STATE OF NEW JERSEY VS. ROBERT NAHMÂ (15-10-0728, GLOUCESTER COUNTY AND STATEWIDE) ( 2017 )


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                          APPROVAL OF THE APPELLATE DIVISION
         This opinion shall not "constitute precedent or be binding upon any court."
          Although it is posted on the internet, this opinion is binding only on the
            parties in the case and its use in other cases is limited. R. 1:36-3.
    
    
    
    
                                             SUPERIOR COURT OF NEW JERSEY
                                             APPELLATE DIVISION
                                             DOCKET NO. A-4137-15T3
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    ROBERT NAHM a/k/a BOB NAHM,
    ROBERT T. NAHM,
    
         Defendant-Appellant.
    ______________________________________
    
                  Submitted September 27, 2017 – Decided October 23, 2017
    
                  Before Judges Alvarez and Geiger.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Gloucester County, Indictment
                  No. 15-10-0728.
    
                  Bruce H. Sherman, attorney for appellant.
    
                  Sean F. Dalton, Gloucester County Prosecutor,
                  attorney for respondent (Joseph H. Enos, Jr.,
                  Senior Assistant Prosecutor, of counsel and
                  on the brief).
    
    PER CURIAM
    
            Defendant     Robert     Nahm    was   charged     with    fourth-degree
    
    operating a motor vehicle during a period of license suspension
    
    for    multiple     convictions     of   driving   while    intoxicated     (DWI),
    N.J.S.A. 2C:40-26(b), and driving while suspended, N.J.S.A. 39:3-
    
    40.   Defendant applied for admission into Pretrial Intervention
    
    (PTI).    Following   rejection   of   his   PTI   application   by   the
    
    Gloucester County Prosecutor, defendant filed a motion in the Law
    
    Division appealing from that rejection, which was denied by the
    
    trial court.   Defendant then pled guilty to both offenses and was
    
    sentenced.   Defendant appeals the February 19, 2016 order denying
    
    his motion to override the prosecutor's rejection, and the April
    
    28, 2016 judgment of conviction, arguing the trial court erred
    
    when it upheld the prosecutor's rejection of his PTI application.
    
    We affirm.
    
          We glean the following facts from the record on appeal.           On
    
    March 21, 2015, at approximately 10:30 a.m., a Harrison Township
    
    police officer manning a stationary radar post on the shoulder of
    
    Mullica Hill Road (Route 322) ran a registration check on the work
    
    van being driven by defendant, which revealed that the driver's
    
    license of owner of the van, defendant Robert Nahm, was suspended.
    
    During the subsequent motor vehicle stop, defendant admitted his
    
    license was suspended as a result of a DWI conviction.           Because
    
    the police officer was required to respond to a priority domestic
    
    violence call, defendant was issued a summons in the mail for
    
    driving while suspended.   He was subsequently charged and indicted
    
    for violating N.J.S.A. 2C:40-26(b) after it was discovered that
    
                                      2                              A-4137-15T3
    defendant's license suspension was a result of a second DWI
    
    conviction.
    
         Defendant alleges he began driving the van after his co-
    
    worker refused to drive it further because it was swaying in the
    
    wind.     Defendant claims they would have been stranded if he did
    
    not take over driving.         The incident did not involve a motor
    
    vehicle accident, drugs, or alcohol.
    
         Defendant is fifty-two years old.       He works as an independent
    
    contractor    and   has   a   nineteen-year-old     daughter   in   college.
    
    Defendant has no prior criminal convictions, has no history of
    
    violence, and has never participated in any diversionary programs.
    
    Defendant claims he attended the required period of detainment at
    
    an   Intoxicated    Driver     Resource   Center,    see   N.J.S.A.     39:4-
    
    50(a)(1)(i), and was attending a sixteen-week alcohol counseling
    
    course.
    
         Defendant applied for admission into PTI.         He was recommended
    
    for admission into PTI by the vicinage's criminal division manager.
    
    In a one-page letter, the Gloucester County Prosecutor's Office
    
    objected to defendant's admission into PTI, citing criteria 1 (the
    
    nature of the offense), 2 (the facts of the case), 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).       N.J.S.A. 2C:43-12(e) (1), (2), (17).
    
                                         3                                A-4137-15T3
    The letter references defendant's prior DWI convictions in 2010
    
    and 2014. The letter then states:
    
               Coincidentally,    the    instan[t]    offense
               occurred almost exactly one year to the day
               of his second conviction for operating a motor
               vehicle    while    intoxicated.         These
               circumstances suggest to the Prosecutor that
               the defendant is not amenable to the
               rehabilitative process offered by the PTI
               Program.
    
               Having considered all statutory factors set
               forth in N.J.S.A. 2C:43-12 in their totality,
               the Gloucester County Prosecutor opposes this
               application.
    
    The letter did not discuss any other admission criteria or include
    
    any further fact specific analysis.
    
          Defendant then appealed the denial of entry into PTI to the
    
    Law Division.    The Prosecutor submitted a ten-page letter brief
    
    in opposition to the appeal.        Unlike his rejection letter, the
    
    Prosecutor's letter brief included a fact-specific discussion of
    
    all of the applicable statutory admission criteria.
    
          The PTI judge issued a February 19, 2016 order and oral
    
    decision denying defendant's appeal.       The oral decision included
    
    a   detailed   review   of   the   prosecutor's   basis   for   rejecting
    
    defendant's PTI application, including the fact-specific analysis
    
    of the statutory criteria set forth in the prosecutor's opposing
    
    letter brief.
    
    
    
                                         4                            A-4137-15T3
         The judge found that the prosecutor used a "significant and
    
    clear rationale," including weighing all of the factors in making
    
    his determination.      The judge noted that the prosecutor considered
    
    the repetitive nature of defendant's continuing offenses, which
    
    led the prosecutor to conclude that the defendant is not amenable
    
    to the rehabilitative processes offered by the program.                         The
    
    prosecutor further considered the fact that given defendant's age,
    
    the offense could not be excused as a youthful indiscretion.                    The
    
    prosecutor also gave significant weight to the protective benefit
    
    to society by prosecuting this type of case.                Finally, the judge
    
    indicated that the prosecutor had engaged in an individualized
    
    assessment of the application.             As a result, the judge concluded
    
    that the prosecutor's rejection was not a per se or categorical
    
    denial   and    did   not   amount    to    a   patent    and   gross   abuse    of
    
    discretion.
    
         Thereafter,      defendant      pled   guilty   to    violating    N.J.S.A.
    
    2C:40-26,      and    driving   while       suspended,     N.J.S.A.     39:3-40.
    
    Defendant was sentenced to the mandatory minimum 180-day jail term
    
    with no eligibility for parole, plus applicable penalties and
    
    assessments for the fourth-degree offense.               He was ordered to pay
    
    fines and court costs and received a one-year suspension of driving
    
    privileges for the driving while suspended charge.                The period of
    
    incarceration was stayed pending appeal.
    
                                            5                                 A-4137-15T3
         Defendant appeals the denial of his PTI motion.                    See R.
    
    3:28(g).   He raises the following arguments:
    
               POINT ONE:
    
               THE REJECTION OF THIS DEFENDANT FROM THE PRE-
               TRIAL INTERVENTION PROGRAM, BASED ON THE
               RECORD BEFORE THE COURT, SHOULD BE VIEWED AS
               AN IMPERMISSIBLE PER SE EXCLUSION.
    
               POINT TWO:
    
               A. THE STATEMENT OF REASONS FOR THE REJECTION
               OF DEFENDANT IS INADEQUATE AND FAILS TO
               ESTABLISH      SUFFICIENT      INDIVIDUALIZED
               EVALUATION OF HIS SUITABLILITY TO PARTICIPATE
               IN PRE-TRIAL INTERVENTION.
    
               B. THE PROSECUTOR HAS COMMITTED AN ABUSE OF
               DISCRETION BY WAY OF PLACING TOO MUCH WEIGHT
               ON THE NATURE OF THE OFFENSE AND ACCORDINGLY
               FAILING TO PROPERLY EVALUATE THE FACTORS THAT
               JUSTIFY DEFENDANT'S ADMISSION.
    
         After reviewing the record presented to the PTI judge and
    
    being   mindful   of   the   enhanced       deferential    standard   governing
    
    judicial review of prosecutorial decisions affecting admission
    
    into this diversionary program, we affirm.                We conclude that the
    
    PTI judge did not err when he denied defendant's motion to override
    
    the prosecutor's rejection of defendant's PTI application on the
    
    basis that the prosecutor's decision did not constitute a "patent
    
    and gross abuse of discretion" as defined by our Supreme Court in
    
    State v. Bender, 
    80 N.J. 84
    , 93 (1979).
    
    
    
    
                                            6                               A-4137-15T3
         Defendant       argues     that   the       prosecutor's       rejection     was    an
    
    impermissible per se denial.                We note that N.J.S.A. 2C:40-26(c)
    
    requires      the    imposition       of    a     mandatory      minimum       period    of
    
    incarceration of 180 days during which the defendant is not
    
    eligible for parole.           State v. French, 
    437 N.J. Super. 333
    , 336
    
    (App.    Div.       2014),     certif.      denied,        
    220 N.J. 575
         (2015).
    
    Notwithstanding        same,    N.J.S.A.         2C:40-26(b)      does    not    carry    a
    
    presumption       against    admission       into    PTI    under      either    N.J.S.A.
    
    2C:43-12(b) or Guideline 3(i) to Rule 3:28.                      State v. Rizzitello,
    
    
    447 N.J. Super. 301
    , 312-13 (App. Div. 2016).
    
         The absence of a presumption against admission into PTI is
    
    not dispositive of the issue presented by this appeal — whether
    
    there is a sufficient basis to conclude the prosecutor's rejection
    
    of defendant's PTI application amounted to a patent and gross
    
    abuse    of   discretion.        In    our       view,   the     PTI   judge    used    the
    
    appropriate deferential standard of review when he answered this
    
    question in the negative.
    
         Although defendant contends that his co-worker refused to
    
    drive any further, we do not view this as a case "in which an
    
    unforeseen emergency compelled defendant to undertake a course of
    
    action     that      [he]     would        not    have     taken       under     ordinary
    
    circumstances."        State v. Sylvester, 
    437 N.J. Super. 1
    , 7 (App.
    
    Div. 2014).     "Absent any mitigation, [the defendant's] actions can
    
                                                 7                                    A-4137-15T3
    be   reasonably    characterized    as   contemptuous       of   the   court's
    
    authority."   Ibid.
    
          As statutorily established in N.J.S.A. 2C:43-12 to -22, and
    
    as implemented under Rule 3:28 and the Guidelines for Operation
    
    of Pretrial Intervention in New Jersey, PTI is fundamentally a
    
    discretionary program.       Subject to judicial review, admission into
    
    PTI is based on a recommendation by the criminal division manager,
    
    with the consent of the prosecutor.         State v. Nwobu, 
    139 N.J. 236
    ,
    
    246 (1995).       The prosecutor's assessment is to be guided by
    
    seventeen non-exclusive factors enumerated in the PTI statute.
    
    N.J.S.A.   2C:43-12(e)(1)-(17).          Courts    must   "presume     that    a
    
    prosecutor considered all relevant factors, absent a demonstration
    
    by the defendant to the contrary." State v. Wallace, 
    146 N.J. 576
    ,
    
    584 (1996).
    
          "Deciding    whether    to   permit    diversion      to   PTI   'is     a
    
    quintessentially prosecutorial function.'"           State v. Waters, 
    439 N.J. Super. 215
    , 225 (App. Div. 2015) (quoting Wallace, supra, 146
    
    N.J. at 582).       "Prosecutorial discretion in this context is
    
    critical for two reasons. First, because it is the fundamental
    
    responsibility of the prosecutor to decide whom to prosecute, and
    
    second, because it is a primary purpose of PTI to augment, not
    
    diminish, a prosecutor's options."        Nwobu, supra, 139 N.J. at 246.
    
    "Accordingly,     'prosecutors     are   granted    broad    discretion       to
    
                                         8                                 A-4137-15T3
    determine if a defendant should be diverted' to PTI instead of
    
    being prosecuted."   Waters, supra, 439 N.J. Super. at 225 (quoting
    
    State v. K.S., 
    220 N.J. 190
    , 199 (2015)).   In State v. Negran, 
    178 N.J. 73
     (2003), the Court described the wide but not unlimited
    
    discretion afforded prosecutors when reviewing PTI applications,
    
    and the enhanced deference courts should employ:
    
              In respect of the close relationship of the
              PTI program to the prosecutor's charging
              authority, courts allow prosecutors wide
              latitude in deciding whom to divert into the
              PTI program and whom to prosecute through a
              traditional trial.    The deference has been
              categorized as enhanced or extra in nature.
              Thus, the scope of review is severely limited.
              Judicial review serves to check only the most
              egregious    examples    of   injustice    and
              unfairness.
    
              A prosecutor's discretion in respect of a PTI
              application is not without its limits,
              however.     A rejected applicant must be
              provided with a clear statement of reasons for
              the denial.     That writing requirement is
              intended to facilitate judicial review, assist
              in evaluating the success of the PTI program,
              afford to defendants an opportunity to
              respond,    and     dispel     suspicions   of
              arbitrariness. The requirement also enables
              a   defendant   to   challenge   erroneous  or
              unfounded   justifications    for   denial  of
              admission.
    
              [Id. at 82 (citations omitted); see also K.S.,
              supra, 220 N.J. at 199-200.]
    
         As correctly noted by the PTI judge, the trial court must not
    
    substitute its own discretion for that of the prosecutor even
    
    
                                     9                          A-4137-15T3
    where the prosecutor's decision is one which the trial court
    
    disagrees or finds to be harsh.     See State v. Kraft, 265 N.J.
    
    Super. 106, 112-13 (App. Div. 1993).   "Trial courts may overrule
    
    a prosecutor's decision to accept or reject a PTI application only
    
    when the circumstances 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.
    
    Roseman, 
    221 N.J. 611
    , 624-25 (2015) (citations omitted).          We
    
    apply the same standard of review as the trial court, and review
    
    its decision de novo.   Waters, supra, 439 N.J. Super. at 226.
    
         In Rizzitello, we described the burden imposed on a defendant
    
    seeking to overturn a prosecutorial rejection.
    
              To establish the prosecutor's rejection of
              defendant's PTI application amounted to a
              patent and gross abuse of discretion, a
              defendant must prove, by clear and convincing
              evidence, 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.
    
              [Rizzitello, supra, 447 N.J. Super. at 313
              (citations omitted).]
    
    
    
    
                                   10                           A-4137-15T3
          Here, defendant has not met his heavy burden.            Nor has the
    
    defendant shown that the prosecutor's decision clearly subverted
    
    the goals underlying PTI.          Conversely, granting defendant PTI
    
    would not necessarily serve all the goals of PTI set forth in
    
    N.J.S.A. 2C:43-12(a)(1)-(5).         Moreover, we cannot say that the
    
    prosecutor's decision could not have been reasonably made upon
    
    weighing the relevant factors.       See Nwobu, supra, 139 N.J. at 254.
    
    On   the   contrary,   we   find   that   that   the   prosecutor   properly
    
    considered and weighed all of the relevant factors in reaching his
    
    decision to reject defendant's application.            Accordingly, we hold
    
    that the prosecutor's refusal to sanction admission into the
    
    program did not constitute a patent and gross abuse of discretion,
    
    and affirm.
    
          We add the following observations.         Generally, motor vehicle
    
    violations are not appropriate factors for consideration, but
    
    where the prosecutor indicates that such violations are indicative
    
    of a pattern of anti-social behavior, they may be considered.             See
    
    Negran, supra, 178 N.J. at 84-85.          Here, the prosecutor recited
    
    defendant's prior DWI convictions in 2010 and 2014 and the license
    
    suspensions imposed to explain the extent to which defendant's
    
    crime constituted part of a continuing pattern of anti-social
    
    behavior, N.J.S.A. 2C:43-12(e)(8), and to show that defendant was
    
    not amenable to the rehabilitative process offered by the program,
    
                                         11                              A-4137-15T3
    N.J.S.A. 2C:43-12(e)(2).          In these circumstances we find the
    
    prosecutor properly relied upon the repetitive nature and timing
    
    of   defendant's   prior    DWI    convictions    and   resulting    license
    
    suspensions.
    
           The prosecutor also gave significant weight to the protective
    
    benefit to society by prosecuting violations of N.J.S.A. 2C:40-
    
    26(b). The consideration of that factor was appropriate and within
    
    the prosecutor's discretion.         By enacting N.J.S.A. 2C:40-26(b),
    
    "the Senate intended to lodge 'criminal penalties for persons
    
    whose [drivers'] licenses are suspended for certain drunk driving
    
    offenses and who, while under suspension for those offenses,
    
    unlawfully operate a motor vehicle.'"           State v. Luzhak, 445 N.J.
    
    Super. 241, 245 (App. Div. 2016) (quoting Senate Law and Public
    
    Safety and Veterans' Affairs Committee, Statement to S. 2939
    
    (November 23, 2009)). In State v. Carrigan, 
    428 N.J. Super. 609
    ,
    
    614 (App. Div. 2012),certif. denied, 
    213 N.J. 539
     (2013), we noted
    
    that the "strengthened penalty" for violation of N.J.S.A. 2C:40-
    
    26(b) was " legislatively prompted, at least in part, 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."
    
           Defendant complains that the prosecutor did not provide a
    
    full   consideration   of   each    statutory    factor   in   his   initial
    
                                         12                              A-4137-15T3
    rejection letter.    We agree.       "A prosecutor is required to provide
    
    a criminal defendant with a statement of reasons justifying his
    
    or her PTI decision, and the statement of reasons must demonstrate
    
    that the prosecutor has carefully considered the facts in light
    
    of the relevant law."         Wallace, supra, 146 N.J. at 584; see also
    
    K.S., supra, 220 N.J. at 198-99 (the prosecutor is required to
    
    consider the criteria set forth in N.J.S.A. 2C:43-12).                    If a
    
    prosecutor does not consider factors that should be considered,
    
    or does consider factors that should not be considered, a remand
    
    may be appropriate.          K.S., supra, 220 N.J. at 200.        Here, the
    
    failure   to   provide   a    full   consideration   of   each   factor    was
    
    adequately addressed in the prosecutor's subsequent letter brief,
    
    which provided a fact specific consideration of each relevant
    
    factor.   Therefore, a remand is unnecessary as it would serve no
    
    useful purpose.
    
         Defendant's remaining arguments lack sufficient merit to
    
    warrant discussion in a written opinion. R. 2:11-3(e)(2).
    
         Affirmed.
    
    
    
    
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