July 16, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
VIJAY CHAUHAN, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-05-1145C.
James P. McClain, Acting Atlantic County Prosecutor, attorney for appellant (Courtney M. Cittadini, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Respondent has not filed a brief.
Before Judges Axelrad and Fuentes.
The State appeals from an order granting defendant, Vijay Chauhan, entry into the Atlantic County Pre-Trial Intervention (PTI) Program over its objection. We reverse.
On November 18, 2011, the Egg Harbor Township police conducted a motor vehicle stop on defendant's vehicle after a random license plate inquiry revealed a possible National Crime Information Center hit. After the vehicle came to a stop, the officer observed the male driver quickly jump into the back seat of the car and the front seat passenger then moved across into the driver's seat. The male driver then jumped into the passenger seat. The driver was identified as defendant, who had a suspended license following a conviction for driving while under the influence (DWI), and was issued a summons. The defendant had twice been convicted of DWI, on September 5, 2007, and February 2, 2010. Defendant admitted to being in the driver's seat but alleged that he was driving because his wife was tired and he believed it was unsafe for her to drive.
On May 16, 2012, defendant was indicted for fourth-degree operating a motor vehicle while his driver's license was suspended based on a second violation of N.J.S.A. 39:4-50 (DWI), N.J.S.A. 2C:40-26(b). On June 4, 2012, defendant pled not guilty and applied for participation in the PTI program. Despite a favorable recommendation by the Atlantic County Criminal Division Manager, the Atlantic County Prosecutor's Office rejected defendant's application for enrollment into the program. By letter of September 21, 2012, the assistant prosecutor explained that upon consideration of the relevant factors enumerated in N.J.S.A. 2C:43-12(e), in line with Rule 3:28, several factors militated against defendant's admission into PTI, namely: #1, the nature of the offense; #2, the facts of the case; #14, whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution; and #17, whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory program. Each factor weighing against admission was followed by a short factual analysis.
Defendant filed a motion appealing the rejection. Following oral argument, the court issued a written opinion and order dated February 4, 2013, granting defendant's motion to compel PTI. The State appealed. On appeal, the State urges the trial court erred in admitting defendant into PTI over its objection. It further disputes defendant's claim that the Atlantic County Prosecutor's Office has a per se policy of denying PTI admission to individuals charged with N.J.S.A. 2C:40-26. Based on our review of the record and applicable law, we are persuaded by the State's arguments.
The initial decision to accept or reject a defendant's PTI application lies with the prosecutor. State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977). Once a prosecutor refuses to consent to the diversion of a particular defendant, that determination is to be afforded considerable deference. State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" State v. Kraft, 265 N.J.Super. 106, 111 (1993) (citing DeMarco, supra, 107 N.J. at 566). As a result, the scope of a trial court's review of a prosecutor's decision to reject a defendant's application is severely limited. State v. Bender, 80 N.J. 84, 89 (1979).
The court's "scrutiny is limited to reviewing the reasons given by the prosecutor for his or her decision." DeMarco, supra, 107 N.J. at 566-67. "It is not sufficient to reverse that [the court] find[s] a decision to be harsh. For a court to reverse a prosecutor's decision, the defendant must '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.'" Id. at 567 (quoting Leonardis II, supra, 73 N.J. at 382). Thus, "[j]udicial review is 'available to check only the most egregious examples of injustice and unfairness.'" DeMarco, supra, 107 N.J. at 566 (quoting Leonardis II, supra, 73 N.J. at 384).
A defendant may overcome a prosecutorial veto if it can be proved the rejection "(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." Bender, supra, 80 N.J. at 93. In order for such an abuse of discretion to be deemed "'patent and gross, ' it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid.
In reviewing defendant's PTI application, the State considered that this was defendant's first indictable offense, he was employed, attended college, and was remorseful. Nevertheless, the prosecutor was particularly concerned that despite receiving prior sanctions and license suspensions, he still continued to drive. Moreover, based on the nature of the offense and the policy considerations expressed by the Legislature in establishing this relatively new indictable offense with a mandatory period of incarceration, the State concluded there was "a great need to deter this defendant from future misconduct by formal criminal prosecution."
Guideline 3, promulgated under Rule 3:28, mandates that "consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e), " which include "the nature of the offense." In finding the nature of the offense weighed against admission into PTI, the prosecutor, in her rejection letter, further explained:
The Legislature has determined to impose a mandatory sentence of 180 days incarceration with no parole eligibility for 180 days for those in violation of this statute [N.J.S.A. 2C:40-26]. The decision by the Legislature to impose a mandatory period of incarceration with no parole eligibility is clearly intended to deter such conduct. The strong need to deter would be undermined if one charged with this misconduct were permitted to escape criminal prosecution through an essentially sanctionless diversionary program.
Guided by these considerations, we are satisfied the trial court's conclusions regarding the State's articulated reasons for rejecting defendant's admission into PTI are simply not supported by the record. Rather, the court's conclusions reflect substitution of its own judgment over that of the prosecutor. Contrary to the court's assertion, the prosecutor did not give short shrift to the personal facts of defendant's case, such as his admission of wrongdoing, being a college student, and this being his first indictable offense. Nor did the prosecutor's office arbitrarily reject defendant into the program based on a per se rule or place improper, undue weight on the perceived legislative intent of deterrence based on the mandatory incarceration of the offense with which defendant was indicted.
Rather, the prosecutor considered the appropriate factors, taking into consideration his particular facts, and identifying with particularity the basis for defendant's rejection into PTI. With two DWI convictions, defendant chose to operate a motor vehicle during a period of his license suspension. As we made clear in State v. Carrigan, 428 N.J.Super. 609, 613-14 (App. Div. 2012), certif. denied, N.J. (2013), the public need for prosecution for violations of N.J.S.A. 2C:40-26 by a mandatory 180 days of incarceration without parole has been prompted "by reports of fatal or serious accidents that had been caused by recidivist offenders with multiple prior DWI violations, who nevertheless were driving with a suspended license." Then to compound his disregard of the law, after being pulled over, defendant attempted to evade prosecution by switching seats with his passenger. Under these circumstances, we discern no patent and gross abuse of discretion by the prosecution in denying defendant's admission into PTI.