                                 NOT FOR PUBLICATION WITHOUT THE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


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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


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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


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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:


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                                        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,

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                                        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).



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      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


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                                       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


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                                        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.




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