On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-03-0507.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
This is an appeal from the denial of an application for admission into the pretrial intervention (PTI) program.
Defendant was indicted for assault by auto, in violation of N.J.S.A. 2C:12-1(c)(2), based on his operation of a motor vehicle while highly intoxicated, which resulted in catastrophic injuries to the occupants of another car with which defendant's car collided.
Defendant applied for admission into PTI. By letter dated May 26, 2010, the PTI Director for Ocean County denied defendant's application. This letter noted that while driving in a highly intoxicated condition, defendant had lost control of his car, crossed the center lane, started "fish tailing," and then crashed head-on into a car traveling in the opposite direction on Route 530, a two-lane highway. The occupants of the other car suffered catastrophic injuries, but survived. The letter also noted that a test of defendant's blood specimen resulted in a B.A.C. level of .179%. The police officers investigating the collision found six empty seven-ounce beer bottles in the passenger compartment of defendant's car and another six empty seven-ounce beer bottles in the trunk. Based on these facts, the PTI Director concluded:
. . . The present offense was committed recklessly and without regard for the lives of other human beings. . . . [A] motor vehicle easily becomes a lethal weapon in the hands of an incapacitated or otherwise irresponsible individual. The safety of our roadways and the immediate surrounding areas relies on the expectation that those who operate a motor vehicle do so responsibly. Accepting your application for the Pre-Trial Intervention Program would devalue the seriousness of your actions and send the wrong message to others who have committed similar offenses.
The PTI Director cited the "nature of the offense," N.J.S.A. 2C:43-12(e)(1), the "facts of the case," N.J.S.A. 2C:43-12(e)(2), the "needs and interest of the victim[s] and society," N.J.S.A. 2C:43-12(e)(7), the "assaultive or violent" nature of the offense and its serious "injurious consequences" to the victims, N.J.S.A. 2C:43-12(e)(10), that the "value of supervisory treatment" of defendant was "outweighed by the public need for prosecution," N.J.S.A. 2C:43-12(e)(14), and that "the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling [defendant] into a supervisory treatment program," N.J.S.A. 2C:43-12(e)(17), as statutory criteria supporting the denial of defendant's application.
The Ocean County Prosecutor concurred with the PTI Director's determination that defendant's application should be denied. The assistant prosecutor assigned responsibility for these matters not only adopted the PTI Director's reasons for denial of defendant's application but also submitted a six-page letter summarizing the prosecutor's reasons for concurring with the PTI Director.
Defendant appealed this denial to the Law Division. The trial court remanded the matter to the prosecutor by a letter dated July 19, 2010, which stated:
This court finds that Mr. Gardner is a candidate who is amenable to rehabilitation through the PTI program. Although the court understands the State's position based on the objection of the victims to the defendant's admission into the PTI program, the seriousness of the injuries sustained, and Mr. Gardner's blood alcohol content, the court would like to inquire whether Mr. Gardner has a prior criminal record and prior motor vehicle violations.
The assistant prosecutor responsible for handling PTI applications responded by a letter dated July 22, 2010, which stated:
To answer the questions raised in the Court's letter, the defendant does not have a prior criminal record and the defendant has no ...