ALISA FORMAN VS. MARK FORMAN (FM-13-0785-11, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-1204-14T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL A. SOTO,

Defendant-Appellant.

________________________________________________________________

Submitted September 14, 2016 – Decided April 21, 2017

Before Judges Messano and Espinosa.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-01-0112.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan Berkow, Special
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

Following a jury trial, defendant was convicted of N.J.S.A.

2C:40-26(b), operating a motor vehicle while his license was
suspended for a second or subsequent violation of N.J.S.A. 39:4-

50 (driving under the influence, or DWI). The trial judge

separately found him guilty of violating N.J.S.A. 39:3-40 (failure

to yield to a pedestrian in a crosswalk) and N.J.S.A. 39:4-36

(driving while privileges are suspended). He appeals from his

convictions and sentence, presenting the following arguments:

POINT I

THE PROSECUTOR'S REJECTION OF MR.
SOTO'S PTI APPLICATION WAS ROOTED IN
THE FLAWED NOTION THAT ALL
INDIVIDUALS CHARGED WITH VIOLATING
N.J.S.A. 2C:40-26 SHOULD BE
PRESUMPTIVELY INELIGIBLE FOR PTI.
BECAUSE THE PROSECUTOR'S SYSTEMATIC
DENIAL OF SUCH APPLICATIONS AMOUNTS
TO A PER SE RULE EXCLUDING A CLASS
OF PTI APPLICANTS, THE STATE'S
REFUSAL TO SANCTION MR. SOTO'S
ADMISSION INTO PTI CONSTITUTES A
PATENT AND GROSS ABUSE OF DISCRETION
THAT MUST BE REVERSED. (PARTIALLY
RAISED BELOW).

A. THE PROSECUTOR'S REFUSAL
TO ADMIT MR. SOTO INTO PTI WAS
PREMISED ON THE FAULTY BELIEF THAT
A PRESUMPTION AGAINST PTI ADMISSION
SHOULD EXIST FOR ALL INDIVIDUALS
CHARGED WITH VIOLATING N.J.S.A.
2C:40-26 AND A MISAPPLICATION OF THE
PTI FACTORS.

B. IN EFFECT, THE
PROSECUTOR'S UNDUE EMPHASIS ON THE
CHARGED N.J.S.A. 2C:40-26 VIOLATION
AMOUNTS TO A PER SE BAR TO PTI
ADMISSION.

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 POINT II

THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN ALLOWING THE
STATE TO INTRODUCE EVIDENCE LINKING
MR. SOTO TO THE CHARGES, WHICH WAS
NOT TURNED OVER TO THE DEFENSE UNTIL
THE SECOND AND THIRD DAYS OF TRIAL.

POINT III

EXTENSIVE PROSECUTORIAL MISCONDUCT
DEPRIVED MR. SOTO OF HIS
CONSTITUTIONAL RIGHT TO A FAIR
TRIAL. (PARTIALLY RAISED BELOW).

A. THE STATE IMPERMISSIBLY
DENIGRATED THE DEFENSE.

B. THE STATE IMPERMISSIBLY
ENCOURAGED THE JURY TO CONVICT MR.
SOTO BASED UPON HIS SUPPOSED
PROPENSITY TO MAKE BAD CHOICES.

C. THE CUMULATIVE EFFECT OF
THE PROSECUTORIAL MISCONDUCT
WARRANTS REVERSAL OF THE
CONVICTIONS.

POINT IV

THE SENTENCING COURT ERRED IN
FAILING TO MERGE THE N.J.S.A. 39:3-
40 CONVICTION INTO THE N.J.S.A.
2C:40-26 CONVICTION.

Although separate fines and penalties are appropriate for

defendant's convictions, we agree that defendant's conviction

under N.J.S.A. 39:3-40 should merge into his conviction for

violating N.J.S.A. 40:26(b). Therefore, we remand for a correction

of his judgment of conviction. We have considered defendant's

3 A-1204-14T2
remaining arguments in light of the facts and applicable legal

principles and affirm his convictions and sentence in all other

respects.

I.

Defendant first argues that the Prosecutor's denial of his

application for admission into the pretrial intervention program

(PTI) constituted a patent and gross abuse of discretion because

the Prosecutor essentially applied a per se rule against admitting

anyone charged with violating N.J.S.A. 2C:40-26. He argues further

that the Prosecutor misapplied a number of the factors applicable

to the review of his application, N.J.S.A. 2C:43-12(e). We

disagree.

A.

"[A]cceptance into PTI is dependent upon an initial

recommendation by the Criminal Division Manager and consent of the

prosecutor," following an assessment conducted under the PTI

Guidelines, R. 3:28, that includes the consideration of factors

listed in N.J.S.A. 2C:43-12(e). State v. Roseman, 221 N.J. 611,

621 (2015). The prosecutor must "make an individualized assessment

of the defendant considering his or her '"amenability to

correction" and potential "responsiveness to rehabilitation."'"

Id. at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)).

However, because "PTI is essentially an extension of the charging

4 A-1204-14T2
decision," State v. Rizzitello, 447 N.J. Super. 301, 313 (App.

Div. 2016) (quoting Roseman, supra, 221 N.J. at 624),

the prosecutor's decision to accept or reject
a defendant's PTI application is entitled to
a great deal of 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.'"

[Roseman, supra, 221 N.J. at 624-25 (citations
omitted).]

B.

Upon review of defendant's application for PTI, the Criminal

Division Manager did not recommend his admission into the program.

The reasons stated for this conclusion were (1) a violation of

N.J.S.A. 2C:40-26 carries a mandatory minimum sentence of 180 days

during which defendant would not be eligible for parole and (2)

defendant's multiple periods of driver's license suspensions (360

days on May 30, 1990; 730 days on October 29, 1993; 3650 days on

November 18, 1998).

The Prosecutor's Office rejected defendant's application for

admission into PTI. In his letter to defense counsel, the

assistant prosecutor advised, "we must agree with the reasons

stated in the program's report recommending rejection and we

5 A-1204-14T2
specifically incorporate those reasons in our decision to deny

consent for diversion."

Defendant appealed his rejection to the Law Division. He

submitted he was an appropriate candidate for PTI because he would

meet many of the criteria under N.J.S.A. 2C:43-12(e) and that his

participation in supervisory treatment would benefit him and

society. Although he spoke of the goal of PTI to deter criminal

behavior through short-term rehabilitative work or supervision,

he did not identify any specific form of rehabilitative service

that would serve that purpose in his case. He asserted he was

"now living a crime free, alcohol and substance abuse free life"

and provided a number of supportive letters from family and

friends.

In opposition, the Prosecutor's Office submitted a fifteen-

page letter brief that addressed each of the factors set forth in

N.J.S.A. 2C:43-12(e). The Prosecutor's principal argument was

that a charge of violating N.J.S.A. 2C:40-26 is subject to a

presumption against admission into PTI that was properly applied

in this case:

Defendant undoubtedly broke the law . . .
simply by driving with a suspended license
after it had been suspended 3 times
previously. To allow defendant PTI for a
violation of this statute would reward someone
who has already broken the law on three other
occasions, has a history of driving while
under the influence, and appears undeterred
6 A-1204-14T2
 by non-custodial punishment. Clearly, this
would not be consistent with the legislative
intent in enacting the statute.

The Prosecutor's letter went on to reflect consideration of

each of the factors set forth in N.J.S.A. 2C:43-12(e). Although

the discussion of these factors frequently focused on the nature

of the offense, the discussion was not limited to that factor.

There was acknowledgment that defendant had no history of physical

violence or involvement with organized crime, N.J.S.A. 2C:43-

12(e)(12) and (13), and that both N.J.S.A. 2C:43-12(e)(15) and

(16) were not applicable. We summarize some of the other findings:

Addressing N.J.S.A. 2C:43-12(e)(5) and (6) (the existence of

personal problems and character traits and availability of

treatment), the Prosecutor remained skeptical about defendant's

commitment to addressing the problem underlying his three prior

convictions for DWI, noting he did not seek treatment until

eighteen months after he was charged in this case. The Prosecutor

was also "not satisfied" that defendant had fully "recognized his

problem extends past the use of alcohol and extends to failure to

comply with the law, which clearly endangers the welfare of anyone

else on the road."

The Prosecutor also found defendant's actions constituted a

continuing pattern of anti-social behavior, N.J.S.A. 2C:43-

12(e)(8), that now included criminal behavior. In support of that

7 A-1204-14T2
finding, the Prosecutor cited defendant's series of license

suspensions for DWI.

In Rizzitello, supra, 447 N.J. Super. at 305, the prosecutor

advanced two reasons for rejecting the PTI application of a

defendant who was similarly charged: "(1) defendant's history of

defying court-ordered suspensions of his driving privileges for

driving while under the influence of alcohol; and (2) the

presumption against admission into PTI that applies to those

charged under N.J.S.A. 2C:40-26(b)." We rejected the prosecutor's

argument that this charge carries a presumption against admission

into PTI. Id. at 312-13. However, we also concluded that, given

the deferential standard applicable to the prosecutor's decision,

it was not a patent and gross abuse of discretion for the

prosecutor to reject the defendant's PTI application based upon

the fact that the "history of Title 39 violations . . . reveal[ed]

defendant's multiple instances of defiance of court-ordered

suspensions of his driving privileges." Id. at 316.

Defendant's driver's abstract for the period from January

1987 through November 2018 reveals four arrests for DWI. The

second of those arrests occurred just seven months after the

suspension of his driving privileges had ended. The third arrest

for DWI occurred in 1994, approximately one year into a two-year

suspension. In short, the incident that gave rise to his being

8 A-1204-14T2
charged with N.J.S.A. 2C:40-26 was not an isolated occurrence. We

are satisfied that the Prosecutor's rejection of defendant's PTI

application did not constitute a patent and gross abuse of

discretion, based upon the defendant's record of violations and

the additional factors considered by the Prosecutor.

II.

We next address defendant's challenge to the trial court's

evidentiary ruling presented in Point II.

Andrew Feller, the supervisor of the Transmittal Unit at the

New Jersey Motor Vehicle Commission (MVC), testified about the

motor vehicle abstract he retrieved from MVC's records for "Miguel

Soto." He stated the abstract revealed four suspensions for DWI.

He testified that the notices of suspension for three of the

suspensions were mailed to defendant at an address on Amboy Avenue,

Perth Amboy and a fourth notice of suspension was sent to him at

an address on New Brunswick Avenue in Perth Amboy. Feller also

confirmed that defendant's driving privileges were suspended as a

result of a conviction for DWI on the date of his arrest.

On cross-examination, Feller conceded he could not identify

defendant as the "Miguel Soto" who was the subject of the license

suspensions. The tone of the cross-examination suggested that the

defense intended to argue that defendant was not the person whose

license was suspended multiple times and to whom notices had been

9 A-1204-14T2
sent, despite the following exchange between the prosecutor and

defendant during a suppression hearing:

Q. Now, at the time that all of this
happened and you're driving the car, you
do recognize that you were suspended, you
weren't supposed to be driving, correct?

A. Yes.

On the day after Feller's testimony, the assistant prosecutor

advised the trial judge that the State was surprised by the cross-

examination of Feller and the defense it implied. She advised

that Feller conducted an additional search of MVC records and

discovered documents that established defendant's identity. The

trial judge reviewed the records produced by the State and

carefully considered the arguments of counsel. He concluded there

was no bad faith on the part of the State in producing the documents

at that juncture in the trial, that the evidence had "probative

value" that was not "outweighed by trial integrity issues," was

"not unduly prejudicial or that much o[f] a surprise."

The State was then permitted to elicit testimony from Feller

and admit documents that showed the following. On October 1,

2013, defendant went to an MVC center to obtain a non-driver's

identification card and provided a birth certificate to

authenticate his identity. His photograph was taken and a new

license number was issued to reflect his middle initial, changing

only two numbers from his prior license. Defendant signed a Motor
10 A-1204-14T2
Vehicle Commission Fee Payment Authorization form, verifying that

he was advised he had three or more DWIs on his driver history,

and received a copy. The documents also included a driver status

form for defendant, detailing identifying information and his

period of license suspension.1

Defendant contends this evidence was "highly prejudicial

[and] exceedingly late discovery." He argues that its admission

deprived him of his constitutional right to due process and a fair

trial. We disagree.

A trial court's evidentiary rulings are "entitled to

deference absent a showing of an abuse of discretion, i.e., there

has been a clear error of judgment." State v. Marrero, 148 N.J.

469, 484 (1997). It is beyond cavil that the evidence was relevant

as proof that defendant was the Miguel Soto whose license had been

suspended as the result of DWI convictions. The record supports

the credibility of the State's contention that it was surprised

by the apparent defense that put identity in issue. Although Rule

3:13-3(f) permits a judge to bar the introduction of material that

has not been timely produced, it does not require that outcome.

1 Defendant also objected to the mid-trial production of an order
from the Edison Municipal Court signed by defendant confirming
that he received notice of the fourth period of license suspension
imposed in 2006, and moved for a mistrial. Defendant has not
challenged the admission of that document or the denial of his
motion for a mistrial on appeal.
11 A-1204-14T2
The trial judge's determination reflected thoughtful consideration

of the issue and circumstances and was followed by an appropriate

limiting instruction. We discern no abuse of discretion.

III.

Defendant identifies two portions of the prosecutor's

summation that he contends deprived him of his constitutional

right to a fair trial. This argument lacks merit.

In our review of the prosecutor's comments, the factors to

be considered include: "whether 'timely and proper objections'

were raised, whether the offending remarks 'were withdrawn

promptly,' . . . whether the trial court struck the remarks and

provided appropriate instructions to the jury, . . . [and] whether

the offending remarks were prompted by comments in the summation

of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012)

(citations omitted).

The first argument relates to comments defendant

characterizes as denigrating the defense. Defendant contends the

prosecutor "insinuate[ed] that defense counsel acted deceitfully"

in cross-examining Feller in these comments:

But the defense says, while my witness
is on the stand, but these aren't all the
documents; are they? Which makes you wonder,
well, what else might the MVC have related to
Miguel A. Soto? So, Mr. Feller went back and
he looked and he found that the defendant went
back to the DMV . . . [o]n October 1st, 2013.

12 A-1204-14T2
 And on that date he got a nondriver ID.
But guess who knew that the whole time that
Andrew Feller was on the stand? The defendant
knew it. Who didn’t know it? State didn’t
know it, because we weren’t looking for it,
because this incident happened in 2011. So,
when it comes to a snow blower, a snow machine
making snow, I submit to you that the
defendant is the person who got the water, put
it in the snow blower, turned it on, made it
cold, blew snow. But he wanted to hide it.

Defense counsel objected, stating, "My client didn't

testify. . . . And it's kind of a round about comment about my

client testifying." He did not claim that the comments challenged

here denigrated the defense or ask the court for any other relief.

At the court's direction, the prosecutor moved on from that line

of argument.

Defendant acknowledges that the reference to the snow blower

was "in response to an analogy defense counsel made during closing

arguments." The fact is that the comments as a whole were

responsive to defense counsel's opening salvo. In his summation,

he referred to the initial documents presented through Feller as

selectively chosen by the State. He told the jury: the "State

chose not to show you" twelve pages from the driver's complete

history; "the State didn't want to show it to you"; "the DMV guy

is looking for stuff and not giving it all to us"; the State is

"giving you tidbits of information and not the whole story."

13 A-1204-14T2
 In reviewing the challenged comments, we note that the trial

judge instructed the prosecutor to move on when the objection was

made; the prosecutor did so; no further relief was requested by

defense counsel and, the comments can fairly be viewed as a

response to comments made by defense counsel in his summation.

See State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (holding

prosecutor's forceful statements in defense of integrity of

investigation not error when made in response to defense counsel's

summation comments describing State's case as a "big lie," "a

disgrace," and "an outrage"), certif. denied, 130 N.J. 393 (1991).

Defendant also argues the prosecutor made improper references

to his DWI convictions. He concedes that proof of a violation of

N.J.S.A. 2C:40-26(b) required evidence that his driver's license

was suspended for a second or subsequent DWI offense and that no

objection was made to these comments.

"Failure to make a timely objection indicates that defense

counsel did not believe the remarks were prejudicial at the time

they were made" and "deprives the court of the opportunity to take

curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999)

(citations omitted). As a result, when there is no objection, the

comments challenged on appeal will generally not be deemed to be

prejudicial. Ibid. We discern no reason to reach a different

conclusion here. Defendant's convictions are affirmed. We remand

14 A-1204-14T2
for a correction of defendant's judgment of conviction and do not

retain jurisdiction.

15 A-1204-14T2