NOT FOR PUBLICATION WITHOUT THE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-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
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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.
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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
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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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