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State v. Gutierrez


January 24, 2008


On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-08-0626.

Per curiam.


Submitted January 14, 2008

Before Judges S.L. Reisner and Baxter.

In this appeal, we review a February 28, 2007 Law Division order unconditionally admitting defendant into the Pretrial Intervention Program (PTI) over the objection of the Cape May County Prosecutor. We affirm.


On July 20, 2006, Ocean City police were dispatched to 9th and Bay Avenue to investigate a report of a motor vehicle accident. Upon arrival, they observed a vehicle in the middle of the street with two flat tires on the passenger side. Further investigation revealed that the vehicle had struck the curb, a light standard and two city signs, causing a total of $4,376 in damage to the light standard and the signs. The driver, defendant Juan Gutierrez, was unharmed, but appeared intoxicated. After defendant failed a field sobriety test, he was arrested for driving while intoxicated (DWI). During a search of defendant incident to that arrest, police found .008 grams of cocaine.

While at police headquarters, defendant told police that he was a citizen of Colombia, and that his visa had expired.*fn1 When police contacted Immigration and Customs Enforcement (ICE), police were told they need not detain defendant on the immigration matter.

In August 2006, defendant was indicted for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10. Shortly thereafter, he applied for PTI. A probation officer prepared a report, in which she noted that defendant is a Colombian citizen "whose status in this country is presently 'withholding deportation.'" She attached to her report several documents defendant provided: a valid New Jersey driver's license, a valid Employment Authorization Card issued by the United States Department of Homeland Security that was imprinted with his thumbprint, and a Social Security card that bore the notation "valid for work only with DHS authorization."

The probation officer also reported that until recently, defendant had maintained "lawful, gainful" employment. Describing him as "cooperative," the probation officer pointed to defendant's enrollment in an outpatient drug and alcohol treatment program, and his "amenability to treatment, [which] bode well for the likelihood of success with PTI services." Finally, she noted that defendant had no known criminal record. She concluded her report by recommending that defendant be accepted into PTI.

Despite that recommendation, an assistant prosecutor rejected defendant's application. The prosecutor conceded that applicants who are charged with possession of CDS are "routinely placed into pretrial intervention." He nonetheless rejected defendant from PTI and explained that "the primary reason is [defendant's] status in this country." The prosecutor reasoned that:

[defendant] has chosen to commit a criminal act every day that he remains in this country illegally. This behavior is not indicative of an honest person who has engaged in an aberrant single episode of criminal activity. Rather it is indicative of a person who does not feel bound by the law when it is not consonant with his own desires.

The State provided two additional reasons for rejecting defendant from PTI: (1) the "outrageous" manner in which defendant operated his vehicle on the day in question; and (2) defendant was working "under the table."

After oral argument, the judge concluded that "there is virtually nothing here that would disqualify this defendant from . . . being admitted to pretrial intervention." In reaching that conclusion, the judge analyzed the three reasons advanced by the State.

As to the State's contention that defendant was working "under the table," the judge determined that there was no evidence to support such a conclusion. The judge pointed to defendant's Social Security and Department of Homeland Security cards, both of which authorized him to work "above the table" and thereby obligated him to pay applicable taxes. The judge observed that defendant had earned no income for several months preceding the PTI hearing, but defendant was living with his sister in a low "overhead scenario" and had no dependents, thereby enabling him, as he claimed, to live on his savings. The judge accordingly characterized the State's "working under the table" objection as speculative.

The judge likewise rejected the State's contention that defendant's "outrageous" operation of his car at the time he was in possession of CDS justified rejecting him from PTI. The judge agreed that defendant's reckless operation of his vehicle was unlawful, but rejected the argument that reckless driving should disqualify defendant from PTI. Although the judge did not elaborate, we discern from his remarks that the criminal conduct for which PTI was sought involved possession of CDS and did not encompass any motor vehicle-related crimes.

As to the State's argument that defendant is committing a crime every day he remains in this country illegally, the judge disagreed. He observed:

[I]t may very well be that there is more that this defendant could have done to secure legal permission to be and remain in this country. . . . But I do find that he has certainly and with relative dispatch upon his arrival here moved in that direction, and he has convinced at least three governmental entities, starting with the Immigration Court, the Social Security Administration and the Department of Homeland Security and one State agency, the Motor Vehicle Commission, that he is and should be, at least for the moment, permitted to remain and work.

The judge also noted that defendant's effort to obtain "legal presence in this country" began long before he was arrested on the instant offense, which "inures to the benefit of the defendant."

The judge determined that the prosecutor relied on defendant working "under the table" and driving recklessly in order to avoid the appearance of excluding defendant from PTI based solely on his immigration status. Ultimately, the judge concluded that the State's rejection of defendant from PTI was impermissibly "based wholly upon defendant's status as an illegal [immigrant]." The judge held that such a position ran afoul of State v. Liviaz, 389 N.J. Super. 401 (App. Div.), certif. denied, 190 N.J. 392 (2007), which permits a prosecutor to consider a defendant's status as an illegal immigrant along with other relevant factors, id. at 403, but prohibits the State from basing a denial solely on that factor. Id. at 406.

In his comprehensive oral opinion, Judge Batten analyzed the background of the defendant in Liviaz and in the companion case of State v. Benitez that was decided the same day as Liviaz. The judge observed that those two defendants' illegal immigration status was but one of many factors that justified the State's decision to reject them from PTI. In contrast, Judge Batten noted, "none of that is present here. None of it." Accordingly, he held that the rejection of defendant from PTI --when stripped of the two pretextual grounds -- was a per se exclusion based solely on defendant's immigration status. He accordingly determined that the prosecutor's rejection of defendant from PTI was a "patent and gross abuse of discretion" that must be overturned. On February 28, 2007, the judge entered a confirming order admitting defendant into PTI over the prosecutor's objection.


As we review the trial court's decision overturning the prosecutor's denial of PTI, we remain mindful that the initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Once a prosecutor refuses to consent to the diversion of a particular defendant, the prosecutor's decision is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993) (quoting DeMarco, supra, 107 N.J. at 566). As a result, the scope of a court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979). Thus, "judicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384). Accordingly, 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." Leonardis II, supra, 73 N.J. at 382. In Bender, the Court elaborated on the patent and gross abuse of discretion standard:

Ordinarily, an abuse of discretion will be manifest if defendant can show 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [Bender, supra, 80 N.J. at 93 (citation omitted).]

With these principles in mind, we review the judge's decision to overturn the prosecutor's rejection of defendant from PTI. We agree with the judge's conclusion that the State's claim of defendant working "under the table" was not supported by the evidence in the record. Accordingly, the State's reliance on this factor constituted a "clear error of judgment." See ibid.

We also agree with the judge's conclusion that the manner in which defendant operated his car was, in the circumstances of this particular case, an "irrelevant or inappropriate factor." See ibid. First, a prosecutor may not exclude a defendant from PTI enrollment based solely upon the nature of the offense, except in "appropriate circumstances" involving either a serious offense or criminal conduct specifically enumerated in Guideline 3(i) of Rule 3:28. Kraft, supra, 265 N.J. Super. at 115. Possession of CDS does not satisfy those criteria.

Second, the crime for which defendant sought enrollment in PTI was merely possession of CDS.*fn2 No motor vehicle crimes were charged. A comparison with State v. Moraes-Pena, 386 N.J. Super. 569 (App. Div.), certif. denied, 188 N.J. 492 (2006), is instructive. There, we reversed a trial judge's decision to overturn a prosecutor's denial of PTI. Id. at 582. In MoraesPena, the defendant was charged with third-degree assault by auto while intoxicated, N.J.S.A. 2C:12-1(c)(2), fourth-degree assault by auto involving leaving the scene of an accident, N.J.S.A. 2C:12-1.1, and five related motor vehicle offenses, including DWI, leaving the scene of an accident, and failure to report an accident. Id. at 571. The defendant in Moraes-Pena struck a pedestrian with his vehicle, causing a "concussion, a cut under [the pedestrian's] right eye requiring ten stitches to close, and a badly bruised and swollen left leg." Id. at 576. Additionally, when the defendant left the scene of the accident, he "left a victim lying in the street seriously injured." Id. at 572. Under those circumstances, we held that for the prosecutor "to have assigned as much weight to the gravity of the offense as [he] apparently did" was not a patent and gross abuse of discretion. Id. at 582.

Here, in contrast, defendant was charged with DWI, but no one was injured, defendant did not strike another vehicle or a pedestrian, defendant was not charged with any crimes other than possession of CDS, and he did not leave the scene. Accordingly, none of the factors that caused us to defer to the prosecutor's emphasis on the nature of the defense in Moraes-Pena are present here. Consequently, we agree with Judge Batten's determination that the prosecutor's reliance on the manner of this particular defendant's operation of his vehicle constitutes consideration of an "irrelevant or inappropriate" factor.

We further agree with Judge Batten's ultimate conclusion that once "working under the table" and defendant's "outrageous" operation of his auto are eliminated from consideration, the only remaining factor the State relied on to reject defendant from PTI was defendant's status as an illegal immigrant.*fn3 We concur in the judge's determination that this factor, standing alone, cannot legitimately serve as a basis for PTI rejection. This was especially so in light of the State's earlier concession that defendants who, like defendant, are charged with possession of CDS are ordinarily deemed suitable for PTI. As we held in Liviaz, the "use of a per se rule" to bar admission to PTI solely because an applicant is an illegal immigrant is "prohibited." Liviaz, supra, 389 N.J. Super. at 406.

In Liviaz, unlike here, we held that the assistant prosecutor had not applied a per se rule when she rejected Liviaz from PTI. Id. at 406-07. Instead, we observed that she properly "emphasized these points":

Defendant was not merely an alien, but had remained so for thirteen years; the length of his illegal presence and the particular crimes charged, as well as the additional crimes suggested by the contents of his car, indicated a lack of honesty and persistence in violating the law; his disregard of court orders, as reflected by the issuance of two bench warrants for failure to appear in these proceedings, shows a disdain for the law, in particular because he was a fugitive on the first warrant for over three years; and that disdain further suggests that he is unlikely to comply with PTI reporting requirements. [Id. at 407.]

We held that "[t]hose [were] all substantial reasons for denial of PTI." Ibid. None of those factors is present here.

We thus conclude that the State rejected defendant from PTI solely because of his immigration status, which is a result prohibited by Liviaz. Doing so constitutes a "clear error of judgment," see Bender, supra, 80 N.J. at 93, and a patent and gross abuse of discretion that a reviewing court is obliged to overturn. State v. Wallace, 146 N.J. 576, 582-83 (1996). Judge Batten was correct when he so concluded.


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