                                NOT FOR PUBLICATION WITHOUT THE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-0042-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RYAN S. ROBERTS,

     Defendant-Appellant.
____________________________

                    Argued January 7, 2019 – Decided February 5, 2019

                    Before Judges Messano and Gooden Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 15-09-
                    1089.

                    Marissa J. Costello argued the cause for appellant
                    (Costello & Whitmore, attorneys; Marissa J. Costello,
                    on the brief).

                    Jennifer B. Paszkiewicz, Assistant Prosecutor,
                    argued the cause for respondent (Scott A. Coffina,
                    Burlington County Prosecutor, attorney; Jennifer B.
                    Paszkiewicz, of counsel and on the brief).

PER CURIAM
      Following the denial of his motion to invalidate the motor vehicle stop

that led to his arrest, defendant appealed to the Law Division the denial of his

application for admission into the Pre-Trial Intervention Program (PTI). When

his PTI appeal was denied, he entered a negotiated conditional guilty plea to

fourth-degree operating a motor vehicle during a period of license suspension,

N.J.S.A. 2C:40-26(b),1 and was sentenced to a one-year probationary term,

conditioned upon serving 180 days in the county jail.2

      Defendant now appeals from the judgment of conviction raising the

following points for our consideration:

            I.    THE TRIAL COURT ERRED IN DENYING
                  DEFENDANT'S MOTION TO SUPPRESS[.]

                        ....



1
   N.J.S.A. 2C:40-26(b) provides "[i]t shall be a crime of the fourth degree to
operate a motor vehicle during the period of license suspension in violation of
[N.J.S.A.] 39:3-40, if the actor's license was suspended or revoked for a second
or subsequent violation of [N.J.S.A.] 39:4-50 [(DWI)] or . . . [N.J.S.A. 39:4-
50.4a (refusal to submit to breath testing)]." Under N.J.S.A. 2C:40-26(c), there
is "a fixed minimum sentence of not less than 180 days" without parole for a
conviction under N.J.S.A. 2C:40-26(b).
2
  When defendant was arrested, he was also issued motor vehicle summonses
for driving while revoked, N.J.S.A. 39:3-40; unlicensed driver, N.J.S.A. 39:3-
10; and failure to install an ignition interlock device, N.J.S.A. 39:4-50.19. At
sentencing, he received a concurrent sentence for driving while revoked. The
sentences were stayed pending appeal.
                                                                        A-0042-17T3
                                          2
            II.   THE PTI DIRECTOR'S DENIAL OF
                  DEFENDANT'S APPLICATION TO PTI WAS
                  A PATENT AND GROSS ABUSE OF
                  DISCRETION[.]

                        ....

                  [A]. THE DIRECTOR ABUSED HIS
                       DISCRETION  BY   RELYING
                       UPON       INAPPROPRIATE
                       CRITERIA AND FAILING TO
                       CONSIDER        REQUIRED
                       CRITERIA   IN    DENYING
                       DEFENDANT ADMISSION TO
                       PTI[.]

                  [B]. THE DIRECTOR'S ABUSE OF HIS
                       DISCRETION WAS PATENT AND
                       GROSS AS IT SUBVERTS THE
                       GOALS UNDERLYING PTI (NOT
                       ARGUED BELOW)[.]

                  [C]. THE PROSECUTOR FAILED TO
                       MAKE     AN   INDEPENDENT
                       EVALUATION      OF        THE
                       DEFENDANT FOR PTI AND
                       RELIED    ON     THE       PTI
                       DIRECTOR'S INAPPROPRIATE
                       CONSIDERATION              OF
                       CONVICTIONS    THAT      ARE
                       ESSENTIAL TO SUPPORT A
                       VIOLATION OF N.J.S.[A.] 2C:40-
                       26[(B).]

We have considered these arguments in light of the record and applicable legal

principles. We reject each of the points raised and affirm.


                                                                       A-0042-17T3
                                       3
      Medford Lakes Patrolman Andrew Hoyer was the sole witness who

testified for the State at the suppression hearing conducted on June 1, 2016.

After the hearing, Judge Philip E. Haines found "the officer's testimony

credible" and made the following findings of fact in a June 14, 2016 written

decision:

                  On February 22, 2015, retired police officer
            Dennis Nelson visited the Medford Lakes Police
            Department to report that his former son-in-law,
            [defendant] Ryan Roberts . . . , was driving on a
            suspended license.      Nelson further advised that
            [d]efendant would be dropping his kids off at his ex-
            wife's house that evening. A Medford Lakes Sergeant
            then sent Officer Hoyer to patrol that area.

                   Officer Hoyer described the area as a "very small
            street" with "not much traffic at all." There were no
            moving cars on the street at that time. Shortly after 7:30
            p.m., Officer Hoyer observed a car pull up to Nicole
            Roberts' house to drop off children. Thereafter, Nicole
            Roberts called 911 to report that [d]efendant was
            driving on a suspended license. She also provided her
            address, description of [d]efendant's vehicle, and the
            direction she believed it to be traveling. Officer Hoyer
            was dispatched to pull the vehicle over. He then located
            the vehicle and conducted a stop on Lenape Trail.
            Officer Hoyer confirmed that [d]efendant's license was
            suspended and took him into custody on an outstanding
            warrant.

      In his legal analysis, citing State v. Carty, 170 N.J. 632, modified by 174

N.J. 351 (2002), and State v. Pineiro, 181 N.J. 13 (2004), the judge explained


                                                                         A-0042-17T3
                                        4
that "[a] police officer may conduct a motor vehicle stop if he possesses a

reasonable and articulable suspicion that an offense has been committed[,]" and

"[t]he State must establish by a preponderance of the evidence that the officer

possessed sufficient information to give rise to this level of suspicion." The

judge acknowledged that, under State v. Amelio, 197 N.J. 207 (2008), "[i]n some

circumstances[,] an informant's tip may assist the court in evaluating whether

the police officer had reasonable suspicion to conduct an investigatory stop."

According to the judge, while "[a]n anonymous tip alone is rarely sufficient to

establish a reasonable and articulable suspicion of criminal activity[,]" on the

other hand, "'when an informant is an ordinary citizen, New Jersey courts

assume that the informant has sufficient veracity and require no further

demonstration of reliability[,]' State v. Stovall, 170 N.J. 346 (2002)."

      In denying defendant's motion to suppress, the judge determined that

"[b]ased on the totality of the circumstances, Officer Hoyer had a reasonable

and articulable suspicion that [d]efendant was driving on a suspended license to

justify the stop." The judge rejected defendant's contrary arguments, and found

that inasmuch as Officer Nelson and Nicole Roberts were ordinary citizens who

identified themselves to police, their tips were sufficiently reliable to establish




                                                                           A-0042-17T3
                                        5
the requisite level of suspicion of criminal activity to support the motor vehicle

stop. The judge stated:

             Defendant argues that Nicole Roberts, and her father,
             had an ulterior motive to have him arrested based on an
             on-going custody battle. This does not diminish the
             reliability of the information they provided. Had it
             been false, either could have [been] charged with
             providing false information to law enforcement
             authorities.    The analysis would differ had the
             information come from an anonymous source.

       After the judge entered a memorializing order on June 14, 2016, denying

his suppression motion, defendant appealed the denial of his PTI application.

The Criminal Case Manager/PTI Director had rejected defendant's PTI

application in a letter dated May 16, 2016,3 for the following reasons:

             The crime the defendant is charged with, [N.J.S.A.]
             2C:40-26(b), is a crime that the Legislature felt should
             carry a mandatory term of incarceration if convicted.
             Additionally of concern is that prior sanctions and
             license suspensions did little to deter the on-going
             illegal act of driving without a valid license. . . .

                   . . . The defendant's lengthy driving abstract, . . .
             reports at least seven [occasions] . . . when his license
             was suspended. He has accrued several infractions on
             his driving history.      This crime would carry a
             mandatory term of incarceration if [he is] convicted.
             Prior sanctions and license suspensions did little to
             deter the [on-going] illegal act of driving without a
             valid license. He demonstrates little to no regard for

3
    The letter is mistakenly dated May 16, 2015.
                                                                           A-0042-17T3
                                         6
            the laws set [in place] regarding the [privileges] of
            carrying a license.

Likewise, in a letter dated August 24, 2016, the prosecutor advised defendant

that after "review[ing] the materials," she was "unable to consent to defendant's

entry [in]to the PTI program."

      Following oral argument, on September 22, 2016, Judge Haines issued a

written decision, denying defendant's appeal and rejecting his PTI application.

Citing State v. Bender, 80 N.J. 84, 93 (1979), the judge explained that "[i]n order

to establish an abuse of discretion," defendant had to show that the PTI

Director's decision "was not premised upon consideration of all relevant

factors," "was based upon a consideration of irrelevant or inappropriate factors,"

or "amounted to a clear error in judgment." The judge concluded that defendant

failed to meet "the burden of establishing abuse of discretion."

      First, the judge rejected defendant's argument "that the PTI [D]irector's

acknowledgement of the mandatory term of incarceration was improper." On

the contrary, the judge found that "a mandatory term of incarceration" was a

proper "consider[ation] in making a decision about a PTI application" because

"the nature" and "seriousness of an offense" were "key consideration[s]." See

N.J.S.A. 2C:43-12(e)(1) (listing "[t]he nature of the offense" as one of the

factors "[p]rosecutors and program directors shall consider in formulating their

                                                                           A-0042-17T3
                                        7
recommendation" on PTI applications); see also State v. Carrigan, 428 N.J.

Super. 609, 613-14 (App. Div. 2012) (noting that the public need for prosecution

of violations of N.J.S.A. 2C:40-26 by a mandatory 180 days of incarceration

without parole has been prompted "by reports of fatal or serious accidents that

had been caused by recidivist offenders with multiple prior DWI violations, who

nevertheless were driving with a suspended license").

      The judge also explained that the mandatory term of incarceration "did

not function as a presumption against PTI," requiring defendant "to show

compelling reasons" why he should be admitted into the program. To support

his determination, the judge pointed out that the PTI Director's rejection letter

"did not mention anything about a presumption against his admission nor did it

state that he failed to show compelling reasons[.]" See State v. Caliguiri, 158

N.J. 28, 43 (1999) (explaining that rejection based solely on the nature of the

offense is appropriate only if the offender fails to rebut the presumption against

diversion for certain offenders pursuant to N.J.S.A. 2C:43-12(b)(2) by

establishing "compelling reasons" as permitted under Rule 3:28, Guideline 3(i)).

      Next, the judge rejected defendant's argument that the PTI Director's

consideration of his driving record was improper. In addressing this argument,

the judge recounted that upon conducting the instant motor vehicle stop, the


                                                                          A-0042-17T3
                                        8
responding officer discovered that defendant "had an outstanding warrant from

Egg Harbor Township" and "[defendant's] driving privileges were suspended

due to [his] failure to pay insurance surcharge[s]." The judge continued:

                    Police learned afterwards that the defendant's
             license had been suspended as a result of his third
             violation of N.J.S.A. 39:4-50, [d]riving [w]hile
             [i]ntoxicated . . . . The underlying DWI convictions
             occurred in October 1999 ([d]riving [w]hile
             [i]ntoxicated, N.J.S.A. 39:4-50), June 2011 ([d]riving
             [w]hile [i]ntoxicated and [r]efusal to [s]ubmit to
             [b]reath [t]esting, N.J.S.A. 39:4-50.4a), and July 2013
             ([r]efusal to [s]ubmit to [b]reath [t]esting).

       Relying on State v. Negran, 178 N.J. 73, 83-85 (2003), the judge explained

that

             a defendant's driving history can be properly
             considered in determining whether a particular
             defendant has engaged in a "pattern of anti-social
             behavior," so long as there is a substantive and temporal
             relationship between the driving record and the instant
             offense. . . . The mere fact that two of the three DWI
             convictions that predicate the present charge occurred
             within the last five years is clearly relevant here, as well
             as the defendant's other failures to comply with motor
             vehicle sanctions as detailed in his driver's abstract.

See Negran, 178 N.J. at 84 (concluding that "an applicant's past driving record

might be relevant" in considering "[t]he extent to which the applicant's crime

constitutes part of a continuing pattern of anti-social behavior[,]" one of the



                                                                            A-0042-17T3
                                          9
factors "[p]rosecutors and program directors shall consider in formulating their

recommendation" on PTI applications pursuant to N.J.S.A. 2C:43-12(e)(8)).

      Finally, the judge rejected defendant's argument that the PTI Director "did

not consider relevant factors because the rejection letter did not discuss every

factor from N.J.S.A. 2C:43-12 and [Rule] 3:28." Citing State v. Wallace, 146

N.J. 576, 584 (1996), the judge acknowledged "New Jersey courts recognize a

presumption that a program director considered all relevant factors[,]" and

concluded that "defendant ha[d] not provided any evidence to rebut that

presumption." This appeal followed.

      We first address the denial of defendant's suppression motion.          Our

"review of a motion judge's factual findings in a suppression hearing is highly

deferential." State v. Gonzales, 227 N.J. 77, 101 (2016). In our review, we

"must uphold the factual findings underlying the trial court's decision so long as

those findings are supported by sufficient credible evidence in the record." State

v. Gamble, 218 N.J. 412, 424 (2014). We defer "'to those findings of the trial

judge which are substantially influenced by his [or her] opportunity to hear and

see the witnesses and to have the "feel" of the case, which a reviewing court

cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v.

Johnson, 42 N.J. 146, 161 (1964)). We owe no deference, however, to the trial


                                                                          A-0042-17T3
                                       10
court's legal conclusions or interpretation of the legal consequences that flow

from established facts. Thus, our review in that regard is de novo. State v.

Watts, 223 N.J. 503, 516 (2015).

      Applying that standard of review, we discern substantial credible evidence

in the record to support the judge's findings of fact and we agree with the judge's

legal determination that the motor vehicle stop was supported by the requisite

level of suspicion. "A lawful stop of an automobile must be based on reasonable

and articulable suspicion that an offense, including a minor traffic offense, has

been or is being committed." Carty, 170 N.J. at 639-40 (citing Delaware v.

Prouse, 440 U.S. 648, 663 (1979)). The burden is on the State to demonstrate

by a preponderance of the evidence that it possessed sufficient information to

give rise to the required level of suspicion. Pineiro, 181 N.J. at 19-20.

      The reasonable suspicion necessary to justify an investigatory stop

requires "some minimal level of objective justification for making the stop."

State v. Nishina, 175 N.J. 502, 511 (2003) (quoting United States v. Sokolow,

490 U.S. 1, 17 (1989)). "The officer 'must be able to "point to specific and

articulable facts which, taken together with the rational inferences from those

facts, reasonably warrant" the intrusion.'" State v. Arthur, 149 N.J. 1, 8 (1997)

(quoting State v. Thomas, 110 N.J. 673, 678 (1988)). In some circumstances,


                                                                            A-0042-17T3
                                       11
the officer may rely on an informant's tip to formulate the reasonable suspicion

needed to justify the stop. See Amelio, 197 N.J. at 212.

      While "[a]n anonymous tip, standing alone, is rarely sufficient to establish

a reasonable articulable suspicion of criminal activity[,]" State v. Rodriguez,

172 N.J. 117, 127 (2002) (citing Alabama v. White, 496 U.S. 325, 329 (1990)),

"'[a] report by a concerned citizen' or a known person is not 'viewed with the

same degree of suspicion that applies to a tip by a confidential informant' or an

anonymous informant," Amelio, 197 N.J. at 212-13 (alteration in original)

(quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000)). Indeed,

"[t]here is an assumption grounded in common experience that such a person is

motivated by factors that are consistent with law enforcement goals[,]" State v.

Davis, 104 N.J. 490, 506 (1986), and "[w]hen an informant is an ordinary

citizen, New Jersey courts assume that the informant has sufficient veracity and

require no further demonstration of reliability[.]" Stovall, 170 N.J. at 362.

      Applying these principles, we agree with Judge Haines that Officer Hoyer

properly relied on Officer Nelson's and Nicole Roberts' tips, in addition to his

own observations, to form the requisite reasonable suspicion to justify the stop.

Defendant argues that "[u]nder the totality of the circumstances . . . , in light of

the acrimonious relationship between the [informants] and . . . defendant, and


                                                                            A-0042-17T3
                                        12
the officer's inability to form an independent determination that a motor vehicle

or criminal offense had been committed, Officer Hoyer's stop" of defendant

"was unconstitutional[,]" particularly since, unlike Amelio, the informants were

not victims. We disagree.

      In Amelio, the defendant's seventeen-year-old daughter

            first called the police for assistance because of a
            domestic disturbance with her father. She then called
            back to report that her father left the house driving his
            car while drunk, and described the vehicle, including
            the license tag number. In both instances, the caller
            provided her name and address to the police.

            [197 N.J. at 215.]

Our Supreme Court concluded that "[t]he details of those reports by a known

citizen gave the police reasonable and articulable suspicion to stop and

investigate the conduct of defendant." Ibid.       In finding no constitutional

violation, the Court reasoned that "[t]he seventeen-year-old was 'in the nature of

a victim or complainant, whose information could be taken at face value

irrespective of other evidence concerning [her] reliability.'" Id. at 213 (second

alteration in original) (quoting State v. Lakomy, 126 N.J. Super. 430, 436 (App.

Div. 1974)). Moreover, "the caller was a known person, who exposed herself to

criminal prosecution if the information she related to dispatch was knowingly

false." Id. at 214. See N.J.S.A. 2C:33-3(a) (criminalizing knowingly and falsely

                                                                          A-0042-17T3
                                       13
reporting emergencies). The rationale of Amelio applies to this case with even

greater force because of the added corroboration gleaned from Officer Hoyer's

own observations in conjunction with two separate and independent informant

tips.

        Turning to the denial of defendant's PTI appeal, admission into the PTI

program is based on a favorable recommendation from the PTI director and the

consent of the prosecutor. State v. Nwobu, 139 N.J. 236, 246 (1995). In

determining whether to recommend or consent to admission, the PTI director

and the prosecutor must consider seventeen factors listed in N.J.S.A. 2C:43-

12(e) and the Rule 3:28 Guidelines.4 The statutory list is not exhaustive and

additional relevant factors may also be considered. Negran, 178 N.J. at 84; State

v. Brooks, 175 N.J. 215, 226-27 (2002), overruled on other grounds by State v.

K.S., 220 N.J. 190 (2015).

        Because of the "interplay" between the PTI director and the prosecutor,

"completely distinct reasoning" is not required and "the prosecutor's reliance on

the program director's statement of reasons is proper." Nwobu, 139 N.J. at 251.


4
  Rule 3:28 has since been repealed in part and reallocated to Rules 3:28-2, -3,
-5, -6, -7, -8, and -10, effective July 1, 2018. Pressler & Veniero, Current N.J.
Court Rules, R. 3:28 (2019). Because these new Rules were not in effect when
defendant's application was considered by the PTI Director, prosecutor, and trial
court, we apply the standards in effect at that time.
                                                                         A-0042-17T3
                                      14
"The statement of reasons must then be evaluated for its adequacy." Ibid.

"Judicial review serves only to check the 'most egregious examples of injustice

and unfairness.'" Negran, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J.

360, 384 (1977)). For that reason, "[t]he scope of judicial review of a decision

to reject a PTI application is 'severely limited[,]'" State v. Hoffman, 399 N.J.

Super. 207, 213 (App. Div. 2008) (quoting Negran, 178 N.J. at 82), and a

"[d]efendant generally has a heavy burden when seeking to overcome a . . .

denial of his admission into PTI[.]" State v. Watkins, 193 N.J. 507, 520 (2008)

(citing Nwobu, 139 N.J. at 246-47).

      A reviewing court may order a defendant into PTI over a prosecutor's

objection only if the defendant "clearly and convincingly establish[es] that the

prosecutor's refusal to sanction admission into the program was based on a

patent and gross abuse of . . . discretion." Wallace, 146 N.J. at 582 (second

alteration in original) (quoting Leonardis, 73 N.J. at 382).         An abuse of

discretion is manifest if defendant shows that a prosecutorial veto "'(a) was not

premised upon a consideration of all relevant factors, (b) was based upon

consideration of irrelevant or inappropriate factors, or (c) amounted to a clear

error in judgment.'" Id. at 583 (quoting Bender, 80 N.J. at 43). In order for such

an abuse of discretion to rise to the level of patent and gross, "it must further be


                                                                            A-0042-17T3
                                        15
shown that the prosecutorial error complained of will clearly subvert the goals

underlying [PTI]." Bender, 80 N.J. at 93. Absent evidence to the contrary, a

reviewing court must assume the prosecutor considered all relevant factors in

reaching its decision. State v. Dalglish, 86 N.J. 503, 509 (1981).

      Applying these principles, we discern no abuse of discretion in the denial

of defendant's PTI application, let alone one that is patent and gross. Defendant

argues the Director relied on "the probability of mandatory incarceration upon

conviction" and "defendant's driving abstract," and failed to consider mitigating

factors, such as steady employment, no prior criminal convictions, and no

evidence of alcohol use at the time of the stop.       Defendant asserts these

considerations are proof that the decision was based on "inappropriate factors"

and "not premised upon a consideration of all relevant factors," resulting in the

subversion of the goals of PTI and "an abuse of his discretion." We disagree

and affirm substantially for the reasons expressed in Judge Haines' cogent

written decision. We also reject defendant's argument that the prosecutor failed

to conduct the required "independent evaluation of the defendant's amenability




                                                                         A-0042-17T3
                                      16
and suitability for PTI." 5 "[T]he prosecutor's reliance on the program director's

statement of reasons [was] proper." Nwobu, 139 N.J. at 251.

      Affirmed.




5
   In her reply brief and during oral argument before the judge, the prosecutor
expounded on her reliance on the PTI Director's reasons for rejecting defendant's
application, noting that the offense carried a mandatory period of incarceration,
defendant violated a recidivist statute, defendant had not been deterred by less
restrictive means, and defendant disregarded the law and orders of the court by
failing to implement necessary countermeasures, such as installing the ignition
interlock device after his 2011 conviction.
                                                                          A-0042-17T3
                                       17
