NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
THE COURT SUBSTITUTED ITS OWN JUDGMENT FOR THAT OF THE PROSECUTOR WHEN IT FOUND A PATENT AND GROSS ABUSE OF DISCRETION.
THE DECISION TO REJECT DEFENDANT'S PTI APPLICATION WAS WITHIN THE DISCRETION OF THE PROSECUTOR AND THERE WAS NO "PATENT AND GROSS ...