NOT FOR PUBLICATION WITHOUT THE
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-3953-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM O'ROURKE, a/k/a
WILLIAM J. OROURKE,
Defendant-Appellant.
_______________________________
Submitted June 21, 2017 – Decided September 5, 2017
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
15-04-0209.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter T. Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
A Somerset County grand jury returned Indictment No. 15-04-
209 against defendant William O'Rourke, charging him with one
count of fourth degree operating a motor vehicle during a period
of license suspension for a second or subsequent conviction for
driving while intoxicated (DWI), N.J.S.A. 2C:40-26(b). A
Montgomery Township Police Officer also issued defendant summonses
for DWI, N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A. 39:4-
50(g); driving while his license was suspended, N.J.S.A. 39:3-40;
and driving a motor vehicle with an expired registration, N.J.S.A.
39:3-4.
Defendant applied for admission into the Pretrial
Intervention Program (PTI) in connection with the single count in
the indictment. The PTI Director in the Criminal Division
Manager's Office recommended that defendant's application be
denied because his record indicated that his present offense
"constitutes [an] ongoing pattern of anti-social behavior." The
Somerset County Prosecutor's Office (SCPO) concurred with the PTI
Director's recommendation and denied defendant's application.
Defendant thereafter submitted additional information to the SCPO
and asked the prosecutor to reconsider his decision based on the
particular hardship defendant's confinement would cause to his
wife. After reviewing defendant's supplemental presentation, the
prosecutor found no legal basis to reconsider his initial position.
Defendant appealed the prosecutor's rejection of his PTI
application to the Presiding Judge of the Criminal Part. After
2 A-3953-15T2
reviewing the parties' legal memoranda and considering the oral
argument presented by counsel, the judge upheld the SCPO's
rejection of defendant's PTI application. The judge found
defendant did not show, by clear and convincing evidence, that the
prosecutor's decision amounted to a patent and gross abuse of
discretion. Defendant thereafter negotiated an agreement with the
State through which he pleaded guilty to one count of the fourth
degree offense defined in N.J.S.A. 2C:40-26(b) and to DWI under
N.J.S.A. 39:4-50. The State agreed to dismiss the remaining Title
39 summonses and recommend the court sentence defendant to a term
of probation not to exceed three years, conditioned upon defendant
serving 364 days in the Somerset County Jail, 180 days of which
to be served without parole as mandated by N.J.S.A. 2C:40-26(b).
Defendant was free to argue for a lesser sentence within the
statute's mandatory parole restriction.
The court sentenced defendant to a three-year term of
probation, conditioned upon serving 180 days without parole in the
county jail as mandated by N.J.S.A. 2C:40-26(b). On his conviction
for his fourth DWI, the judge sentenced defendant to a term of 180
days in the county jail, to run concurrent to the term imposed for
his fourth degree criminal conviction, ordered him to pay a $1000
fine, revoked his driving privileges for ten years, and imposed
the mandatory monetary penalties under N.J.S.A. 39:4-50(a)(3).
3 A-3953-15T2
Defendant now appeals raising the following arguments:
POINT ONE
AT A MINIMUM, O'ROURKE'S PTI APPLICATION
SHOULD BE RECONSIDERED BECAUSE THE PROSECUTOR
REJECTED IT BASED UPON IMPROPER
CONSIDERATIONS.
A. The Prosecutor Applied A Non-
Existent Presumption against PTI
for the Charge of Driving While
Suspended for a Second or Subsequent
DWI Offense.
B. The Prosecutor Tendentiously
Misinterpreted Various Statutory
PTI Factors.
POINT II
O'ROURKE SHOULD HAVE BEEN ORDERED INTO PTI
BEECAUSE [SIC] THE OFFENSE WAS A FOURTH-DEGREE
DRIVING OFFENSE, HE WAS SEEKING TREATMENT FOR
HIS ROOT PROBLEM OF ALCOHOLISM, AND HIS WIFE
WAS SUFFERING FROM DEMENTIA.
We reject these arguments and affirm. We gather the
following facts from the record developed before the Criminal
Part.
At 3:25 p.m. on Wednesday, January 7, 2015, Montgomery Police
Officer Ryan Gray responded to Montgomery High School to
investigate a report of an intoxicated driver. When he arrived,
Gray found a Buick Riviera illegally parked at the curb of the
office of the Montgomery Board of Education. The car was
unoccupied with the engine running. Gray conducted a computer
4 A-3953-15T2
check of the vehicle's license plate number and discovered it was
registered to defendant, but the registration card had expired.
Gray entered the Board of Education Office and found defendant
seated in a chair. He immediately noticed that defendant had a
strong odor of alcohol and his face was flushed. When Gray spoke
with defendant, he noticed defendant spoke slowly and
deliberately. Based on these observations, Gray concluded
defendant was under the influence of alcohol. Defendant told Gray
he left the car parked because he anticipated he would return
within thirty seconds. It is undisputed defendant was unable to
successfully complete the field sobriety tests Gray asked him to
perform at the scene. Defendant's blood alcohol concentration
(BAC) was .25%, or more than three times the .08% presumptive
level of intoxication under N.J.S.A. 39:4-50(a).
On January 30, 2012, nearly three years before this encounter
with Officer Gray, defendant was convicted on his third DWI, was
sentenced to serve 180 days in the county jail, and had his license
revoked for ten years. Defendant was also charged with DWI on
October 17, 1989, and March 16, 2005 and subsequently convicted
of both. In addition to these charges, his driver's abstract
shows that over the past thirty years, defendant has been convicted
of speeding, reckless driving, unsafe operation of a motor vehicle,
and a variety of other moving violations. Defendant was nearly
5 A-3953-15T2
fifty-three years old when he was arrested and convicted for his
fourth DWI charge.
In support of his PTI application, defendant submitted a
letter dated February 20, 2015 from Turning Point, a program
dedicated to the "compassionate treatment of alcoholism and drug
dependency." The author of the letter, who described himself as
a "Primary Counselor," wrote to inform the Montgomery Municipal
Court Supervisor that defendant was "presently attending Turning
Point's short-term variable length of stay treatment facility for
chemical dependency." (Emphasis added). According to the letter,
defendant entered this program on January 22, 2015, fifteen days
after his arrest for his fourth DWI charge. The program will give
defendant "an aftercare recommendation and [he] will also be
encouraged to attend daily NA/AA meetings."
The record before us includes the supplemental information
that defense counsel submitted to induce the prosecutor to
reconsider his original decision to reject defendant's PTI
application. In a letter addressed directly to the prosecutor,
defense counsel asserted that defendant is a married father of two
minor children. His fifty-three-year-old wife suffers from
Alzheimer's disease. Counsel attached a letter from a neuroscience
institute to support this claim. Counsel states: "While Mr.
O'Rourke might be an alcoholic, he is an integral part of his
6 A-3953-15T2
wife's care. Six months of incarceration will only serve to
completely destroy this family that is already teetering on the
edge."
In his response acknowledging the receipt of defendant's
application for reconsideration, the prosecutor stated:
First, allow me to express my sincere
condolences to Mr. O'Rourke and his family
regarding the horrible circumstances in which
they find themselves. However, despite the
fact that the State recognizes the additional
hardship incarceration will occasion upon
defendant and his family, given the offenses
defendant is charged with . . . both statutes[1]
require mandatory incarceration. Moreover,
while it is not the "policy" of the Somerset
County Prosecutor's Office to reject all
persons charged with N.J.S.A. 2C:40-26(b), it
certainly [is] true that in most instances[,]
such as this case, the State will reject those
persons whose driving history demonstrates an
ongoing course of antisocial behavior,
combined with present charges that demonstrate
a lack of amenability to short term
rehabilitation.
The judge who decided defendant's appeal in the Criminal Part
ultimately accepted the State's position. The judge concluded
that the prosecutor had carefully reviewed defendant's PTI
application and found support for its rejection in the factors
codified in N.J.S.A. 2C:43-12(e). The prosecutor found factor
two, which requires a fact-sensitive evaluation, supports
1
N.J.S.A. 39:4-50(a)(3) and N.J.S.A. 2C:40-26(b).
7 A-3953-15T2
rejection. Defendant had a .25% BAC at the time of his arrest for
DWI; and this arrest occurred less than three years after his ten-
year suspension of his driving privileges for his third DWI
conviction. As for factor three, which addresses the motivation
and age of the defendant, the State asserts defendant's age
eliminates the possibility that this was a mere youthful
indiscretion. Instead, defendant's age reveals he has had multiple
opportunities to address his alcohol addiction and its disruptive
consequences. Factor four, which examines the desire of the
complainant or victim to forego prosecution, also favors
rejection. The Legislature's adoption of N.J.S.A. 2C:40-26(b)
clearly shows it seeks to deter drunk driving in our State by
imposing a mandatory minimum sentence of incarceration.
The PTI Judge also found support for the State's reliance on
N.J.S.A. 2C:43-12(e) factors five, six, and seven. Defendant's
history of Title 39 violations speaks for itself. As this court
has made clear:
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
8 A-3953-15T2
case of a defendant who loses his or her
driving privileges for DWI, but then continues
to drive despite the license suspension.
[State v. Rizzitello, 447 N.J. Super. 301, 315
(App. Div. 2016) (quoting State v. Harris, 439
N.J. Super. 150, 160 (App. Div. 2015)).]
Defendant's argument in favor of overturning the trial
court's ruling relies heavily on defendant's attempt to seek
treatment for his alcoholism. This argument is unavailing because
it fails to comprehend what the Legislature intended when it
adopted N.J.S.A. 2C:40-26(b). As we noted earlier, defendant has
been given the opportunity to seek treatment for his addiction on
multiple occasions. Indeed, when he was sentenced in 2012 for his
third DWI conviction, he was sentenced to 180 days in the county
"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[.]" N.J.S.A. 39:4-50(a)(3). (Emphasis
added). The record reflects defendant served all of the 180 days
in the county jail.
Defendant's fourth DWI conviction is consistent with his
nearly life-long defiance of judicial authority and utter
disregard for the welfare of his fellow motorists and pedestrians,
whom he places in clear danger when he drives a car with a .25%
BAC. Our Supreme Court made clear that "PTI is essentially an
9 A-3953-15T2
extension of the charging decision, therefore the decision to
grant or deny PTI is a 'quintessentially prosecutorial function.'"
State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v.
Wallace, 146 N.J. 576, 582 (1996)). Therefore,
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 (quoting Wallace, supra, 146
N.J. at 582).]
Here, the trial court correctly applied this enhanced
standard of review to uphold the prosecutor's rejection of
defendant's PTI application.
Affirmed.
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