was prepared by Assistant Prosecutor Deborah A. Siegrist, who described the events leading up to defendant's arrest as follows:
I first considered the nature and facts of the offense. Police responded to a report of two suspicious persons at the Medford branch of the Division of Motor Vehicles (now MVC). The DMV employee pointed out defendant to the officer and told the officer that defendant's companion, no longer present, had presented an application for a driver's license along with a birth certificate that appeared to be fraudulent. The birth certificate presented was in the name of Erwin William Alvarado. The driver's license application was in the name of Erwin William Alvarado. When the responding police officer asked defendant for identification, defendant supplied a driver's license in the name of Emilio Purchury with a Newark address. He told the officer that he had merely come to the DMV to fill out a change-of-address form. He did not know the address to which he was changing. He said he had come down from Newark with someone named Juan Carlos.
Police took defendant to the station for questioning. He signed a Miranda card with the name Emilio Purchury. For the arrest report, he gave his name as Emilio Purchury, with a Newark address and a date of birth of 1/28/73. He signed his fingerprint card as Emilio Purchury. Police immediately sent in his fingerprints, and they came back as belonging to David Liviaz of Belleville, NJ, date of birth 9/28/72. When confronted with that information, defendant admitted that he had lied and that he had obtained all of the information from his friend Emilio Purchury, who was leaving the country and no longer needed it.
Meanwhile, police had located the second "suspicious person" at a Burger King near the DMV and brought him to the DMV. Defendant claimed not to know the person. The person, who identified himself as Alfonso Quintana, told police that he had in fact come with defendant to the DMV. "Quintana" said that he lived in Paterson and defendant lives in Newark and drives into Paterson and gets guys to take driver's license tests for him. On that date, he was approached by defendant and asked to go for a ride and get a driver's license. He said that defendant, known to him only as "Chato," drove him down to the Medford DMV. Defendant provided him with a birth certificate and instructed him to enter the DMV and apply for a driver's license in that name, take the driver's permit examination and provide the permit to defendant. Defendant would then pay him $300. Through fingerprints, police determined that this second man was actually Victor Sanchez, now a co-defendant in this case.
The police contacted Middle Township, New Jersey, from where the birth certificate submitted by Sanchez purported to be. They confirmed that the birth certificate was a forgery; there was no Erwin William Alvarado born in their jurisdiction. Furthermore, over the previous nine months, there had been approximately ten other instances of people trying to pass forged Middle Township birth certificates throughout the state.
In defendant's vehicle, police found a driver's license application in the name of Apolonio Aguilar-Flores, an examination permit in the name of Miriam C. Reina-Jimenez and an examination permit in the name of Jennifer Torres. Police contacted the INS, who advised that David Liviaz was ...