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State of New Jersey v. Hugo Rivera


June 7, 2012


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-03-0446.

Per curiam.


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 also be considered. State v. Negran, 178 N.J. 73, 84 (2003); State v. Brooks, 175 N.J. 215, 226-27 (2002).

The scope of judicial review of the prosecutor's decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding whom to divert into the PTI program and whom to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to the prosecutor's decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).

Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "'clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion.'" State v. Wallace, 146 N.J. 576, 582 (1996) (quoting Leonardis, supra, 73 N.J. at 382); accord Baynes, supra, 148 N.J. at 444.

In State v. Bender, 80 N.J. 84, 93 (1979), the Supreme Court set forth the standard of review in greater detail:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a 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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [(Citation omitted).]

In this case, the Law Division gave the following reasons for overruling the prosecutor's decision: (1) admission of defendant into PTI would help relieve the overburdened criminal docket; (2) defendant's municipal court convictions were very remote in time, having occurred thirty-four and twenty-six years before the current offense; (3) defendant had led a law-abiding life since then, and his conduct in this case did not reflect a pattern of anti-social behavior; (4) the prosecutor failed to consider relevant factors, such as defendant's willingness to pay restitution to the victim; (5) PTI supervision would adequately sanction defendant's offense and deter him from criminal conduct; and (6) the State inappropriately emphasized the nature of the injuries to the victim rather than the nature of defendant's offending conduct. As to the last stated reason, the court accepted defense counsel's representation that the license suspension may have resulted from failure to pay a surcharge or perhaps a parking ticket, and the court characterized defendant's driving while his license was suspended as "a paperwork violation" that did not rise to the level of a criminal offense disqualifying him from participation in PTI. Assessing all of these reasons, the court was clearly convinced by defendant's arguments that his rejection was a patent and gross abuse of prosecutorial discretion.

The prosecutor did not provide an independent statement of reasons for rejecting defendant's application. See Wallace, supra, 146 N.J. at 584; Nwobu, supra, 139 N.J. at 248-49. As it was permitted to do, the prosecutor adopted the PTI Director's statement, Nwobu, supra, 139 N.J. at 250, and was thus bound to the same reasons for rejection. Although the PTI Director's statement made reference to only two of the listed statutory criteria, N.J.S.A. 2C:43-12e(3), -12e(5), it also described factual circumstances that the prosecutor could take into consideration in rejecting the application.

We agree with the Law Division that the PTI Director and the prosecutor could not justifiably rely on defendant's municipal court convictions from more than twenty-six years earlier as reflecting poor character of defendant at the time of this offense, and thus, weighing against PTI under N.J.S.A. 2C:43-12e(5). Furthermore, we agree that the age and motivation of defendant, N.J.S.A. 2C:43-12e(3), could only favor defendant's application in this case. Fifty-four years old at the time of the offense, he had not been involved in the criminal justice system for most of his adult life, and his actions at the scene of the accident indicated no improper motivation or other volitional act that caused the accident and injuries.

We disagree with the Law Division, however, that the prosecutor improperly took into consideration the nature of the victim's injuries. In considering the nature of the offense under N.J.S.A. 2C:43-12e(1), the prosecutor could consider the seriousness of the injuries defendant caused the victim. Cf. N.J.S.A. 2C:43-12e(10) ("Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior" (emphasis added)).

Also, we are puzzled that neither the prosecutor nor the court made any mention of the length of time that defendant's driving privileges had been suspended. Although a driving abstract was available to the parties, no one made reference to when defendant's driving privileges were suspended. The accident reconstruction report states that defendant's license was suspended in 1990 and never restored, more than twenty years before the accident. The police report seems to corroborate that time frame with a reference to a 1992 expiration date of defendant's license. Because our record does not include the driver's abstract, and because the court made no finding as to the length of time that defendant's driving privileges had been suspended, we do not know whether the suspension actually occurred in 1990 and defendant's license was never restored after that date.

If in fact defendant was driving without a valid license for more than twenty years, that circumstance might be relevant to his admission to the PTI program. The record seems to indicate that, on the date of the accident, he was routinely driving home in a car registered to someone else and with two family members who were themselves unlicensed. If his conduct on the evening of the accident was typical of his daily activities, the record suggests that defendant's unlawful driving was not an isolated violation of the law. If defendant was repeatedly violating the law by driving without a valid license for some twenty years, the prosecutor and the court could take that circumstance into consideration in deciding whether defendant had exhibited a pattern of anti-social behavior in disregarding the traffic laws of this State. That unlawful conduct goes beyond a mere "paperwork violation," as described by the trial court.

A continuing pattern of anti-social behavior is a factor that can be considered on a PTI application, N.J.S.A. 2C:43-12e(8), although traffic violations may be relevant to antisocial behavior only when they are repetitive and not "too temporally distant" or unrelated to the present offense, Negran, supra, 178 N.J. at 84-85.

Because we discern inadequate consideration of the nature of the offense, in the sense of both the seriousness of defendant's violation and the seriousness of the victim's injuries, we reverse the Law Division's order admitting defendant to PTI and remand for reconsideration. We do not suggest the outcome on remand but direct the court to determine the circumstances of defendant's unlawful driving on the evening of the accident and to consider the seriousness of the victim's injuries.

Reversed and remanded. We do not retain jurisdiction.


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