On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-03-0159.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011
Before Judges Lihotz, Waugh and St. John.
The State appeals from an order enrolling defendant, R.R., into the Pretrial Intervention Program (PTI) in Cape May County over the prosecutor's objection in a case involving an indictable charge of third-degree assault by auto while intoxicated, contrary to N.J.S.A. 2C:12-1(c)(2). The State argues that the motion judge erred by ordering defendant's admission into PTI over the prosecutor's objection. We agree and reverse.
The evidence reflects that, at approximately 2:30 a.m. on May 25, 2009, R.R. was operating his vehicle in North Wildwood when he struck B.P.,*fn1 a pedestrian crossing in a marked crosswalk. When R.R. hit B.P., who was a minor, she "rolled up onto the hood [of his automobile,] striking her head on the windscreen . . . [and was] then launched into the air by the force of [the vehicle,] . . . landing on the other side of the intersection from the [point of] initial impact." B.P.'s injuries required an emergency airlift to a nearby hospital.
R.R. approximated his speed at thirty miles per hour, which was corroborated by witness and accident reconstruction reports. R.R.'s cellular phone history verified he was not on the phone at the time of the incident. He claims his attention was on the road and was not distracted. He asserts he did not "remember seeing a thing, and that all he heard was a thud and remembered that he saw his windshield was shattered." The only witness confirms R.R.'s vehicle "was traveling at a constant rate of speed," without swerving or changing direction at any time until after the collision.
At the scene, police administered a field sobriety test, which R.R. passed. R.R. then consented to providing blood and urine samples for testing. Subsequently, police transported R.R. to police headquarters where he waived his Miranda*fn2 rights and gave a statement.
R.R. explained he had worked from 9:30 a.m. to around 11:00 p.m. that evening and had one beer with a co-worker before going home. R.R. stopped at home, then went to a local bar to meet friends, where he had two more beers. R.R. told his friends he was feeling tired and left the bar. The collision occurred on R.R.'s drive home.
Testing revealed R.R. had a blood alcohol content of .124%. Upon receipt of the positive results, police issued three summonses, charging R.R. with driving while intoxicated, N.J.S.A. 39:4-50; failure to yield to a pedestrian, N.J.S.A. 39:4-35; and reckless driving, N.J.S.A. 39:4-96.
B.P. survived the collision, but her injuries required numerous surgeries and medical procedures. Testing showed B.P. was also under the influence of alcohol (.138% BAC) and benzodiazepines at the time she was struck. B.P. has no recollection of the accident or the events that took place prior to or leading up to it. She continues to suffer permanent deficits in terms of memory and cognition.
On March 16, 2010, a Cape May County Grand Jury returned Indictment No. 10-03-0159, charging R.R. with third-degree assault by auto under N.J.S.A. 2C:12-1(c)(2). R.R. entered a plea of not guilty, and filed an application for entry into Cape May County's PTI program.
In a report dated May 18, 2010, Kim Marchelle, the PTI coordinator, supported R.R.'s application and recommended his diversion into the PTI program. Her report explained R.R. was a high school graduate with an associate's degree in hospitality management, who was employed as a server at a local restaurant, and a mail carrier for the United States Postal Service. She noted "[R.R.] expressed the emotional torment this has caused him as well as the remorse he feels. He was very cooperative, submitting requested documentation in a timely manner."
Marchelle then referred to B.P.'s blood results which were positive for drugs and alcohol. She noted the victim crossed the street "within 3.8 feet" of R.R.'s vehicle so that even had "[R.R.] seen the victim, he most likely would not have had enough time to stop." She continued to note the scene had "insufficient lighting with a street light at that intersection unoperational [sic]" and faded crosswalks which are "difficult for drivers to see."
Marchelle also referred to R.R.'s two prior municipal offenses for operating a personal watercraft without a safety certificate in his possession, N.J.S.A. 12:7-61(d), and underage drinking, Wildwood City, Gen. Ordinance 5-8.1. She concluded R.R.'s "minimal criminal history, cooperation with [her,] and the circumstances of the incident" justified diversion to PTI. Marchelle recommended enrollment in PTI for twenty-four months, plus a fee of $50 for enrollment and a $75 Safe Neighborhood Assessment fee.
The prosecutor objected to R.R.'s diversion into PTI in a letter dated May 20, 2010. The prosecutor characterized R.R.'s offense as "a violent crime . . . less appropriate for diversion than a non-violent crime." After discussing the seriousness of B.P.'s injuries, the prosecutor disputed portions of Marchelle's recommendation, including her reliance on B.P.'s intoxication, the characterization of the lighting as "insufficient," and the statement that R.R. could not have stopped his vehicle in time to avoid the collision. Under the heading "motivation and age of the defendant," the prosecutor noted R.R. was twenty-six at the time of the incident and, therefore, "should have known that operating a motor vehicle under the influence can cause serious injuries and deaths." Moreover, the prosecutor asserted R.R. was not remorseful, and that the victim did not approve of R.R.'s diversion.
After again stating the seriousness of B.P's injuries, the prosecutor explained: it is not in the best interest of society as a whole to allow [R.R.] to avoid any punishment for his crime. People who selfishly decide to operate a motor vehicle under the influence . . . must recognize that it is better that they endure the minor inconvenience of calling a cab or a friend than for someone to be seriously injured or die as a result of their callous attitudes.
Further, the letter explained diversion would "exacerbate the problem of drinking and driving[,]" and "send the message that you can operate a motor vehicle under the influence, . . . [cause injuries,] and then somehow get the ensuing charges dismissed and pretend as if you never did anything ...