November 15, 2007
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
ANDREA SANKNER, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-10-2210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Payne and Sapp-Peterson.
The State appeals from the trial court's order directing defendant Andrea Sankner's admission into the Monmouth County Pretrial Intervention Program (PTI) over the State's objection. We reverse the judgment of the trial court admitting defendant into PTI and deny defendant's cross-appeal seeking pretrial discovery of the Monmouth County Prosecutor's Office consideration of PTI applications filed by defendants involved in drinking and driving-related offenses.
The evidence which forms the basis of the indictment arises out of a motor vehicle accident that occurred on the evening of February 20, 2006, when defendant drove her 2001 Kia Wagon into the back of a 1993 Jeep that was stopped for a traffic light at the intersection of Routes 35 and 70 in Wall Township. The driver of the other vehicle sustained injuries and was transported from the scene via ambulance to a nearby hospital.*fn1
He suffered a herniated disc and a bulging disc as a result of the accident and apparently continues to suffer from neck and back pain. When police responded to the scene, they observed defendant seated in the driver's seat of her vehicle holding a small dog. When asked whether she was injured, defendant responded, "What[,] are you nuts?" She was then asked to produce her driving credentials and once again responded, "What[,] are you nuts?" The arresting officer described defendant's speech as slurred, reported that she stumbled as she exited her vehicle, leaned on her vehicle for balance, and was uncooperative. Defendant was arrested and transported to the local police station where she refused to submit to a breathalyzer test. She was issued summonses for reckless driving (N.J.S.A. 39:4-96), driving while intoxicated (N.J.S.A. 39:4-50), and refusal to submit to a breathalyzer test (N.J.S.A. 39:4-50.4a). She was subsequently indicted for third-degree assault by auto, N.J.S.A. 2C:12-1.1.
The Uniform Defendant Intake prepared as part of the PTI application process revealed that at the time of her arrest, defendant was in her late forties, self-employed in the jewelry business, and also worked weekends as a bartender. She had no prior criminal record, but between 2001 and 2003, committed three motor vehicle offenses: careless driving, speeding, and driving with an obstructed mirror. She reported that she was in good mental health but physically suffered from arthritis, hearing loss in her right ear, and was a breast cancer survivor. She denied having a drinking problem. As to the events on the evening of the accident, defendant acknowledged that she had consumed wine and a martini. She intended to go to her sister's house, which was across the street from the restaurant where she had dinner, but instead "blacked out" and started driving home.
In rejecting defendant's application, the Prosecutor considered the statutory factors that pertain to admission into PTI as set forth in N.J.S.A. 2C:43-12e(1) to e(14), specifically: (1) the location of the accident was "a busy intersection of a major highway interchange where the potential for additional vehicles being involved was great" and plaintiff's actions resulted in "physical, financial, and emotional injury to the victim" (Factors e(1) and e(2)); (2) the victim was still being treated for his injuries (Factor e(4)); (3) assault by auto is "violent both in the act itself and in the possible consequences of driving under the influence" (Factor e(10)); and (4) driving under the influence causing injury to another requires strong public condemnation. The public must be assured that those who create grave and lethal danger to other motorists because of impaired driving will not be treated lightly" (Factor e(14)).
Defendant appealed the denial of her admission into PTI to the Law Division. The judge found that there was nothing about the facts surrounding the motor vehicle accident that was "so offensive or that should really strike the conscience as being so overbearing that defendant should be rejected [from PTI,]" (Factors e(1) and e(2)). The judge also did not find sufficient opposition to defendant's admission into the program from the victim, (Factor e(4)). In addition, the judge concluded that the defendant's crime "is not of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution[,]" (Factor e(14)). The judge concluded that the prosecutor's rejection of defendant for admission into PTI was a patent and gross abuse of discretion and ordered defendant admitted into the program. The State filed a timely appeal.
The State raises the following point for our consideration:
THE PROSECUTOR'S DECISION REJECTING THE DEFENDANT FROM PTI WAS NOT ARBITRARY OR CAPRICIOUS, AND THE TRIAL COURT ERRED BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE PROSECUTOR.
PTI was designed to provide "prosecutorial options to augment those traditionally exercised by law enforcement[.]" State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). It was not designed to transfer power from the prosecutor to the court. Ibid.; State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993); Pressler, Current N.J. Court Rules, Guideline 1 to R. 3:28 (2007). To that end, the prosecutor is vested with discretion to determine which defendants should be diverted away from prosecution. Leonardis II, supra, 73 N.J. at 381. Consequently, the exercise of prosecutorial discretion to decide who is or is not an appropriate candidate for pretrial diversion is subject to extremely limited judicial review. Ibid. As the Court noted in State v. DeMarco, 107 N.J. 562 (1987), such decisions are not simply entitled to deference; rather, they are accorded "enhanced" deference and will rarely be overturned except where the court sees the "most egregious examples of injustice and unfairness." Id. at 566 (quoting Leonardis II, supra, 73 N.J. at 384.) This is true even where the trial judge would have found otherwise or views the rejection as harsh. Id. at 567. Stated differently, a trial court may divert a defendant into PTI over the objection of the prosecutor only when the defendant has clearly and convincingly shown that the failure to agree to admission into PTI constitutes a "patent and gross abuse of discretion." Leonardis II, supra, 73 N.J. at 382.
An abuse of discretion is established if defendant demonstrates that a "prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). Moreover, the court must be satisfied that the "prosecutorial error complained of will clearly subvert the goals underlying [PTI]." Ibid. Absent evidence to the contrary, courts presume that the prosecutor considered all relevant factors before rendering a decision. State v. Dalglish, 86 N.J. 503, 509 (1981).
Here, in concluding that the prosecutor's rejection of defendant was a patent and gross abuse of discretion, the judge did not comment upon the prosecutor's consideration of the fact that the location of the incident could have caused even greater harm than that which actually resulted. Nor did the judge address the Prosecutor's consideration of the fact that the victim was still being treated for his injuries. Finally, the judge did not articulate how the Prosecutor's reasoning that causing injury to another while operating a motor vehicle under the influence requires strong public condemnation, subverts the goal of PTI. Rather than accord enhanced deference to the Prosecutor's consideration of these factors, the judge "substituted [her] own judgment for that of the Prosecutor, and performed what was, in essence, a de novo review of defendant's application," finding that defendant belonged in PTI. Kraft, supra, 265 N.J. Super. at 113 (App. Div. 1993). While the decision to reject defendant from admission into the program obviously appeared harsh, from the perspective of the court, that is not the test. DeMarco, supra, 107 N.J. at 567.
Accordingly, the trial court order admitting defendant into PTI is reversed and the matter remanded for further criminal proceedings in accordance with the Prosecutor's original determination.
In her cross-appeal, defendant urges that in the event of a remand, she is entitled to discovery on the practice and policy of the Monmouth County Prosecutor's Office concerning the rejection of defendants involved in drinking and driving-related offenses. Although there is no order from the trial court addressing this issue, Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) (noting that appeals are taken from orders and judgments), we assume this is so because the trial court admitted defendant into PTI. Nonetheless, in addressing the merits of the relief defendant seeks, we are persuaded that defendant failed to make the requisite showing entitling her to such relief. "A defendant must establish a colorable basis for a claim of selective enforcement in order to obtain pretrial discovery of relevant items in the exclusive control of a government agency." State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991). That burden has not been met here. Beyond articulating her suspicion that there is a per se policy in Monmouth County "that a defendant in a drinking-driving situation shouldn't get PTI[,]" defendant presented no evidence to the trial court or on appeal to support this contention.
The judgment of the trial court admitting defendant into PTI is reversed and the matter remanded for further criminal proceedings in accordance with the Prosecutor's original determination. The cross-appeal is denied. We do not retain jurisdiction.