STATE OF NEW JERSEY VS. HYUN WOOK HAM (15-10-1273, 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NOT FOR PUBLICATION WITHOUT THE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-0159-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HYUN WOOK HAM,

Defendant-Appellant.

_________________________________

Submitted October 25, 2017 – Decided November 13, 2017

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
15-10-1273.

Thomas Carroll Blauvelt, attorney for
appellant (Aqua G. Etuk, on the brief).

Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Annmarie Cozzi,
Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a March 14, 2016 order denying his

appeal of a prosecutor's rejection of his application for admission

into the pre-trial intervention program (PTI). He also appeals
the trial court's denial of a civil reservation that his guilty

plea to assault by auto not be evidential in any civil proceeding.

Because there is no record of the prosecutor providing defendant

with a written statement of reasons for the rejection of

defendant's PTI application, we vacate the order concerning PTI

and remand for further proceedings. Because defendant failed to

establish good cause for a civil reservation, we affirm the trial

court's denial of that request.

A grand jury charged defendant in a single-count indictment

with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), for

driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50

and causing bodily injury. Following the indictment, defendant

applied for PTI. The PTI program director preliminarily granted

defendant's application for admission into the program, but the

prosecutor denied defendant's application. Defendant appealed to

the Law Division, where a judge upheld the denial. Defendant then

pleaded guilty to the fourth-degree offense and a summons charging

him with DWI. The trial judge sentenced defendant in accordance

with a plea agreement to a two-year probationary term conditioned

on him attending Alcoholics Anonymous. The judge also imposed

appropriate penalties and assessments. On the DWI offense, the

judge also imposed appropriate penalties and assessments.

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 We first address defendant's challenge to the prosecutor's

rejection of his PTI application. When a prosecutor denies a

defendant's admission into PTI, the "prosecutor is required to

provide a criminal defendant with a statement of reasons justifying

his or her PTI decision, and the statement of reasons must

demonstrate that the prosecutor has carefully considered the facts

in light of the relevant law." State v. Wallace, 146 N.J. 576,

584 (1996).

Here, the prosecutor's written statement of reasons is not

included in the appellate record. Defendant asserts, "it is

unclear whether [the prosecutor's] objection was provided in

writing." The prosecutor does not address the issue. Rather, he

cites the trial judge's opinion to support the proposition that

the State objected to defendant's PTI admission. The trial judge's

opinion does not resolve the issue of whether the judge evaluated

the merits of the prosecutor's decision based on the brief that

the prosecutor submitted, a prosecutor's rejection letter to

defendant, or something else.1

Because it is unclear from the record whether the prosecutor

fulfilled his obligation to provide defendant with a written

statement of reasons for rejecting the PTI application, we vacate

1
The record is clear that the judge considered a video of the
auto-pedestrian accident underlying the charges.

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the Law Division order and remand this matter to the Law Division

in the first instance. If the prosecutor provided defendant with

a written statement of reasons rejecting the PTI application, and

the judge decided the matter based on such written statement, then

the Law Division judge shall so state and amplify his decision

based upon the prosecutor's statement of reasons. If the

prosecutor did not provide defendant with a statement of reasons

for rejecting the PTI application, then the trial judge shall

remand the matter to the prosecutor's office to provide such a

statement. If the prosecutor did not provide a statement, and if

defendant deems it appropriate to challenge the statement the

prosecutor submits on remand, defendant may seek relief in the

first instance in the Law Division. Following any Law Division

proceedings, either side may timely file an appeal.

We turn to defendant's second argument. After the trial

judge imposed sentence, he addressed defendant's application for

a civil reservation. The judge denied defendant's application due

to the nature of the incident and the injury to the victim.

Rule 3:9-2 provides that "[f]or good cause shown the court

may, in accepting a plea of guilty, order that such plea not be

evidential in any civil proceeding." Here, defendant did not

demonstrate good cause, and his arguments to the contrary are

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without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded for further

proceedings consistent with this opinion. We do not retain

jurisdiction.

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