State of New Jersey v. Steven Rizzitello

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0536-15T2

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
September 20, 2016
v.
APPELLATE DIVISION
STEVEN RIZZITELLO,

Defendant-Respondent.
_________________________________

Submitted June 8, 2016 – Decided September 20, 2016

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
14-01-00064.

Joseph D. Coronato, Ocean County Prosecutor,
attorney for appellant (Samuel Marzarella,
Supervising Assistant Prosecutor, of counsel;
William Kyle Meighan, Assistant Prosecutor,
on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

FUENTES, P.J.A.D.

An Ocean County Grand Jury indicted defendant Steven

Rizzitello on a single count of fourth-degree operating a motor

vehicle during the period of license suspension for a second or
subsequent conviction for driving while intoxicated (DWI),1 in

violation of N.J.S.A. 2C:40-26(b). The State appeals from the

order of the Law Division, Criminal Part, which admitted

defendant into the Pretrial Intervention (PTI) Program and

overrode the Ocean County Prosecutor's Office's (OCPO)

rejection.

The prosecutor states that his decision to reject

defendant's PTI application was based on: (1) defendant's

history of defying court-ordered suspensions of his driving

privileges for driving while under the influence of alcohol; and

(2) the presumption against admission into PTI that applies to

those charged under N.J.S.A. 2C:40-26(b). Consequently, the

prosecutor argues the trial judge erred when she concluded that

the OCPO's rejection of defendant's PTI application amounted to

a patent and gross abuse of discretion.

After reviewing the record presented to the PTI judge and

keeping in mind the enhanced deferential standard governing

judicial review of prosecutorial decisions affecting admission

into this diversionary program, we reverse. We conclude the

trial judge erred when she overrode the State's rejection of

defendant's PTI application because the prosecutor’s decision

did not constitute "a patent and gross abuse of discretion" as

1
N.J.S.A. 39:4-50.

2 A-0536-15T2
defined by the Supreme Court in State v. Roseman, 221 N.J. 611,

625 (2015) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

However, we reject the OCPO's characterization of the fourth

degree offense under N.J.S.A. 2C:40-26(b) as falling within the

"crimes that are, by their very nature, serious or heinous and

with respect to which the benefits of diversion are

presumptively unavailable." Roseman, supra, 221 N.J. at 622

(quoting State v. Watkins, 193 N.J. 507, 523 (2008)). See also

N.J.S.A. 2C:43-12(b); Pressler & Verniero, Current N.J. Court

Rules, Guideline 3(i) on R. 3:28 at 1193 (2016).

I

On July 5, 2013, Brick Township Police Officer Steven

Gerling issued defendant a summons under N.J.S.A. 39:3-40 for

driving while his driver's license was suspended. On September

29, 2013, Officer Gerling reviewed defendant's driver abstract

maintained by the Motor Vehicle Commission (MVC) and discovered

defendant's driver's license was suspended based on his third

DWI2 conviction. What transpired next is not clear. It appears

Officer Gerling contacted defendant to inform him of this

discovery, and defendant voluntarily reported to the Brick

Township Police Station. Defendant was then formally arrested

and charged with a fourth degree crime under N.J.S.A. 2C:40-

2
N.J.S.A. 39:4-50(a)(3).

3 A-0536-15T2
26(b). He was subsequently released from custody. The record

does not disclose whether defendant's release was conditioned

upon the payment of bail or any other court-ordered

restrictions.

An "[a]pplication for pretrial intervention shall be made

at the earliest possible opportunity, including before

indictment, but in any event no later than twenty-eight days

after indictment." R. 3:28(h). Defendant was indicted on

January 14, 2014. We infer defendant filed his PTI application

outside this regulatory timeframe because the record contains a

consent order, entered by the court on March 10, 2014,

permitting defendant to file the PTI application no later than

seven days from the date of the order. As provided for in Rule

3:28(h), the Criminal Division Manager assigned a probation

officer to interview defendant and gather information to

determine whether to recommend his admission into the PTI

program. We derive the following facts from the PTI Director's

letter denying defendant's application for admission into the

program.

Defendant was sixty-one years old at the time he applied

for admission into PTI in March 2014. He had been married to

his current wife for eighteen years and had two adult children

from two prior marriages. He graduated high school in 1971; for

4 A-0536-15T2
the past thirty-four years defendant has been employed fulltime

as a butcher for a supermarket chain. Defendant is an

alcoholic. He began drinking on a daily basis when he was

seventeen years old. Due to his multiple DWI convictions,

defendant has been ordered by municipal courts to participate in

the various alcohol addiction programs provided under N.J.S.A.

39:4-50(b) and (f).

According to his MVC driver abstract, defendant's first DWI

conviction occurred on November 25, 1987. By that time, he had

also been convicted three times for speeding, had an outstanding

warrant for failure to appear, and his driver's license had been

suspended or revoked under N.J.S.A. 39:3-40. On December 13,

1987, less than a month after his first DWI conviction,

defendant was again charged with driving while his license was

suspended or revoked, in violation of N.J.S.A. 39:3-40.

Defendant was convicted of his second DWI offense on June 18,

1996. This second conviction resulted in a mandatory suspension

of his driving privileges for two years. His driving privileges

were restored on August 6, 1998.

On May 29, 2013, defendant was convicted of his third DWI.3

On July 5, 2013, defendant was stopped by Officer Gerling for

3
A person convicted of DWI for a third or subsequent time

(continued)

5 A-0536-15T2
driving while his license was suspended. The appellate record

does not reveal the circumstances that led defendant to drive

his car that day. However, in its brief to the trial judge the

OCPO claimed defendant's decision to drive less than two months

after his third DWI conviction "show[s] defendant consciously

disregarded the law stating that he was not allowed to drive.

There was no compelling reason for him to be driving on that

date." The trial judge agreed with the State in this respect.

Without describing any particular facts, the judge noted: "As I

read the facts . . . the defendant doesn't even suggest that

there was any compelling reason."

By letter dated March 26, 2014, the vicinage's PTI Director

recommended against admitting defendant into PTI. After

(continued)
shall be subject to a fine of $ 1,000, and
shall be sentenced to imprisonment for a
term of not less than 180 days in a county
jail or workhouse, except that the court may
lower such term for each day, not exceeding
90 days, served participating in a drug or
alcohol inpatient rehabilitation program
approved by the Intoxicated Driver Resource
Center and shall thereafter forfeit his
right to operate a motor vehicle over the
highways of this State for 10 years. For a
third or subsequent violation, a person also
shall be required to install an ignition
interlock device under the provisions of
P.L.1999, c.417 (C.39:4-50.16 et al.).

[N.J.S.A. 39:4-50(a)(3).]

6 A-0536-15T2
referring to the statutory factors in N.J.S.A. 2C:43-12(e), the

PTI Director noted that the sanctions imposed by the court under

Title 39 had thus failed to deter defendant from continuing to

drive while his license was suspended. N.J.S.A. 2C:40-26(b)

"was put into effect to deter people from driving with a

suspended license." The PTI Director also emphasized that "[a]

motor vehicle can easily become a lethal weapon in the hands of

those not responsible enough to drive safely." In light of

these concerns, the PTI Director concluded that accepting

defendant's application "would devalue the seriousness of your

actions and send the wrong message to others who have committed

similar offenses."

Under the review process established by our Supreme Court,

"[t]he prosecutor shall complete a review of the application and

inform the court and defendant within fourteen days of the

receipt of the criminal division manager's recommendation." R.

3:28(h) (emphasis added). Based on the record provided to us in

this appeal, we infer the OCPO did not conduct the review

mandated by rule. Based on a letter-brief dated March 11, 2015

the OCPO sent to the trial judge, we infer defendant appealed

the PTI Director's denial directly to the trial court.

The matter came before the trial judge on April 15, 2015.

The prosecutor argued, as she does here, that the fourth degree

7 A-0536-15T2
offense under N.J.S.A. 2C:40-26(b) should carry a presumption

against admission into PTI pursuant to Guideline 3(i). After a

lengthy, on-the-record discussion with counsel, the judge

directed the prosecutor to reexamine her position against

admitting defendant into PTI after considering and applying the

statutory factors in N.J.S.A. 2C:43-12(e).

The prosecutor submitted a letter-brief dated July 21, 2015

to the trial judge addressing the seventeen statutory factors in

N.J.S.A. 2C:43-12(e). The matter returned for oral argument on

September 23, 2015. In support of her decision to override the

prosecutor's rejection of defendant's PTI application, the trial

judge found the OCPO had minimized defendant's age and

motivation to seek treatment for his alcohol dependency as

factors favoring admission under N.J.S.A. 2C:43-12(e)(3). The

judge also found factor four, N.J.S.A. 2C:43-12(e)(4), relevant

because it requires the prosecutor to consider "the desire of

the complainant or victim to forego prosecution." In this

respect, the judge found:

[T]his offense is essentially a victimless
crime. As indicated, there was no other
person involved. There . . . wasn't even a
motor vehicle violation. There were no
injuries, accidents, or other . . .
aggravating factors involved in this
incident.

8 A-0536-15T2
 The judge viewed defendant's addiction as "the root of his

problem." Thus, the judge was critical of the prosecutor's

failure to give "neither positive nor negative weight" to

defendant's alcoholism under factor five and six. N.J.S.A.

2C:43-12(e)(5)-(6). Factor eight requires the prosecutor to

consider "[t]he extent to which the applicant's crime

constitutes part of a continuing pattern of anti-social

behavior." N.J.S.A. 2C:43-12(e)(8). The prosecutor argued this

factor weighed heavily against defendant's admission into PTI.

The judge disagreed. After reviewing defendant's driving

history as reflected in the MVC abstract, the judge made the

following observations:

Here, he's not even stopped for a moving
violation, but a license check. There's no
question that the defendant's conduct in
driving while he was revoked exhibited very
poor judgment. He knew his license was
suspended. He doesn't contest that. But
there are no facts to support a
determination by the Prosecutor that the
defendant has a history of antisocial
behavior. Similarly, there's no aggravating
factors that demonstrate the harm to society
or the need to prosecute as claimed by the
State, other than the double counting of the
elements of this offense. At a minimum, the
defendant had to have at least two [DWI's]
to be charged with this offense.

Without more substantially distinguishing
facts or circumstances, this does not create
a history of antisocial behavior.

9 A-0536-15T2
 Ultimately, the judge viewed the prosecutor's position as

mistakenly driven by the nature of the offense, without giving

due consideration to defendant's individual circumstances. The

judge relied heavily on her assessment of defendant's

"background, character, motivation, and potential for

rehabilitation." Based on these findings, the judge stated she

was satisfied that defendant had "clearly and convincingly

established" the prosecutor's decision to reject his application

into PTI amounted "to a patent and gross abuse of discretion,

which clearly subverts the underlying goals of [the] PTI

Program."

II

The purpose of the PTI Program is to provide the

opportunity to certain defendants to avoid the traditional

prosecutorial route by receiving rehabilitative services.

Guideline 1 to R. 3:28. The Supreme Court and the Legislature

created an application process requiring input and participation

from both the judicial branch, through the Criminal Division

Manager, Rule 3:28(b), and the executive branch, through the

county prosecutor. N.J.S.A. 2C:43-12. A determination for

suitability and participation in the PTI program must be made

"under the Guidelines for PTI provided in Rule 3:28, along with

10 A-0536-15T2
consideration of factors listed in N.J.S.A. 2C:43-12(e)."

Roseman, supra, 221 N.J. at 621.

Once a defendant has submitted an application for admission

into PTI, the Criminal Division Manager is required to "complete

the evaluation and make a recommendation within twenty-five days

of the filing of the application." R. 3:28(h). After the

Criminal Division Manager has submitted this recommendation,

"the prosecutor shall complete a review of the application and

inform the court and defendant within fourteen days of the

receipt of the criminal division manager's recommendation."

Ibid. (emphasis added). Here, the record reflects that the OCPO

did not adhere to the rule's mandate. The record only contains

the prosecutor's submissions to the PTI court in response to

defendant's appeal. The language in Rule 3:28(h) is both clear

and emphatic. The prosecutor must independently evaluate

whether a defendant should be admitted into PTI.

The Supreme Court has also acknowledged the mandatory

nature of the prosecutor's participation at this phase of the

PTI-admission process. "[A] PTI determination requires that the

prosecutor make an individualized assessment of the defendant

considering his or her 'amenability to correction' and potential

'responsiveness to rehabilitation.'" Roseman, supra, 221 N.J.

at 621-22 (quoting Watkins, supra, 193 N.J. at 520). The OCPO's

11 A-0536-15T2
failure to perform this important, legally required evaluation

is unacceptable. We expect the trial court to enforce this

aspect of the PTI Program's application process to ensure the

reviewing judge has a complete record before deciding a

defendant's challenge to the denial of his or her application.

Notwithstanding this oversight, the record before us contains

sufficient facts to enable us to reach a definitive

determination of the PTI judge’s decision to overturn the

prosecutor’s veto.

The State argues the PTI judge erred by not reviewing

defendant's application as involving an offense that carries a

presumption against admission into PTI. We disagree. As the

Court explained in Roseman, both N.J.S.A. 2C:43-12(b) and

Guideline 3(i) specify the offenses that carry statutory

presumptions against admission into PTI. Roseman, supra, 221

N.J. at 622. Under N.J.S.A. 2C:43-12(b)(2)(b), the following

types of crime carry a presumption against admission into PTI:

(1) "any crime or offense involving domestic violence," as

defined in N.J.S.A. 2C:25-19 of the Prevention of Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, including crimes

committed by a defendant while subject to temporary or permanent

restraints issued pursuant to the PDVA; and (2) offenses

involving violence or the threat of violence, or offenses where

12 A-0536-15T2
the defendant "is armed with and uses a deadly weapon or

threatens by word or gesture to use a deadly weapon[.]"

Guideline 3(i), meanwhile, creates a presumption against

admission into PTI for: (3) any "first- or second-degree crime,

[and] [(4)] any crime that is a breach of the public trust."

Roseman, supra, 221 N.J. at 622.

The fourth degree offense that defendant is charged with

committing here does not carry a presumption against admission

into PTI under either N.J.S.A. 2C:43-12(b) or Guideline 3(i).

As our Supreme Court has explained, "When interpreting statutory

language, the goal is to divine and effectuate the Legislature's

intent." Perez v. Zagami, LLC, 218 N.J. 202, 209 (2016)

(quoting State v. Buckley, 216 N.J. 249, 263 (2013)). As such,

"[t]here is no more persuasive evidence of legislative intent

than the words by which the Legislature undertook to express its

purpose; therefore, we first look to the plain language of the

statute." Id. at 209-10. Here, nothing in the text of either

N.J.S.A. 2C:43-12(b) or Guideline 3(i) supports classifying the

fourth degree offense codified in N.J.S.A. 2C:40-26(b) as the

type of crime that carries a presumption against admission into

PTI. If the Legislature had intended this crime to carry a

presumption against admission into PTI, it would have stated it

plainly in the text of N.J.S.A. 2C:43-12(b).

13 A-0536-15T2
 This conclusion, of course, does not answer the question

underlying this appeal: Whether there is 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 did not use the appropriate

deferential standard of review when she analyzed and answered

this question in the affirmative.

As the Court reaffirmed in Roseman, "PTI is essentially an

extension of the charging decision, therefore the decision to

grant or deny PTI is a 'quintessentially prosecutorial

function.'" Roseman, supra, 221 N.J. at 624 (quoting State v.

Wallace, 146 N.J. 576, 582 (1996)). Consequently,

the prosecutor's decision to accept or
reject a defendant's PTI application is
entitled to a great deal of deference.
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.'"

[Id. at 624-25 (citations omitted).]

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

14 A-0536-15T2
 relevant factors, (b) was based upon a
consideration of irrelevant or inappropriate
factors, or (c) amounted to a clear error in
judgement. . . . 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.

[Id. at 625 (quoting Bender, supra, 80 N.J.
at 93).]

Here, the record does not support the PTI judge’s

conclusion that defendant satisfied this enhanced deferential

standard of judicial review. A careful reading of the PTI

judge's analysis shows the judge misunderstood the conduct the

Legislature intended to deter when it adopted N.J.S.A. 2C:40-

26(b). This threshold misperception tainted the judge’s review

of how the prosecutor applied the statutory factors in N.J.S.A.

2C:43-12. Under N.J.S.A. 2C:40-26(b), a person commits a fourth

degree crime when he or she operates a motor vehicle during the

period of license suspension in violation of N.J.S.A. 39:3-40,

if the underlying basis of the suspension or revocation was for

a second or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A.

39:4-50.4a. To establish culpability under N.J.S.A. 2C:40-26(b)

and trigger the mandatory 180-day term of incarceration, the

State must prove the individual was driving while serving a

court-imposed term of license suspension. State v. Perry, 439

N.J. Super. 514, 525 (App. Div.), certif. denied, 222 N.J. 306

15 A-0536-15T2
(2015). A person who drives before the MVC has administratively

restored his or her driving privileges, but after completing the

court-ordered suspension period, is not engaging in criminal

conduct under N.J.S.A. 2C:40-26b. Ibid.

Here, the PTI judge's analysis was heavily influenced by

defendant’s alleged attempts to address his alcohol addiction.

The judge, therefore, was critical of the prosecutor's position

minimizing the significance of defendant's efforts to address

his alcoholism by participating in addiction treatment programs.

The judge’s criticism of the prosecutor’s position in this

respect was misplaced in two ways. First, the only evidence of

defendant’s participation in alcohol treatment programs was

through the Intoxicated Drivers Resource Center (IDRC), a

mandatory aspect of the statutory penalties imposed by the court

under N.J.S.A. 39:4-50(b). Second, defendant’s alcohol

addiction did not play any role in his decision to drive his car

in defiance of a court-ordered ten-year suspension of his

driving privileges for his third DWI conviction. Defendant was

sober and in complete control of his faculties when he was

stopped by Officer Gerling on July 5, 2013.

In State v. Sylvester, we rejected the defendant’s

collateral attack of her conviction under N.J.S.A. 2C:40-26(b).

437 N.J. Super. 1, 7 (App. Div. 2014). In the course of our

16 A-0536-15T2
analysis of this issue, we noted that “[t]his was not a case in

which an unforeseen emergency compelled defendant to undertake a

course of action that she would not have taken under ordinary

circumstances." Ibid. Thus, "[a]bsent any mitigation, [the

defendant's] actions can be reasonably characterized as

contemptuous of the court's authority.” Ibid.

Here, defendant’s defiance of court-ordered suspensions

reflects the same contempt of the court’s authority. Defendant

has not presented any facts that would mitigate or explain his

decision to drive his car less than two months after his license

was suspended for his third DWI conviction. The record also

shows defendant has multiple convictions of driving while

suspended in violation of N.J.S.A. 39:3-40. In short, his

decision to drive while his license was suspended was not an

isolated or aberrant event. So far, the sanctions available

under Title 39 have not deterred defendant from driving while

suspended for a DWI conviction.

"The primary purpose behind New Jersey's drunk-driving

statutes is to curb the senseless havoc and destruction caused

by intoxicated drivers." State v. Tischio, 107 N.J. 504, 512

(1987). Since the Court decided Tischio nearly thirty years

ago, the penalties for driving while intoxicated have

consistently increased in severity as a means of deterring "the

17 A-0536-15T2
senseless carnage on our highways" caused by those who drive

drunk. Ibid. (quoting State v. D'Agostino, 203 N.J. Super. 69,

72 (Law Div. 1984)). The Legislature's decision to

criminalize the act of driving while one’s license is suspended

for a second or subsequent DWI conviction is the latest addition

to this arsenal of deterrence.

The Legislature's purpose in requiring a
mandatory period of "imprisonment" for this
offense, with no possibility of parole, is
also clear. Alternatives to jail, like the
inpatient drug rehabilitation program
involved in [State v. French, 437 N.J.
Super. 333 (App. Div. 2014)], or the home
detention and community service programs at
issue here, do not protect the public in the
same way as incarceration. This public
safety consideration is especially relevant
in the case of a defendant who loses his or
her driving privileges for DWI, but then
continues to drive despite the license
suspension.

[State v. Harris 439 N.J. Super. 150, 160
(App. Div. 2015).]

The PTI judge's decision to override the prosecutor's

rejection of defendant's PTI application failed to give due

deference to these public policy considerations. The judge also

failed to defer to the prosecutor's consideration of defendant's

history of Title 39 violations; these violations reveal

defendant’s multiple instances of defiance of court-ordered

suspensions of his driving privileges. In light of these

18 A-0536-15T2
factors, the prosecutor's rejection did not constitute a patent

and gross abuse of discretion. Roseman, supra, 221 N.J. at 627.

Reversed and remanded.

19 A-0536-15T2