RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5439-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROBERT SPINELLI,
Defendant-Respondent.
_________________________
Argued February 6, 2019 – Decided August 7, 2019
Before Judges Fuentes, Accurso and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-05-
0690.
Joie D. Piderit, Assistant Prosecutor, argued the cause
for appellant (Andrew C. Carey, Middlesex County
Prosecutor, attorney; Patrick F. Galdieri, II, Assistant
Prosecutor, of counsel and on the brief).
Thomas P. Ehrlich argued the cause for respondent
(Ehrlich Law Offices, attorneys; Thomas P. Ehrlich, on
the brief).
PER CURIAM
Pursuant to Rule 3:28-6(c),1 the State appeals from the order of the Law
Division, Criminal Part enrolling defendant Robert Spinelli into the Pretrial
Intervention (PTI) program over the objection of the Middlesex County
Prosecutor's Office (MCPO). The State argues defendant did not prove, by clear
and convincing evidence, that the prosecutor's decision to reject defendant's PTI
application constituted a patent and gross abuse of discretion. We agree with
the State's position and reverse.
We derive the following facts from the record the parties developed before
the Criminal Part.
I
The Accident
At approximately seven o'clock in the evening on December 13, 2017, a
white SUV driven by Eric Johnson was stopped in the northbound lane of Route
27 in the Township of South Brunswick, with its left-turn signal on, indicating
1
At the time defendant applied for admission into PTI, the standards governing
his eligibility were codified in Rule 3:28 and related Guidelines. Effective July
1, 2018, the Supreme Court repealed these rules and replaced them with the rules
codified in Rule 3:28-1 to -10. However, as the State correctly noted in its
appellate brief, because the new rules were not in effect at the time defendant
applied for admission into PTI, we are bound to rely "on the version of Rule
3:28 and the accompanying Guidelines and Comments that governed" at that
time. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4 (2018).
A-5439-17T4
2
an intent to turn left into the parking lot of a Dunkin Donuts. Before Johnson
started to turn, a silver pickup truck driven by defendant collided into the SUV.
The pickup truck continued to drive without making any attempt to stop at the
scene of the accident. Johnson followed the pickup truck until it stopped at the
driveway of an Autotrendz store. Defendant's fourteen-year-old son was seated
in the pickup truck's passenger seat.
South Brunswick Police Officer Jarrid Harpster responded to the scene
and questioned both Johnson and defendant about the accident. Harpster
memorialized the parties' statements and his observations of defendant's
demeanor in a Drinking and Driving Report. Johnson told Harpster that
defendant "appeared to be intoxicated when he exited the vehicle to speak to
him." In response to Harpster's questions, defendant said he was on his way
home in Kendall Park after "he picked his son up from a wrestling match at the
high school." With respect to how the accident occurred, defendant claimed that
he was:
discussing the match with [his son when] . . . he took
his eyes off the road to look at his son while speaking
to him, and when he glanced back at the road, he
noticed a vehicle was stopped in front of him. He then
swerved attempting to avoid a crash, striking the right
rear passenger side wheel well and passenger door area.
A-5439-17T4
3
Defendant told Harpster that he did not stop immediately after the accident
because he wanted to find a safe place to park his pickup truck. He denied
having drunk any alcoholic beverages before the accident. Harpster noted in his
report that while speaking with defendant, he "smelled [an] odor of alcoholic
beverage coming from his breath . . . [his] speech was slow, stuttered, and
slurred." Harpster also noted defendant's "balance [was] off as he swayed back
and forth . . . [and] kept re-adjusting his foot position to gain balance." His eyes
were "glassy and watery." Harpster also recorded that defendant had "a large
contusion above his right brow from hitting his head on the steering wheel
during the crash." He requested the "Monmouth Junction First Aid" squad to
respond to the scene and evaluate defendant's injury. Defendant refused medical
attention at the scene, but told the first aid responders that he suffered from
hypoglycemia.
Based on these preliminary observations, Harpster asked defendant to
perform a series of field sobriety tests on a flat, level, blacktop area of the
Autotrendz parking lot. In response to Harpster's question, defendant said he
did not have any physical disabilities or other health-related problems that would
hinder or prevent him from performing any of these physical dexterity tests.
Before asking defendant to perform any of these tests, Harpster verbally
A-5439-17T4
4
described what he wanted defendant to do and physically demonstrated each test
in his presence. Harpster asked defendant to perform the heel-to-toe test; one-
leg stand test; and the thirty-second time-estimation test. 2 According to
Harpster, defendant was unable to perform as instructed all three of these tests.
At this point, Harpster concluded he had probable cause to charge
defendant with driving while intoxicated (DWI), N.J.S.A. 39:4-50, and
transported him to the South Brunswick police station to administer a
breathalyzer test. Harpster read defendant his constitutional rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and obtained his written consent to
waive these rights. Defendant also consented "to the taking of his breath
samples for chemical testing." See N.J.S.A. 39:4-50.2. Defendant's two breath
samples showed a blood alcohol content (BAC) of .21 percent, nearly three times
the .08 presumptive level of intoxication under N.J.S.A. 39:4-50.
On December 13, 2017, defendant was formally charged with DWI,
reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, and
making an unsafe lane change, N.J.S.A. 39:4-88(b). On December 15, 2017,
defendant was also charged with second degree endangering the welfare of a
2
Harpster described in detail how defendant failed to perform each one of these
tests. We do not include this aspect of Harpster's report here because it is not
germane to the legal issue before us.
A-5439-17T4
5
child under N.J.S.A. 2C:24-4(a)(2), by driving while intoxicated while his
fourteen-year-old son was a passenger, thereby knowingly putting him at risk of
harm, making him an abused and neglected child under N.J.S.A. 9:6-8.9(d)(2).3
PTI Application
Pursuant to Rule 3:28(h), a defendant must file an application for
admission into PTI "at the earliest possible opportunity, including before
indictment, but in any event no later than twenty-eight days after indictment."
Defendant filed this application for admission into PTI with the Criminal Case
Manager (CCM) on February 5, 2018 nearly three months before a Middlesex
County grand jury indicted him for second degree endangering the welfare of a
child. The CCM probation officer who reviewed defendant's PTI application
considered the following factors.
3
Due the nature of this offense, the Division of Child Protection and
Permanency (DCPP) was initially involved with defendant and his family. The
PTI Recommendation report prepared by the Middlesex County Criminal Case
Manager noted that a DCPP representative "ordered" defendant to undergo an
intake evaluation with Catholic Charities and referred him to "Open Door," an
outpatient substance abuse services program in New Brunswick. In a letter dated
June 8, 2018, a Supervisor of Family Services in the State Department of
Children and Families informed defendant's wife that they had "completed" their
intervention with the family and had "no further concerns." The Supervisor also
provided defendant's wife with the Department's hotline telephone number and
the telephone numbers of a variety of social services agencies that operate in the
community.
A-5439-17T4
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Defendant was forty-six years old at the time the accident. He is married
and has two teenaged children (twins), a boy and a girl. The fourteen-year-old
boy was in the pickup truck at the time of the collision. Defendant graduated
from Rutgers University in 1993 with a Bachelor of Science in Sports
Management and Exercise Science and attended an undetermined number of
graduate classes at the New Jersey Institute of Technology (NJIT), earning fewer
than six credits. Defendant told the CCM probation officer he stopped attending
NJIT when his wife became pregnant with the twins. He returned to NJIT in
2001 to complete an Environmental Infrastructure and Management course. The
CCM verified defendant earned twelve graduate level credits and a Graduate
Certificate from NJIT.
Defendant is employed as a Sales Manager with a company in New
Brunswick and has supervisory authority over twenty employees. At the time
the CCM prepared its PTI assessment report in 2018, defendant had been
employed at this company for twenty-one years. He suffers from hypoglycemia
and reports that his kidney function may be compromised. Defendant described
himself as a "former alcoholic" who "drank alcohol a couple of times per week."
He claimed to have been a "binge drinker" who was "sober for two and a half
years" before this accident. He told the CCM probation officer that since the
A-5439-17T4
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accident, he "actively attends" alcoholics anonymous (AA) meetings, has an AA
sponsor, and voluntarily attended graduate study counseling through Rutgers
University Psychological Services. Defendant does not have any prior
involvement with the criminal justice system. He has two prior DWI
convictions, in December 2012, and April 2000.
Defendant admitted he "consumed Vodka prior to the commission of the
instant offense . . . [and] was intoxicated." The CCM recommended defendant's
admission into PTI based on a combination of public policy considerations and
defendant's personal characteristics. According to the CCM: (i) defendant's
enrollment into PTI would relieve the overburdened criminal calendars and
allow the prosecutor to devote more resources to address serious criminal cases;
(ii) defendant is unlikely to commit another offense; (iii) defendant was
cooperative with the CCM and the DCPP and has participated in counseling
services; (iv) defendant's first DWI occurred eighteen years ago and his second
in 2012; and (v) the child victim was not injured. Pursuant to Guideline 3(i),
defendant is presumptively ineligible for admission into PTI because he is
charged with a second degree crime. However, the CCM did not consider this
factor in assessing defendant's eligibility for PTI because "to date he has not
been indicted."
A-5439-17T4
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The CCM recommended defendant's admission into PTI provided he: (1)
remain gainfully employed; (2) report as directed; (3) remain offense free; (4)
comply with the DCPP4; (5) continue to attend AA meetings; (6) continue
outpatient treatment until medically discharged; (7) pay restitution to Johnson
for any damage to his vehicle; and (8) abide by a potential court-ordered
suspension of his driver's license.
In a letter dated March 13, 2018, addressed to defense counsel, the
Assistant Prosecutor assigned to review defendant's PTI application advised
counsel that after considering the seventeen factors in N.J.S.A. 2C:43-12(e) and
the Guidelines appurtenant to Rule 3:28, the MCPO had decided to reject
defendant's application. Specifically, the MCPO found: (1) insufficient grounds
to overcome the presumption against admission into PTI for a defendant charged
with a second degree offense; (2) the particular facts of the case; (3) the
motivation and age of defendant; and (4) the public need to prosecute defendant
for this offense outweighs the value of supervisory treatment. Although there
were a number of factors that weighed in favor of admitting defendant into PTI,
the MCPO found holding defendant accountable for this offense through the
4
By this time, the DCPP had completed its investigation of this incident and
terminated its involvement with defendant's family.
A-5439-17T4
9
criminal justice system would better serve the public policy of deterrence of
DWI, especially in a case in which the intoxicated driver exposed his own minor
son to serious harm by having him as a passenger in the vehicle.
Defendant appealed the MCPO's rejection of his PTI application to the
Criminal Part. In his brief in support of his PTI application before the Criminal
Part, defense counsel described defendant's activity preceding the accident as
follows:
On the day of this offense, Mr. Spinelli attended a work
holiday party at a local restaurant and stayed for an hour
and a half at which time he consumed a few mixed
drinks over his better judgment. On his way home he
picked up his son from wrestling practice.
Although he conceded the MCPO had considered all of the relevant
factors in N.J.S.A. 2C:43-12(e), defendant argued the prosecutor had unduly
focused on the negative factors and failed to give "proper weight to . . .
defendant's character traits and rehabilitative efforts." Specifically, defendant
argued the prosecutor's reliance on the nature of the offense and the particular
facts of the case as factors that support the rejection of defendant's PTI
application "shows that the decision was arbitrary and capricious." Although he
was charged with second degree endangering the welfare of his own teenaged
son, defendant emphasized that the boy was not injured and "agrees to his father
A-5439-17T4
10
being let into PTI." Defendant also argued that the facts of the case "actually
weigh in favor" of admitting him into PTI.
Although he was convicted of his second DWI in 2012, defendant claimed
he had "abstained from intoxicating substances for many years but relapsed after
the death of his mother and the holiday season, as many people do." (Emphasis
added). According to defendant, society would be better served by his
admission into PTI "where he can learn the lesson from [his] mistake and return
to work and care for his family." Finally, despite this being his third DWI
conviction, defendant argues there is "simply nothing in the record to justify the
prosecutor's reliance" on a pattern of anti-social behavior.
The MCPO did not file a formal brief or memorandum of law before the
Criminal Part. In a letter addressed to defense counsel and copied to the trial
judge, the MCPO restated its reasons for rejecting defendant's PTI application.
The matter came before the trial court on July 20, 2018. The transcript shows
the judge acknowledged the receipt of the parties' written submissions and
stated: "All right. If nothing else needs to be said, I'll give you my decision." 5
5
Because the attorneys did not object, we infer they opted to waive oral
argument. We nevertheless emphasize that "[o]ral advocacy is a fundamental
aspect of our criminal justice system and should be encouraged, preserved, and
protected." State v. Parker, 459 N.J. Super. 26, 31 (App. Div. 2019).
A-5439-17T4
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After reviewing the salient facts in this case, the judge acknowledged that
a defendant seeking to overturn a prosecutor's rejection of an application to be
admitted into PTI must clearly and convincingly establish that the decision was
based on a patent and gross abuse of discretion. The judge also noted that the
prosecutor had considered and applied the seventeen factors codified in N.J.S.A.
2C:43-12(e) and the Guidelines attendant to Rule 3:28. After reviewing the
record of the accident prepared by Officer Harpster, the judge made the
following comment:
Now, the State's version of defendant's behavior at the
scene is somewhat contradicted by the police report
provided by the defense on the date of the incident.
While the defendant may not have initially been
forthcoming and may have lied to the officer when
asked initially if he had been drinking, he did ultimately
admit that he had been drinking, it's not uncommon for
people in that situation to not be completely
forthcoming but he ultimately did reveal that he was
drinking. And the officer noted in his police report that
the defendant was polite. He was calm and he was
cooperative.
The defendant's use of alcohol is the root cause of his
criminal charge and it seems to me that with proper
supervision and in light of the rehabilitative nature of
PTI, defendant can potentially overcome these troubles.
The judge's next significant comment came in analyzing the factor that
addresses the nature of the crime and whether the value of supervisory treatment
A-5439-17T4
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would be outweighed by the public need for prosecution. The judge noted that
even if defendant was admitted into PTI, he would not avoid the Title 39
sanctions imposed by the Legislature for his third DWI conviction. Thus, in the
judge's view, society's interests in deterring drunk driving would be sufficiently
served "because inherent in that offense, there's [a] 180 day jail sentence." 6
With respect to the charge of second degree endangering the welfare of
child, the judge found:
The victim in this case, his child expressly wishes that
the defendant not be prosecuted and that he be admitted
into the PTI program. And frankly society has an
interest in permitting or allowing a father with
obligations with no past criminal history into a
diversionary program where, with the support of his
family to address his drinking problems so that he can
remain a productive member of society, contributing to
his family, contributing to his community.
Finally, citing State v. Caliguiri, 158 N.J. 28 (1999), the judge made the
following comments with respect to the applicability of the presumption against
admission into PTI for a defendant charged with a first or second degree crime
under Guideline 3(i):
6
We are compelled to note that a sentence imposed for a third DWI conviction
under N.J.S.A. 39:4-50(a)(3) authorizes the court to allow defendant so serve 90
of the 180-day sentence "participating in a drug or alcohol inpatient
rehabilitation program approved by the Intoxicated Driver Resource Center ."
A-5439-17T4
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A categorical exclusion from PTI based solely on the
nature of the offense without consideration of the
individual defendant is patently and grossly arbitrary
according to Caliguiri. In that case, the Middlesex
County [P]rosecutor's rejection of a defendant from PTI
for assault by auto while intoxicated was overturned
where the prosecutor failed to consider individual facts
about the defendant.
In furtherance of this line of reasoning, the judge held that the MCPO's
determination here "seems no different than the prosecutor's determination in
[State v. Caliguiri]." The judge thus found that in his "view" denying
defendant's application "would clearly subvert the goals of PTI . . . ." Based on
these findings, the judge concluded that the prosecutor's rejection of defendant's
PTI application constituted "a clear error of judgment which has invariably
resulted in a patent and gross abuse of discretion."
II
We start our analysis by noting that our Supreme Court recently overruled
the holding in Caliguiri, which the trial judge viewed as dispositive of the issue
before us. In State v. Johnson, 238 N.J. 119, 122-23 (2019), the Court held that
"the presumption against PTI for second-degree offenders cannot be applied to
N.J.S.A. 2C:35-7(a) offenders." The Johnson Court also reaffirmed, however,
that "'PTI is essentially an extension of the charging decision, therefore the
decision to grant or deny PTI is a' 'quintessentially prosecutorial function.'" Id.
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at 128 (first quoting State v. Roseman, 221 N.J. 611, 624 (2015); then quoting
State v. Wallace, 146 N.J. 576, 582 (1996)). A brief recitation of the salient
facts in this case shows the trial court did not adhere to this standard of review.
When defendant made a conscious choice to pick up his fourteen-year-old
son from school, he had .21 BAC level. This level of intoxication made him a
clear danger to any motorists or pedestrians he encountered. Furthermore, and
mostly disturbingly, the most vulnerable person at the time was his own teenage
son. Officer Harpster's police report gives us an indication of the degree of his
disorientation and extent of his cognitive impairment:
[Defendant] looked over to talk to his son, when he
glanced back at the road, he noticed [a car] was stopped
attempting to turn into Dunkin Donuts and made
evasive [maneuvers] by swerving right to avoid a crash.
This caused him to impact the rear passenger wheel
well and side door of [the car].
The MCPO expressly noted these disturbing facts as a basis for finding
factor N.J.S.A. 2C:43-12(e)(14):
The public need for prosecution outweighs the value of
supervisory treatment in this case. The seriousness of
the offense would be depreciated by admission into
PTI. Defendant is someone who drives drunk, and this
is the third time he has been arrested for doing so. His
teenage son was in the car and he caused an accident.
A-5439-17T4
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Defendant was forty-six years old at the time of this accident. His
decision to drive while intoxicated that day was not uncharacteristic or an
aberrational lapse in judgment. He is an alcoholic who had been convicted of
driving while impaired on two prior occasions. His first DWI conviction
occurred in 2000 when he was twenty-nine years old. He was forty-one years
old when he was convicted for DWI a second time in 2012. In this third DWI
charge, defendant drove his pickup truck with a BAC nearly three times the
presumptive level of intoxication; his fourteen-year-old son was seated beside
him; and he crashed into a car that had stopped to make a lawful turn. Defendant
did not stop at the scene. He continued driving on Route 27 while the driver of
the car he had just crashed into gave chase.
Based on these allegations, in addition to the Title 39 violations, the State
charged defendant with second degree endangering the welfare of a child, a
crime that carries a presumption of incarceration of no less than five years in
State prison. In reaching the conclusion to reject defendant's PTI application,
the MCPO noted: "[W]hile there is no indication of any intentional violence,
[defendant] nonetheless presents a substantial danger to himself and others."
The Supreme Court made clear in Roseman that "the prosecutor's decision
to accept or reject a defendant's PTI application is entitled to a great deal of
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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.'" 221 N.J. at 624-25
(quoting Wallace, 146 N.J. at 582). Our review of the record here leaves no
doubt that the trial court's decision to overturn the MCPO's rejection of
defendant's PTI application was not based on a proper application of this
enhanced deferential standard of review.
Here, the trial court engaged in a de novo examination of the record,
through which it usurped the prosecutor's charging authority to reach what the
court "viewed" as the right result. This approach is irreconcilable with the role
the judiciary performs in this context. See State v. Rizzitello, 447 N.J. Super.
301, 314 (App. Div. 2016). Defendant did not present sufficient evidence to
overcome the presumption against admission or establish that the prosecutor's
rejection constituted "a patent and gross abuse of discretion." Guided by this
standard of review, we discern no legal basis to interfere with the prosecutor's
rejection.
Reversed and remanded.
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