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State v. Dowd

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN DOWD, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-01231.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 17, 2010

Before Judges Graves and J.N. Harris.

On September 11, 2007, defendant Brian Dowd was charged with second-degree eluding in violation of N.J.S.A. 2C:29-2(b). Defendant was also issued three traffic summonses for: (1) driving with a suspended license; (2) driving without insurance; and (3) reckless driving. Defendant applied for admission to the pretrial intervention program (PTI), and Essex County Criminal Case Management recommended he be admitted into PTI. However, the Essex County Prosecutor's Office rejected defendant's PTI application. Defendant appealed to the Law Division but his request to be admitted into the program was denied.

On June 20, 2008, defendant entered a conditional plea pursuant to Rule 3:9-3(f), reserving his right to appeal the order denying his admission into PTI. In exchange for the plea, the State agreed to recommend a period of non-custodial probation. On September 29, 2008, in accordance with the plea agreement, the court imposed a two-year term of probation.

On appeal to this court, defendant argues:

POINT I

THE MOTION JUDGE ERRED BY RUBBER-STAMP[ING] THE PROSECUTOR'S DECISION TO REJECT THE DEFENDANT'S REQUEST FOR PTI EVEN THOUGH THE PROSECUTOR COMMITTED [A] GROSS ABUSE OF DISCRETION IN FAILING TO CONSIDER IMPORTANT RELEVANT FACTORS THAT SUPPORTED DEFENDANT'S ADMISSION INTO PTI.

POINT II

THE SENTENCE IMPOSED PURSUANT TO DEFENDANT'S CONVICTION OF ELUDING WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

Based on our review of the record, the briefs, and the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.

Because of "the close relationship of the PTI program to the prosecutor's charging authority, courts allow prosecutors wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003). Judicial review exists "to check only the most egregious examples of injustice and unfairness." State v. Leonardis, 73 N.J. 360, 384 (1977). "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 before a court can suspend criminal proceedings under Rule 3:28 without prosecutorial consent." Negran, supra, 178 N.J. at 82 (internal quotations omitted).

To demonstrate a patent and gross abuse of discretion, a defendant must demonstrate the "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). In addition, a defendant must show "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.

In the present matter, the trial court thoroughly reviewed the facts of the case in a comprehensive seven-page written decision. The court found that the prosecutor's office properly "considered all relevant factors in making its decision"; it "did not consider any inappropriate factors"; and "the prosecutor did not commit a clear error of judgment" in rejecting defendant's PTI application. In our view, the matter was correctly decided, and we affirm the order denying defendant's PTI appeal substantially for the reasons stated by Judge Sivilli in her written decision on June 30, 2008.

Defendant also contends his sentence should "be modified to no more [than] one year of probation." As a reviewing court, we may modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case.

Affirmed.

20100421

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