NOT FOR PUBLICATION WITHOUT THE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-0401-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH M. EIZAGUIRRE,
Defendant-Appellant.
Submitted November 15, 2018 – Decided January 15, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 15-02-0182.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen P. Hunter, Assistant Deputy Public
Defender, of counsel and on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (William P. Miller, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief; John J. Scaliti, Legal
Assistant, on the brief).
PER CURIAM
Defendant Joseph M. Eizaguirre appeals the February 22, 2016 Law
Division decision denying him entry into the pretrial intervention (PTI)
program. See N.J.S.A. 2C:43-14 to 43-20; R. 3:28. He further appeals the June
23, 2017 imposition of an eight-year state prison term on his subsequent guilty
plea to second-degree knowingly leaving the scene of an accident resulting in
death, N.J.S.A. 2C:11-5.1. We affirm.
When defendant was sentenced, the remaining counts of the indictment
were dismissed: second-degree vehicular homicide, N.J.S.A. 2C:11-5; third-
degree causing death while driving with a suspended license, N.J.S.A.
2C:40-22(a); and third-degree endangering an injured victim, N.J.S.A. 2C:12-
1.2. The charges arose from an incident which occurred July 26, 2014.
As taken from the undisputed facts found by the judge, at approximately
4:49 a.m. a Carlstadt police officer was flagged down by a pedestrian. The
officer discovered the body of a man lying in the middle of the roadway, near
his parked truck. Police later obtained surveillance video from a nearby business
that depicted a white bread van striking the victim as he stood next to his truck.
The driver stopped his van, turned off the headlights, then turned them back on
again, and drove on. By mid-afternoon, police had located the van parked in the
lot of the business that owned it. The victim's blood was found on the van's
A-0401-17T3
2
damaged headlight. By checking the morning's records, police identified
defendant as the driver.
Officers drove defendant from his home to the station to be interviewed.
He eventually acknowledged striking the victim and leaving the scene because
he was frightened.
At the time, defendant was operating the vehicle on a suspended license,
and had the following motor vehicle history: October 16, 2009, operating a
motor vehicle with fictitious plates and improper child restraints; February 2,
2010, failure to wear a seatbelt; February 9, 2010, fictitious plates; February 26,
2010, failure to observe traffic control; June 25, 2010, failure to wear a seatbelt;
June 29, 2010, careless driving; December 27, 2010, fictitious plates; January
13, 2014, use of cell phone while driving; February 3, 2014, obstructed traffic;
July 10, 2014, speeding; and January 6, 2015, unsafe operation. When
sentenced, defendant was fully employed, twenty-five years old, had obtained
an associate's degree in criminal justice, and was married with a two-year-old
child. He had no criminal history, volunteered in the community, and hoped to
become a police officer.
After the accident, defendant was diagnosed as suffering from sleep
apnea, which his expert attributed as the cause of the accident. Further, the
A-0401-17T3
3
expert opined that it was "likely . . . that [defendant] panicked because he didn't
know what happened, . . . [and] put together a story that made sense to him since
he fell asleep at the wheel and did not know what had actually happened." The
expert also said that "[m]emory loss is a prominent feature of several disorders
including [s]leep [a]pnea."
The trial judge remanded the application to the prosecutor's office for
reconsideration, but denied defendant's appeal from the second rejection. In her
statement of reasons, the judge found that the prosecutor took into account the
nature of the offense and the facts of the case, N.J.S.A. 2C:43-12(e)(1), (2). This
included the fact that defendant's first instinct, after he struck the victim, was to
shut off his headlights and leave the scene, showing callous indifference to a
dying man. Defendant finished his deliveries, parked his truck, and went home.
The victim's widow was interested in the imposition of traditional
prosecution and a maximum sentence for the reckless killing of her husband.
Thus, the state took into account the desire of the victim to not forego traditional
prosecution, N.J.S.A. 2C:43-12(e)(4). Insofar as the needs and interests of
society, N.J.S.A. 2C:43-12(e)(7), (17), the prosecutor noted that two of the
crimes were second-degree offenses that carried a presumption of incarceration,
and that defendant had also been charged with causing death while
A-0401-17T3
4
unlicensed/suspended pursuant to a 2001 legislative amendment to vehicular
homicide and vehicular assaults. N.J.S.A. 2C:40-22. That the Legislature
enacted the amendment indicated its concern regarding the offense and its
interest in traditional prosecution.
When considering N.J.S.A. 2C:43-12(e)(14), the State concluded that
these three separate offenses required traditional prosecution because of the
societal interest in addressing the crimes, including the fact that the No Early
Release Act, N.J.S.A. 2C:43-7.2, applied to vehicular homicide or death by auto.
The court observed that the diagnosis of sleep apnea and defendant's
positive lifestyle characteristics could not overcome the reasoned analysis of the
prosecutor. Thus, the prosecutor's rejection of the application was not a patent
and gross abuse of discretion given the severity of the crime, the charged
offenses, and the deliberate nature of defendant's decision to leave the scene.
For those reasons, the judge did not order defendant into PTI.
At defendant's sentencing hearing, a different judge stressed defendant's
motor vehicle history. She found aggravating factors three and nine, and placed
the greatest weight on factor nine. The judge's concern, because of defendant's
motor vehicle history, was that defendant might engage in this type of conduct
again in the future. N.J.S.A. 2C:44-1(a)(3). She added as to the need to deter:
A-0401-17T3
5
"[y]ou can't have an accident, inflict -- hit a pedestrian and leave." N.J.S.A.
2C:44-1(a)(9). The judge declined to find mitigating factor four, N.J.S.A.
2C:44-1(b)(4), because she considered the expert report regarding defendant's
sleep apnea to be inconclusive regarding the cause of the accident, or defendant's
conduct in leaving the scene. The judge perceived the sleep apnea diagnosis as
"a triable issue," but not an excuse or even an explanation for defendant's
departure from the scene.
Because defendant's insurance company paid damages to the victim's
family, the judge found mitigating factor six, N.J.S.A. 2C:44-1(b)(6); however,
she accorded that factor slight weight. She also found mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7), as defendant had no prior criminal history.
Additionally, the judge found mitigating factor eleven, as defendant did have a
young child who would be losing the benefit of her father's companionship.
N.J.S.A. 2C:44-1(b)(11). She concluded the aggravating factors substantially
outweighed the mitigating and therefore sentenced defendant to eight years.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE PROSECUTOR'S REJECTION OF
DEFENDANT'S PTI APPLICATION CONSTITUTED
A PATENT AND GROSS ABUSE OF DISCRETION
BECAUSE THE PROSECUTOR FAILED TO
CONSIDER ALL THE RELEVANT FACTORS,
A-0401-17T3
6
INCLUDING DEFENDANT'S SLEEP APNEA,
RESULTING IN A CLEAR ERROR OF JUDGMENT
WHICH SUBVERTED THE GOALS UNDERLYING
THE PTI PROGRAM.
POINT II
THE SENTENCE WAS EXCESSIVE. U.S. Const.
Amend. VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 12.
As the Supreme Court has recently reiterated, "PTI is essentially an
extension of the charging decision, [and] therefore the decision to grant or deny
PTI is a 'quintessentially prosecutorial function.'" State v. Roseman, 221 N.J.
611, 624 (2015). Prosecutors enjoy broad discretion in making these decisions.
Our review of them is "severely limited." State v. Negran, 178 N.J. 73, 82
(2003). We overrule only when it is clear that the prosecutor's decision refusing
to admit a defendant into the program is a patent and gross abuse of discretion.
Roseman, 221 N.J. at 624-25 (citations omitted); see also R. 3:28-6(b)(1). In
order to establish such a patent and gross abuse of discretion, a defendant must
demonstrate that the prosecutor's decision was not premised on a consideration
of all relevant factors, was based upon a consideration of irrelevant or
inappropriate factors, or amounted to a clear error in judgment. State v.
Rizzitello, 447 N.J. Super. 301, 313 (App. Div. 2016) (quoting Roseman, 221
N.J. at 625).
A-0401-17T3
7
Furthermore, in cases where a defendant faces first or second-degree
charges, as set forth in Guideline 3(i), a presumption exists against admission.
See Roseman, 221 N.J. at 622. In order to overcome that presumption, a
defendant must demonstrate compelling reasons which would make a decision
against enrollment arbitrary and unreasonable. Ibid. Overcoming such
presumptions requires a showing of something extraordinary or unusual about
the defendant. Id. at 622-23.
Such a showing has not been made. This defendant has failed to overcome
the presumption against admission. Defendant's diagnosis of sleep apnea,
assuming it is accurate, does not explain his willful departure from the scene of
the accident, the continuation of his delivery route, and his return home at the
end of the work day. Rather, the circumstances depict a knowing and conscious
decision to leave the victim, who was at least injured, in the middle of the
roadway at dawn. While defendant may have suffered from sleep apnea, and
was indeed a relatively law-abiding individual with a family and workplace and
educational accomplishments, these considerations are insufficient to establish
compelling reasons.
The prosecutor gave an individualized assessment of the statutory factors,
and explained the reasons defendant's admission into PTI would not advance the
A-0401-17T3
8
goals of the program. The prosecutor considered factors other than the victim's
unwillingness to consent to defendant's admission into PTI. Thus, we see no
error in the judge's decision affirming defendant's rejection from the program.
With regard to defendant's challenge to his sentence, the sentencing
judge's analysis of the aggravating and mitigating factors was based on the
record. Motor vehicle offenses can be included in the calculus of evidence
supporting aggravating factor three. See State v. Lawless, 423 N.J. Super. 293,
305-06 (App. Div. 2011) (in a vehicular homicide case, the sentencing judge
appropriately cited the defendant's "substantial history of driving while
intoxicated and in some instances while his license was suspended" in finding
aggravating factor three), aff’d, 214 N.J. 594 (2013); State v. Devlin, 234 N.J.
Super. 545, 557-58 (App. Div. 1989). Aggravating factor nine in this case had
particular weight in light of the nature of the offense, namely, the departure from
the scene by a motorist who had inflicted grave injuries in the course of a motor
vehicle accident. Because of the weight the judge accorded the aggravating
factors, she concluded that they outweighed the mitigating. So long as that
assessment is supported by the evidence, it will be upheld. See Lawless, 214
N.J. at 606; State v. Blackman, 202 N.J. 283, 297 (2010). A sentence will be
sustained when the statutory factors are properly balanced and supported by
A-0401-17T3
9
competent credible evidence. State v. Case, 220 N.J. 49, 65 (2014). Given our
deferential standard of review, we do not disturb this sentence. See Lawless,
214 N.J. at 606.
Affirmed.
A-0401-17T3
10