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State v. Grave

Superior Court of New Jersey, Appellate Division

November 26, 2013

STATE OF NEW JERSEY, Plaintiff-Appellant,
SARA GRAVE, Defendant-Respondent.


Submitted November 20, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-11-1958.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant (Tracey A. Agnew, Special Attorney General/Acting Assistant Prosecutor, on the brief).

Koles, Burke & Bustillo, LLP, attorneys for respondent (Raoul Bustillo, on the brief).

Before Judges Lihotz and Hoffman.


The State appeals from an order of the Law Division directing defendant's admittance into the Hudson County Pretrial Intervention Program (PTI) over the prosecutor's objection. Defendant was indicted for third-degree operating a motor vehicle during a period of license suspension resulting in the death of another person, N.J.S.A. 2C:40-22(a). The judge found that the Hudson County Prosecutor failed to properly consider and weigh all of the statutory factors bearing upon admission to PTI. For the reasons that follow, we affirm.


On the evening of May 5, 2012, while parallel parking her car, defendant struck an elderly woman, Ann Walsh, who was wearing dark clothing and crossing the street mid-block. The impact caused Walsh to fall and strike her head on the ground; she died the next day as a result of her head injury. The police concluded defendant committed no moving violation. However, at the time of the accident, defendant was on the revoked list for failure to pay an insurance surcharge.

Defendant applied for admission into PTI. The criminal division manager found defendant was inappropriate for PTI and rejected her application; the Prosecutor subsequently concurred with the decision. Defendant appealed her denial to the Law Division, where the Prosecutor provided four reasons for denying defendant admission into the PTI program: the nature of the offense, the facts of the case, the needs and interests of the victim and society, and whether or not the crime is of an assaultive or violent nature.

After briefing and argument, on May 28, 2 013 Judge Joseph V. Isabella entered an order accompanied by a written opinion in which he granted defendant's appeal and approved her entry to PTI over the Prosecutor's objection. Considering all relevant factors, particularly defendant's amenability for rehabilitation, the judge found that the prosecutor's refusal to admit defendant to PTI was a "patent and gross" abuse of discretion.

The State appeals the trial court's order and presents the following arguments:


We are not persuaded by either of these arguments and therefore affirm, substantially for the reasons expressed in Judge Isabella's cogent written opinion.


The PTI statute requires that an applicant's admission into the program "shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). It also requires that "[t]he decision and reasons therefor made by . . . judges . . ., prosecutors and program directors in granting or denying applications for supervisory treatment ... in all cases shall be reduced to writing and disclosed to the applicant." N.J.S.A. 2C:43-12(c). Furthermore,

[e]ach applicant for supervisory treatment shall be entitled to full and fair consideration of his [or her] application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial.
N.J.S.A. 2C:43-12(f).]

A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law. State v. Nwobu, 139 N.J. 236, 247 (1995). Thus, we review the judge's decision de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). We apply the same standard of review that the trial judge was required to apply to analyze the prosecutor's determination. See Antheunisse v. Tiffany & Co., 229 N.J.Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989).

The standard of review applicable to the prosecutor's determination of admission into PTI is highly deferential:

Throughout the [PTI] program's history, the courts have remained sensitive to the fact that diversion is a quintessentially prosecutorial function. ... It is fairly understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI.
The prosecutor's discretion is not unbridled, however. If a 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, " a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. . . . A "patent and gross abuse of discretion" is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." In State v. Bender, 80 N.J. 84 (1979), we elaborated on the patent and gross abuse of discretion standard:
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.
State v. Wallace, 146 N.J. 576, 582-83 (1996) (internal citations omitted).]

Several different principles guide prosecutors in determining whether a defendant qualifies for PTI. State v. Hoffman, 399 N.J.Super. 207, 215 (App. Div. 2008). N.J.S.A. 2C:43-12(e) lists seventeen factors that prosecutors "shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program." In addition to N.J.S.A. 2C:43-12e, Rule 3:28 provides eight "Guidelines, " which prosecutors shall consider in determining whether PTI is appropriate. For example, Guideline 3(i) states "the nature of the offense is a factor to be considered in reviewing the application[, ]" and individuals who engage in crimes "deliberately committed with violence or threat of violence against another person . . . should generally be rejected." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1126 (2013).

While the Guidelines do offer "somewhat greater" prosecutorial discretion than the statute, it is still the prosecutor's responsibility "to weigh the various factors and to reach a determination." Hoffman, supra, 399 N.J. Super, at 214 (quoting Wallace, supra, 146 N.J, at 586). A "prosecutor must use his or her independent judgment to fully and fairly evaluate" each of the relevant factors and determine the appropriate weight to give to each. Ibid.


The Prosecutor on appeal contends that he appropriately rejected defendant from PTI based on the nature of the offense (factor one), the facts of the case (factor two), the needs and interests of the victim and society (factor seven), and whether or not the crime is of an assaultive or violent nature (factor ten). N.J.S.A. 2C:43-12(e)(1), (2), (7), (10). He further argues that the trial judge improperly substituted his own discretion in ordering defendant's admission into the program.

"PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." Nwobu, supra, 139 N.J, at 255 (quoting State v. Sutton, 80 N.J. 110, 119 (1979)). In evaluating an application for admission to PTI, the program director and the prosecutor must consider all of the factors specified in both the statute and our Rules of Court. N.J.S.A. 2C:43-12(e); Guideline 3(i), supra, at 1126.

In this regard, Judge Isabella found that the Prosecutor erred when he

failed to consider the individual .... (including) the motivation and age of the defendant (who) is 25 years old and [is] a college student. She has a 3.2 GPA. She is working towards a degree in psychology. She has (worked) since the age of 15. There is no indication that she is a danger to the community or has been a threat to society. She has no criminal record.

As to factors one and two, the Prosecutor found that the nature of the offense and the facts of the case militated against diversion because defendant "was illegally driving a motor vehicle, " her "license had been suspended . . . for failure to pay the license restoration fee, " and "she was previously cited for operating a motor vehicle while suspended." The Prosecutor stated that "[t]the victim died as a result of [d]efendant's actions as she was driving and was not lawfully permitted to do so[, ]" and, thus concluded factors one and two supported rejecting defendant from PTI.

Regarding factor one,

[T]he nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected.
[Guideline 3(i), supra, at 1126.]

When an offense falls within one of the enumerated categories, the defendant has the burden to present "any facts or materials demonstrating the defendant's amenability to the rehabilitative process, showing compelling reasons justifying the defendant's admission, and establishing that a decision against enrollment would be arbitrary and unreasonable." Guideline 2, supra, at 1124.

Here, the nature of the offense did not fall within any of the types of crimes for which "the application should generally be rejected." Guideline 3(i), supra, at 1126. It was neither part of organized criminal activity nor a continuing criminal business or enterprise. Further, it did not involve any deliberate violence, threat of violence, or any breach of the public trust. Thus, nothing about the nature of the offense militated against diversion into PTI.

The offense itself was not of an assaultive or violent nature and there was no history of violence or "organized crime." N.J.S.A. 2C:43-12(e)(10), (12), (13). The prosecutor's heavy reliance upon the nature of the offense exceeded what was appropriate under the law. The nature of the offense may, in appropriate circumstances, serve as the sole basis for rejecting an applicant from PTI. State v. Caliquiri, 158 N.J. 28, 36 (1999); State v. Leonardis II, 73 N.J. 360, 382 (1977). The PTI Guidelines provide that a presumption against acceptance applies if "[a] defendant charged with a first or second degree offense . . should ordinarily not be considered for enrollment in a PTI program[.]" Guideline 3(i), supra, at 1126.

Although it is appropriate to reject a PTI application when the nature of the offense is presumptively disqualifying, Caliguiri, supra, 158 N.J, at 36, that presumption does not end the inquiry. The defendant may still be admitted if he shows "compelling reasons" to be admitted to PTI. Ibid.; Guideline 3(i), supra, at 1126; Nwobu, supra, 139 N.J, at 252-53.

Here, defendant did not have to overcome any presumption against acceptance. Nevertheless, the Prosecutor placed undue weight on defendant's operation of a motor vehicle while she remained on the revoked list, and further failed to acknowledge that defendant's revocation was administrative in nature, i.e. for failure to pay insurance surcharges.

A categorical exclusion from PTI based solely on the nature of the offense without consideration of the individual defendant is patently and grossly arbitrary. See State v. Caliguiri, 305 N.J.Super. 9, 17-18 (App. Div. 1997) (Caliguiri I). In Caliguiri I, a consolidated case, one of the defendants was indicted for assault by auto while intoxicated. Id. at 16-17. The prosecutor did not provide a statement of reasons for the denial of PTI but stated:

[D]iversion in cases such as this would only serve to undermine the joint efforts of [the prosecutor's office] and the sentencing courts in this [c]ounty to create an atmosphere wherein it is always known that persons who drink to excess and injure others by driving their vehicles when they are under the influence of alcohol will face vigorous prosecution for their conduct. Any other result would be a disservice to the public interest.
[Id., at 17. ]

Affirming the motion court's order compelling admission to PTI, we agreed the prosecutor arbitrarily rejected the defendant solely based on the category of the offense (assault by auto) without analyzing the guidelines and statutory factors "of the offense and the offender." Ibid.

As for the facts of this case, the record clearly shows this was a tragic accident which resulted in the death of a pedestrian. The Prosecutor conceded only that the accident "was possibly not intentional, " and placed total focus upon the fact that the victim suffered fatal injuries. Like Judge Isabella, we find the Prosecutor's arguments regarding the facts and nature of the case unconvincing; as the judge concluded, the Prosecutor provided no explanation

why the "nature" of the offense prevents (defendant's) admission into PTI. The death of an individual does not bar PTI admission and the fact that she [had] several motor vehicle violations, the majority being non-moving violations, does not bar the defendant from admission to PTI. . . .
. . . . The present offense does not bear a strong relationship to the nature of the defendant's prior motor vehicle violations. . . . The defendant was not improperly, recklessly, or negligently operating her vehicle. ... It was the defendant's failure to pay an insurance surcharge that resulted in the revocation of her license.

The Prosecutor also failed to present any convincing argument that the needs and interests of the victim and society weigh against defendant's admission to the PTI program. In State v. Ridgway, 208 N.J.Super. 118, 120 (Law Div. 1985), the prosecutor rejected the PTI application of the defendant who had been indicted for death by auto, N.J.S.A. 2C:ll-5. Similar to the case under review, the defendant was young, employed, with no physical, psychological or drug addiction problems and no criminal record. Ibid. Among the reasons stated for rejecting the defendant's PTI application was "[t]he needs and interests of the victim and society." Id. at 128. The court found the argument had no valid application under the circumstances presented:

The State's position is that society requires prosecution in order to maintain confidence in the enforcement of our motor vehicle rules, thereby insuring its belief that members of the public will not be endangered by motor vehicle operators who do not obey the law. . . .
Logic certainly insists that enforcement of our motor vehicle laws, criminal and otherwise, is a necessity, if they are to have any validity. But this can be said about every criminal offense. Death by auto is not peculiar in that respect. If this is a valid reason for denying a PTI application, it is one that can be used with every application. The intent of the statutes is to the contrary: "Any defendant charged with [a] crime is eligible for enrollment in a PTI Program. ..." GL3(i). It is clear that the State has not provided any valid reason showing that the needs of society require prosecution or that the instant offense is to be treated differently than any other.
[id, at 128-29. ]

A review of the Prosecutor's stated reasons for rejecting defendant's application shows that the prosecutor failed to consider all of the factors specified in both the statute and our Rules of Court. N.J.S.A. 2C:43-12(e); Guideline 3(i), supra, at 1126. Additional factors militating in favor of defendant include three, six, eight, nine, ten, eleven and twelve, which show defendant is young, motivated, not violent, likely to benefit from rehabilitation, and has not been involved in any other criminal activity. N.J.S.A. 2C:43-12(e)(3), (6), (8-12) .

In essence, the court found defendant's inability to pay steep insurance surcharges did not constitute a reasonable basis to deny PTI admission when all of the other factors weighed in favor of admission. Other than her motor vehicle history, defendant has no criminal history, she poses no threat to society, and the crime was not violent, but an accident. Additionally, defendant, a 2 5-year old college student who has steadily maintained employment for ten years, would benefit from rehabilitation of PTI. Further, the victim died from the circumstance that she fell and hit her head on the ground, not from the direct impact of defendant's vehicle. All these facts should have been balanced against the tragedy of the offense.

We are satisfied the Prosecutor's rejection failed to sufficiently demonstrate a careful consideration of the facts in light of the applicable law. See Wallace, supra, 146 N.J, at 584. Judge Isabella correctly found the Prosecutor's rejection of defendant's PTI application was a patent and gross abuse of discretion as the decision "was not premised upon a consideration of all relevant factors" and "amounted to a clear error in judgment" that subverts "the goals underlying Pretrial Intervention." Bender, 80 N.J, at 93.


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