On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-01-0054.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Graves and Sabatino.
The State appeals from the April 24, 2009 order of the Law Division admitting defendant Jairo Abarca into the Somerset County Pretrial Intervention Program (PTI), over the objection of the PTI director and the County Prosecutor. The trial court stayed its order pending appeal. On appeal, the State argues that its decision to reject defendant's PTI application was not a patent and gross abuse of discretion, and the trial court erred in substituting its decision for that of the prosecutor. We agree and reverse.
On November 22, 2008, at approximately 2:20 a.m., officers from the North Plainfield Police Department responded to a report of a vehicle striking parked cars at 401 Route 22 West. Upon arrival, Officer Christopher Bond observed another officer speaking with defendant, who was driving a Ford Explorer that had "sideswiped" three or four parked vehicles. While speaking with defendant, Bond observed his eyes were bloodshot and watery, and Bond detected a strong odor of an alcoholic beverage on defendant's breath. When asked if he had been drinking, defendant replied, "I had two beers."
Officer Bond then asked defendant to perform some field sobriety tests, which defendant was unable to satisfactorily complete. Defendant was placed under arrest for driving while intoxicated (DWI) and transported to police headquarters, where he was asked to empty his pockets. Defendant removed several items from his pocket, including a small plastic baggie containing a white powdery substance, which Bond believed to be a controlled dangerous substance. Bond tested the powder with a field testing kit, and it tested positive for cocaine. Officer Bond then administered the Alcotest 7110 to defendant, and he gave two breath samples. Each test resulted in a blood alcohol concentration reading of 0.18 percent.
Defendant was charged with DWI, in violation of N.J.S.A. 39:4-50; careless driving, in violation of N.J.S.A. 39:4-97; operating an unregistered vehicle, in violation of N.J.S.A. 39:3-4; third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10(a)(1); and possession of drug paraphernalia, in violation of N.J.S.A. 2C:36-2, a disorderly persons offense. After the New Jersey State Police Forensic Laboratory confirmed that the substance in the small plastic baggie was cocaine, defendant was indicted for third-degree possession of cocaine.
Defendant applied for PTI in January 2009. The program director gave the following reasons for rejecting defendant's application:
The nature of the offense, N.J.S.A. 2C:43-12e(1). Police reports indicate you were operating a motor vehicle while under the influence of alcohol/drugs and crashed into four parked vehicles. Your blood alcohol reading was 0.18%. A check with I.C.E. [U.S. Immigration and Customs Enforcement] revealed you are not legally in the United States and subject to removal proceedings. As such your involvement in the present offense, while here illegally is [indicative] that PTI would not serve as sufficient sanction to deter you from future criminal conduct.
The prosecutor's office agreed that defendant's application should be denied.
In a brief in support of his appeal to the Law Division, defendant claimed he "entered the United States legitimately" and was "in the process of becoming a permanent resident." He also stated he was "an ideal candidate for the program" because he "has been in the United States for thirteen years and this charge currently represents his first."
In response to defendant's appeal to the Law Division, the prosecutor's office argued it "considered all relevant and appropriate factors" and concluded that defendant was not an acceptable candidate for PTI:
Pursuant to N.J.S.A. 2C:43-12e, the State shall review several criteria when assessing a defendant's application for PTI. The factors relevant to this case that the State properly considered are the nature of the offense, the facts of the case, and the motivation of defendant. The facts of this case are that defendant drove his unregistered motor vehicle while under the influence of alcohol and possibly cocaine as well. Defendant drove carelessly, striking four parked vehicles. Luckily, no one was in those vehicles and no one was injured. When the police arrived, defendant claimed to have consumed only two beers. However, the Alcotest revealed a BAC of 0.18%, more than twice the legal limit. Additionally, ...