NOT FOR PUBLICATION WITHOUT THE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-0562-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EDWARD J. TESSEY,
Defendant-Appellant.
______________________________
Submitted January 21, 2020 – Decided April 15, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-01-0161.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Assistant Deputy Public
Defender, of counsel and on the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Linda Anne Shashoua, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant, Edward J. Tessey, appeals from an order affirming the
prosecutor's denial of his application for admission to the pretrial intervention
program (PTI). Defendant was charged with operating a vehicle during a period
of license suspension that had recently been imposed on his third DWI
conviction. That conduct constitutes a fourth-degree crime under N.J.S.A.
2C:40-26(b). Criminal Presiding Judge Edward J. McBride convened a hearing
after which he upheld the prosecutor's decision to deny PTI. Judge McBride
concluded that the prosecutor had not committed a gross and patent abuse of
prosecutorial discretion. We agree and affirm the denial of PTI substantially for
the reasons expressed in Judge McBride's thorough oral decision.
I.
After Judge McBride denied defendant's appeal from the prosecutor's
rejection, and after his motion for reconsideration, defendant pled guilty to the
fourth-degree crime before another judge. Pursuant to the negotiated plea
agreement, defendant was sentenced to a two-year term of probation subject to
the six-month mandatory jail term prescribed by N.J.S.A. 2C:40-26(c). The
court also imposed the required fines and penalties. The sentencing court
ordered that the jail sentence could be served intermittently (on nights and
weekends) and stayed the sentence pending this appeal.
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II.
We begin our analysis by acknowledging certain legal principles that
govern judicial review of a prosecutor's PTI decision. Those principles were
recently summarized by our Supreme Court in State v. Johnson, 238 N.J. 119
(2019). "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.'" Id. at 127 (quoting State v.
Roseman, 221 N.J. 611, 621 (2015)). The decision to place a defendant in PTI
is entrusted to the discretion of the prosecutor. As the Court has explained:
PTI is essentially an extension of the charging decision,
therefore the decision to grant or deny PTI is a
"quintessentially prosecutorial function." As a result,
the prosecutor's decision to accept or reject a
defendant's PTI application is entitled to a great deal of
deference. A court reviewing a prosecutor's decision to
deny PTI may overturn that decision only if the
defendant "clearly and convincingly" establishes the
decision was a "patent and gross abuse of discretion."
[Id. at 128–29 (citations omitted).]
The contours of the abuse of discretion standard are well-defined, as is the
heightened requirement that such an abuse of discretion be patent and gross.
Ordinarily, an abuse of discretion will be manifest if
defendant can show that a prosecutorial veto (a) was not
premised upon a consideration of all relevant factors,
(b) was based upon a consideration of irrelevant or
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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.
[Id. at 129.]
The prosecutor's exercise of discretion is guided by criteria set forth by
the Legislature. If a prosecutor elects to deny a PTI application, the prosecutor
must provide a statement of reasons explaining the basis for that decision in light
of the enumerated PTI factors. N.J.S.A. 2C:43-12(e). That statement of reasons
"must demonstrate that the prosecutor has carefully considered the facts in light
of the relevant law." Wallace, 146 N.J. at 584. It is not sufficient for the
prosecutor merely to "parrot[] the statutory language, and present[] bare
assertions regarding [the defendant's] amenability to PTI." Roseman, 221 N.J.
at 627.
A court reviewing a prosecutor's denial of PTI "cannot substitute its own
judgment for that of the prosecutor." State v. Hoffman, 399 N.J. Super. 207,
216 (App. Div. 2008); see also State v. Kraft, 265 N.J. Super. 106, 112–13 (App.
Div. 1993) (observing "that 'a trial [court] does not have the authority in PTI
matters to substitutes [its own] discretion for that of the prosecutor" (alterations
in original) (quoting State v. Von Smith, 177 N.J. Super 203, 208 (App. Div.
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1980))). In State v. Lee, we sustained the prosecutor's rejection of the
defendant's application to PTI noting that the prosecutor's analysis "sufficiently
cogent and grounded in the facts and the applicable PTI standards to be upheld,
even though reasonable minds might differ as to whether defendant is a suitable
candidate for admission into the program." 437 N.J. Super. 555, 569 (App. Div.
2014).
III.
In this instance, the prosecutor submitted a letter pursuant to N.J.S.A.
2C:43-12(f) that addresses the seventeen PTI factors enumerated in N.J.S.A.
2C:43-12(e). The prosecutor's statement of reasons for denying PTI discusses
all applicable factors and does not merely parrot them. Judge McBride correctly
noted, moreover, that that the prosecutor did not categorically deny PTI based
on the nature of the offense. Although the prosecutor gave significant weight to
the seriousness of the offense and the risk that defendant's drunk driving conduct
posed to public safety, the prosecutor also considered the relevant mitigating
circumstances, including that defendant was sixty-two years old and this is his
first indictable offense. The prosecutor also acknowledged that defendant's first
two DWI convictions were committed in 1988 and 1999, respectively.
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Although reasonable people might disagree with respect to the weight the
prosecutor ascribed to the aggravating circumstances as compared to the
mitigating circumstances, we decline to substitute our judgment for that of the
prosecutor. The fact that defendant committed the present drunk driving offense
only two months after his license was suspended for a drunk driving conviction
underscores, in our view, the risk defendant's conduct posed to the public. It
also shows his unwillingness or inability to comply with a court order regarding
his driving behavior.
We agree with Judge McBride that, in the final analysis, the prosecutor
acted within the ambit of his discretion in weighing the factors militating for
and against PTI. We therefore affirm the denial of PTI.
IV.
As we have noted, the sentencing judge ordered that defendant could serve
the statutorily mandated six-month jail term intermittently. In Rodriguez, the
New Jersey Supreme Court concluded:
[T]he language of N.J.S.A. 2C:40-26(c) manifests a
legislative intent to bar intermittent sentences under
N.J.S.A. 2C:43-2(b)(7). The legislative choice of very
specific wording regarding the custodial sentence to be
imposed under N.J.S.A. 2C:40-26(c) does not permit
resort to an alternative, intermittent sentence available
as a general sentencing option under N.J.S.A. 2C:43-
2(b)(7).
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[238 N.J. at 117.]
An illegal sentence is one that is either unconstitutional or not authorized
by the New Jersey Code of Criminal Justice. State v. Zuber, 227 N.J. 422, 437
(2017) (citations omitted); see also R. 3:21-10(b)(5) (permitting the correction
of a sentence not authorized by the New Jersey Code of Criminal Justice). It is
well-established that an illegal sentence may be corrected at any time. State v.
Moore, 377 N.J. Super. 445, 450 (App. Div. 1988) (citing State v. Flores, 228
N.J. Super. 586, 594 (App. Div. 1988)). It is equally well-settled that we do not
have the option to disregard an illegal sentence. Ibid. Accordingly, we are
constrained to remand this matter to correct the stayed sentence in accordance
with the dictates of Rodriguez.
Affirmed in part and remanded in part. We do not retain jurisdiction.
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