STATE OF NEW JERSEY VS. DAVID R. HARY (16-12-1435, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0599-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID R. HARY,

Defendant-Appellant.
______________________________

Submitted October 16, 2018 – Decided January 4, 2019

Before Judges Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 16-12-1435.

Mulkay & Rendo, PC, attorneys for appellant (Alain
Mulkay, on the brief).

Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
 Defendant David R. Hary appeals from the Law Division's upholding of

the prosecutor's rejection of defendant's application for entry into the Pretrial

Intervention Program (PTI). N.J.S.A. 2C:43-12; R. 3:28.1 Defendant was

previously charged in an indictment with one count of fourth-degree operating

a motor vehicle during a period of suspension for a second or subsequent driving

while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). Defendant applied

for PTI, which the Criminal Division manager approved but the prosecutor

rejected2 based upon an evaluation of the criteria set forth in N.J.S.A. 2C:43 -

12(e) and the Rule 3:28 Guidelines. Defendant appealed and the trial court

sustained the prosecutor's objections, finding that the prosecutor's decision was

not a patent and gross abuse of his discretion. For the reasons that follow, we

affirm.

1
"PTI is a 'diversionary program through which certain offenders are able to
avoid criminal prosecution by receiving early rehabilitative services expected to
deter future criminal behavior.'" State v. Roseman, 221 N.J. 611, 621 (2015)
(quoting State v. Nwobu, 139 N.J. 236, 240 (1995)). In 1970, PTI was
established by Rule 3:28. Ibid. (citing State v. Watkins, 193 N.J. 507, 517
(2008)). "PTI programs are 'governed simultaneously by the Rule and the statute
which "generally mirror[ ]" each other.'" Ibid. (alteration in original) (quoting
State v. Wallace, 146 N.J. 576, 582 (1996)).
2
"Pursuant to the procedures and guidelines established by Rule 3:28 and
N.J.S.A. 2C:43-12, acceptance into PTI is dependent upon an initial
recommendation by the Criminal Division Manager and consent of the
prosecutor." Roseman, 221 N.J. at 621.
A-0599-17T4
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 The allegations leading to defendant's indictment and the rejection of his

PTI application are summarized from the record as follows. On July 30, 2016,

defendant was stopped for motor vehicle violations and charged with driving

while on a cell phone, N.J.S.A. 39:4-97.3; driving with an expired license,

N.J.S.A. 39:3-10; and driving with a suspended license, N.J.S.A. 39:3-40. He

was later charged and indicted for the fourth-degree offense noted above.

After a grand jury indicted defendant, he applied for entry to the PTI

program, which the Criminal Division manager recommended. However, on

December 8, 2016, the prosecutor responded to the recommendation and set

forth her office's objection to defendant's admission. The prosecutor supported

her objection by first citing to our decision in State v. Harris, 439 N.J. Super.

150 (App. Div. 2015), in which we held that "[a]lternatives to jail" were not

available to defendants convicted of committing a violation of N.J.S.A. 2C:40-

26(c) that carries a mandatory 180-day period of incarceration without parole.

Based on our holding, the prosecutor asserted that PTI was not available to

defendant.

The prosecutor next addressed the statutory considerations set forth in

N.J.S.A. 2C:43-12(e). In support of her objection, the prosecutor relied upon

factors one, the nature of the case; two, the facts of the case; seven and fourteen,

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the interests of society; and eight, the continuing pattern of anti-social behavior

of defendant. As to factor one, the prosecutor stated that it was clear that the

Legislature intended DWI matters "to be taken extremely seriously," and that

defendant's multiple prior convictions for driving while suspended established

his "gross deviation from the standard of care that [drivers] are entrusted to

adhere." Turning to the facts of the case, the prosecutor relied upon the police

report that stated defendant not only operated his vehicle while suspended, but

did so while using a cell phone. As to the interests of society, the prosecutor

stressed that "[t]here is a strong societal interest in prosecuting those who

continue to operate motor vehicles while intoxicated or with a suspended license

as a result of a conviction for same," as demonstrated by the increasingly

stringent penalties imposed upon violators. Addressing defendant's pattern of

behavior, the prosecutor noted that it was the fifth time defendant was charged

with the same offense. She specifically noted that defendant was arrested for

driving while his license was suspended after his fourth DWI conviction in eight

years and that defendant had four prior convictions of operating a motor vehicle

without a license.

The prosecutor confirmed that defendant's attributes were also specifically

considered and concluded that after weighing all of the factors, PTI was not

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warranted. In closing, she stated that "[w]hile there are certainly scenarios

where those who violate N.J.S.A. 2C:40-26 should be permitted entry into PTI,

this case is not one of them."

Defendant appealed his rejection from PTI to the trial court. Defendant

contended that the prosecutor failed to address all of the statutory factors,

including defendant's attributes and amenability to supervision in a diversionary

program. In his counsel's letter to the court, defendant was described as a forty-

four year old man who is gainfully employed, a married father of four young

children who relied upon him for support, and who has no prior criminal

convictions.

Defense counsel included in the appeal a description of defendant's

driving abstract and confirmed that defendant had "only . . . two prior

convictions of violating N.J.S.A. 39:3-40," with the most recent being in 2000.

Similarly, he noted that defendant's convictions for DWI occurred many years

earlier, with his last conviction for either refusing a breath test or DWI being in

2006, which were followed by two other moving violations not related to DWI.

Counsel also argued that incarceration would present an extreme hardship

for defendant. He stated that a six-month jail term would seriously jeopardize

defendant's ability to return to work after his term because his work is assigned

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through a local union. According to counsel, permitting defendant to enter PTI

would be consistent with the purposes of the program. Moreover, applying the

statutory criteria, counsel argued that defendant's admission was warranted,

especially because no one was injured as result of his violation, defendant could

receive any required counseling and treatment through PTI, and his family

would not suffer any undue hardship.

After considering the parties' written submissions and oral arguments, the

trial court rejected defendant's appeal. In a written decision issued on March

20, 2017, the trial court set forth the applicable law governing admission to PTI,

including defendant's burden on appeal from a prosecutor's rejection; the

"enhanced" deference courts are obligated to apply to a prosecutor's decision to

reject a defendant from PTI; and the limited nature of a court's review of that

decision. The court found that, contrary to defendant's argument and although

the prosecutor expressly cited only five factors, the prosecutor considered all of

the required factors. Finally, the court found that defendant failed to meet his

burden of proving that the prosecutor's decision was a "patent and gross abuse

of discretion," citing to the prosecutor's reliance on the factors identified in h er

objection to defendant's admission into PTI.

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 Defendant later pled guilty to the fourth-degree offense and the court

sentenced him to the mandatory 180 days in jail, but stayed the sentence pending

the outcome of his appeal. This appeal followed.

On appeal from the trial court's decision, defendant argues:

POINT I

THE TRIAL COURT ERRED IN NOT APPROVING
[DEFENDANT'S] APPLICATION TO THE
PRETRIAL INTERVE[N]TION PROGRAM OVER
THE PROSECUTOR'S OBJECTION.

We find no merit to defendant's argument. We affirm substantially for the

reasons stated by the trial court in its cogent written decision. We only add the

following comments.

"The scope of judicial review of PTI decisions is 'severely limited[,]' and

interference by reviewing courts is reserved for those cases where needed 'to

check [ ] the "most egregious examples of injustice and unfairness."'" State v.

Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (alteration in original)(quoting

State v. Negran, 178 N.J. 73, 82 (2003)). "[O]n appeal, [we] review[] PTI

decisions with 'enhanced deference.'" Ibid. (quoting State v. Brooks, 175 N.J.

215, 225 (2002)).

Our review of a prosecutor's PTI determination is limited because of the

nature of the decision being made. "PTI is essentially an extension of the

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charging decision, therefore the decision to grant or deny PTI is a

'quintessentially prosecutorial function.'" Roseman, 221 N.J. at 624 (quoting

Wallace, 146 N.J. at 582). Prosecutors are granted "wide latitude in deciding

whom to divert into the PTI program and whom to prosecute through a

traditional trial." Negran, 178 N.J. at 82.

A prosecutor must evaluate PTI applications by considering the factors

defined by statute and court rule, and conduct an "individualized assessment" of

the applicant. The Supreme Court explained the evaluation process as follows:

The assessment of a defendant's suitability for PTI must
be conducted under the Guidelines for PTI provided in
Rule 3:28, along with consideration of factors listed in
N.J.S.A. 2C:43-12(e). These factors include "the
details of the case, defendant's motives, age, past
criminal record, standing in the community, and
employment performance[.]" Additionally, 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, 221 N.J. at 621-22 (citations omitted).]

A trial court "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

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(quoting Wallace, 146 N.J. at 582). "Where a defendant can make that showing,

a trial court may admit a defendant, by order, into PTI over the prosecutor's

objection." Id. at 625. A patent and gross abuse of discretion occurs when

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 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 [PTI].

[Ibid. (quoting State v. Bender, 80 N.J. 84, 93 (1979)).]

Applying these principles, we discern no patent or gross abuse of

discretion in the prosecutor's denial of defendant's PTI application. Thus, there

is no basis to disturb the trial court's decision sustaining the prosecutor's denial.

Although defendant certainly has a number of mitigating factors in his favor, the

reasons for the prosecutor's denial were premised on consideration of relevant

factors, which weighed against his admission. Defendant failed to clearly and

convincingly establish that the prosecutor's decision went so wide of the mark

sought to be accomplished by PTI that fundamental fairness and justice required

judicial intervention.

We conclude that defendant's arguments to the contrary are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

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Suffice it to say, "a court's scrutiny of a prosecutor's denial of consent is

normally limited to the reasons given by the prosecutor for his [or her] action[,]"

State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993), and "[a]bsent evidence

to the contrary, it is [to be] presumed that the prosecutor considered all relevant

factors before rendering a decision." Ibid. (alteration in original) (quoting State

v. Dalglish, 86 N.J. 503, 509 (1981)).

Here, the prosecutor appropriately referred to the State's version of the

facts where those facts were relevant to the applicable PTI factors, and the

prosecutor's statement of reasons clearly evinces a substantive analysis of valid

considerations.3 While reasonable minds might differ as to whether defendant

is a suitable candidate for admission into the program, the court's role when

considering an appeal of this sort is "limited" and the "[court] does not have the

authority . . . to substitute [its own] discretion for that of the

prosecutor. . . . even where the prosecutor's decision is one which the . . . court

disagrees with or finds to be harsh." Id. at 112-13 (alteration in original)

(citation omitted) (citing State v. DeMarco, 107 N.J. 562, 566-67 (1987)).

3
The fact that the prosecutor opined that under our holding in Harris, violators
of N.J.S.A. 2C:40-26 are somehow barred from PTI is of no moment because
the prosecutor considered the statutory factors and even noted that although PTI
could be available to such violators, it was not appropriate for defendant.
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Affirmed.

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