April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JAIRO ABARCA, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, defendant possessed a bag of cocaine and was possibly under the influence of that narcotic as well, resulting in the careless driving that led to him hitting a total of four parked vehicles.
In this case, the nature of the offense and the facts of the case were not the sole basis for defendant's rejection. The State also took into consideration the fact that defendant is currently in this country illegally and is currently subject to removal proceedings. While illegal status alone cannot form the basis for rejection, it is an appropriate factor to consider in conjunction with those mentioned above. See State v. Liviaz, 389 N.J. Super. 401 (App. Div. 2007).
Finally, although prosecutors are required to consider statutory criteria, they are also encouraged to consider other relevant factors when assessing a defendant's application for PTI. "Such other relevant factors would include the applicant's efforts to seek help for a disorder and the applicant's [progress] in such program or therapy. Those considerations bear directly on the applicant's suitability to respond to short[-]term rehabilitation while subject to PTI supervision." State v. Negran, 178 N.J. 73, 85 (2003).
Here, defendant obviously has a problem with alcohol and narcotics abuse. Thus far he has not shown any motivation to address this very serious issue. He makes [no] mention in his brief of any substance abuse program he is currently in or has completed. Additionally, although he claims he is making efforts to correct his illegal status in this country, he has submitted no proof of those efforts.
In granting defendant's application for admission into the PTI program, the court relied primarily on State v. Liviaz, 389 N.J. Super. 401 (App. Div.), certif. denied, 190 N.J. 392 (2007):
[T]he defendant is... illegally here. No prior warrants, no prior bench warrants, no prior arrests, no prior record. Apparently also charged with driving while intoxicated. Certainly the State's entitled under State versus Brooks[, 175 N.J. 215 (2002),] to review the arrest record of an individual in order to make the evaluation. That would include motor vehicle offenses. This one is not yet resolved. It is still an open pending case.... Certainly in any other case simple possession of [a] controlled substance would not warrant denial of access to the PTI program. It appears that the other factor that the State is pointing to is that he has a driving while intoxicated charge but it's never been resolved. It is still an open case.
I do find given the circumstances in this matter, since there are no other similar activities as pointed out in Liv[iaz], that in this case the failure to admit [defendant] into [the] program is a patent and gross abuse of discretion and I'll grant access to the program and ask the defense to prepare an Order. However, the State is entitled to appeal that and so there is a stay pending the appeal.
In Liviaz, we concluded "that PTI may not be denied solely because a defendant is an illegal alien." Liviaz, supra, 389 N.J. Super. at 403. Nevertheless, we held that the prosecutor did not improperly deny defendant's PTI "because we [were] satisfied that it can be a relevant factor and that... the prosecutor reasonably took it into account in addition to other relevant factors, reaching conclusions that were well within his discretion." Ibid. Similarly, the prosecutor found in the present matter that several factors weighed against defendant's enrollment in PTI. As the prosecutor noted, "[d]efendant's possession of cocaine and drug paraphernalia, combined with his related charge of DWI with a BAC of over twice the legal limit, driving an unregistered car, and crashing into four cars demonstrates a complete disregard for the lives of the citizens of New Jersey." Moreover, defendant "continues to commit an offense each and every day by illegally remaining in this country," and PTI "cannot be expected to truly deter and rehabilitate someone who continues to offend while under its supervision." Accordingly, based on an examination of the factors outlined in N.J.S.A. 2C:43-12(e)(1),(2), and (3), the prosecutor concluded that "the value of supervisory treatment would be outweighed by the public need for prosecution." N.J.S.A. 2C:43-12(e)(14).
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).
Guided by these principles, we are satisfied the prosecutor's decision did not result from a per se denial of defendant's application based solely upon his immigration status; the decision was consistent with the legislative standards and the guidelines for PTI enrollment promulgated by the Court; and it did not constitute a patent and gross abuse of discretion, or a clear error in judgment. Consequently, the order admitting defendant into PTI is reversed.
Reversed and remanded for further proceedings consistent with this opinion.
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