                                NOT FOR PUBLICATION WITHOUT THE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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                                       2
                                       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

                                                                          A-0562-18T3
                                        3
            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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                                         4
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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                                        5
      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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                                       6
            [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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