On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-0446.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012 -
Before Judges Ashrafi and Fasciale.
The State appeals pursuant to Rule 3:28(f) from an order of the Law Division admitting defendant Hugo Rivera to the pretrial intervention program (PTI) over the contrary recommendation of the PTI Director and the objection of the Hudson County Prosecutor's Office. We reverse and remand to the Law Division for reconsideration.
On January 10, 2011, defendant was driving a car without a valid license when he struck and seriously injured a pedestrian in Union City. According to the accident reconstruction report and related documentation prepared by the State, the pedestrian was crossing Paterson Plank Road near New York Avenue at about 6:00 p.m. The location was not well-lit, and the pedestrian was wearing dark clothing. She was crossing at an unmarked point of the roadway because the nearest marked cross-walk was blocked by snow and ice. She stopped halfway across the road when she saw a car approaching.
Defendant was driving from the other direction to his home in Union City with his wife and seventeen-year-old daughter. None of the occupants of defendant's car had a valid driver's license. The car was registered to another person with the same last name as defendant, but the relationship is not revealed in the record. According to the police report, defendant's license had an expiration date of July 1992. According to the accident reconstruction report, defendant's license was suspended in 1990 and had never been restored.
In the dark, defendant did not see the pedestrian in the roadway until it was too late to stop. His car struck her, and she was thrown more than forty feet and landed on the pavement. She suffered fractures of her sacrum, pelvis, and leg and was confined to a wheelchair for several months after the accident.
There is no evidence that defendant was driving recklessly. The accident reconstruction expert estimated defendant's speed at between twenty-five and thirty miles per hour. The expert blamed the dark conditions and the pedestrian's unexpected presence for the collision.
Defendant stopped his car immediately and attempted to assist the victim. He was distraught and remorseful and cooperative with the responding police officer. He told the officer he was driving home and simply did not see the pedestrian. He also told the officer that his license was suspended. The police issued no traffic tickets to defendant except for driving without a license in violation of N.J.S.A. 39:3-40.
A grand jury indicted defendant for the fourth-degree crime of causing serious injury in a motor vehicle accident while driving without a valid license. N.J.S.A. 2C:40-22b. Defendant applied for admission to PTI. N.J.S.A. 2C:43-12e; R. 3:28. The Criminal Division Manager, as PTI Director, recommended against defendant's admission to the program on the ground that he had two prior convictions in municipal court resulting in fines and that the present charge involved serious injuries. The PTI Director's written recommendation also mentioned that the victim did not have sufficient medical insurance or personal funds to pay her medical bills. In a one-sentence concurrence, the prosecutor agreed with the PTI Director's unfavorable recommendation.
Defendant appealed to the Law Division pursuant to Rule 3:28(h). The court heard argument from the attorneys and by oral decision granted defendant's application to be admitted to the PTI program. The court stayed its decision pending the State's appeal before us.
The State argues on appeal that the Law Division did not apply the correct standard of review from the PTI Director's and the prosecutor's rejection of defendant, and that the court substituted its judgment for that of the officials in charge of admission to the PTI program. Defendant responds that the prosecutor failed to consider relevant factors and did not make an independent determination of defendant's amenability to PTI supervision. He argues that the Law Division acted within its appropriate authority in overruling defendant's rejection from the program.
Admission to the PTI program is based on a favorable recommendation from the PTI Director and the consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In determining whether to recommend or consent to admission, the PTI Director and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-12e. The statutory list is not exhaustive, and additional relevant factors may ...