                        NOT FOR PUBLICATION WITHOUT THE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-3953-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WILLIAM O'ROURKE, a/k/a
WILLIAM J. OROURKE,

        Defendant-Appellant.

_______________________________

              Submitted June 21, 2017 – Decided September 5, 2017

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              15-04-0209.

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

              Michael   H.   Robertson,   Somerset   County
              Prosecutor, attorney for respondent (Paul H.
              Heinzel, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        A Somerset County grand jury returned Indictment No. 15-04-

209 against defendant William O'Rourke, charging him with one
count of fourth degree operating a motor vehicle during a period

of license suspension for a second or subsequent conviction for

driving     while   intoxicated      (DWI),      N.J.S.A.     2C:40-26(b).        A

Montgomery Township Police Officer also issued defendant summonses

for DWI, N.J.S.A. 39:4-50; DWI in a school zone, N.J.S.A. 39:4-

50(g); driving while his license was suspended, N.J.S.A. 39:3-40;

and driving a motor vehicle with an expired registration, N.J.S.A.

39:3-4.

      Defendant     applied     for       admission      into    the     Pretrial

Intervention Program (PTI) in connection with the single count in

the   indictment.      The    PTI    Director      in   the   Criminal   Division

Manager's    Office   recommended         that   defendant's    application      be

denied because his record indicated that his present offense

"constitutes [an] ongoing pattern of anti-social behavior."                    The

Somerset County Prosecutor's Office (SCPO) concurred with the PTI

Director's    recommendation        and   denied    defendant's    application.

Defendant thereafter submitted additional information to the SCPO

and asked the prosecutor to reconsider his decision based on the

particular hardship defendant's confinement would cause to his

wife.   After reviewing defendant's supplemental presentation, the

prosecutor found no legal basis to reconsider his initial position.

      Defendant appealed the prosecutor's rejection of his PTI

application to the Presiding Judge of the Criminal Part.                     After

                                          2                               A-3953-15T2
reviewing the parties' legal memoranda and considering the oral

argument    presented   by   counsel,     the   judge     upheld    the     SCPO's

rejection    of   defendant's   PTI   application.          The    judge     found

defendant did not show, by clear and convincing evidence, that the

prosecutor's decision amounted to a patent and gross abuse of

discretion.   Defendant thereafter negotiated an agreement with the

State through which he pleaded guilty to one count of the fourth

degree offense defined in N.J.S.A. 2C:40-26(b) and to DWI under

N.J.S.A. 39:4-50.    The State agreed to dismiss the remaining Title

39 summonses and recommend the court sentence defendant to a term

of probation not to exceed three years, conditioned upon defendant

serving 364 days in the Somerset County Jail, 180 days of which

to be served without parole as mandated by N.J.S.A. 2C:40-26(b).

Defendant was free to argue for a lesser sentence within the

statute's mandatory parole restriction.

     The    court   sentenced   defendant       to   a   three-year    term       of

probation, conditioned upon serving 180 days without parole in the

county jail as mandated by N.J.S.A. 2C:40-26(b). On his conviction

for his fourth DWI, the judge sentenced defendant to a term of 180

days in the county jail, to run concurrent to the term imposed for

his fourth degree criminal conviction, ordered him to pay a $1000

fine, revoked his driving privileges for ten years, and imposed

the mandatory monetary penalties under N.J.S.A. 39:4-50(a)(3).

                                      3                                    A-3953-15T2
    Defendant now appeals raising the following arguments:

               POINT ONE

               AT A MINIMUM, O'ROURKE'S PTI APPLICATION
               SHOULD BE RECONSIDERED BECAUSE THE PROSECUTOR
               REJECTED     IT    BASED    UPON     IMPROPER
               CONSIDERATIONS.

                      A.   The Prosecutor Applied A Non-
                      Existent Presumption against PTI
                      for the Charge of Driving While
                      Suspended for a Second or Subsequent
                      DWI Offense.

                      B.   The Prosecutor Tendentiously
                      Misinterpreted Various Statutory
                      PTI Factors.

               POINT II

               O'ROURKE SHOULD HAVE BEEN ORDERED INTO PTI
               BEECAUSE [SIC] THE OFFENSE WAS A FOURTH-DEGREE
               DRIVING OFFENSE, HE WAS SEEKING TREATMENT FOR
               HIS ROOT PROBLEM OF ALCOHOLISM, AND HIS WIFE
               WAS SUFFERING FROM DEMENTIA.

    We    reject       these   arguments     and     affirm.      We   gather   the

following facts from the record developed before the Criminal

Part.

    At 3:25 p.m. on Wednesday, January 7, 2015, Montgomery Police

Officer    Ryan       Gray   responded     to    Montgomery    High    School    to

investigate a report of an intoxicated driver.                 When he arrived,

Gray found a Buick Riviera illegally parked at the curb of the

office    of    the    Montgomery   Board       of   Education.    The   car    was

unoccupied with the engine running.                  Gray conducted a computer


                                         4                                A-3953-15T2
check of the vehicle's license plate number and discovered it was

registered to defendant, but the registration card had expired.

       Gray entered the Board of Education Office and found defendant

seated in a chair.      He immediately noticed that defendant had a

strong odor of alcohol and his face was flushed.            When Gray spoke

with    defendant,     he    noticed       defendant   spoke   slowly     and

deliberately.        Based   on   these     observations,   Gray   concluded

defendant was under the influence of alcohol.           Defendant told Gray

he left the car parked because he anticipated he would return

within thirty seconds.       It is undisputed defendant was unable to

successfully complete the field sobriety tests Gray asked him to

perform at the scene.        Defendant's blood alcohol concentration

(BAC) was .25%, or more than three times the .08% presumptive

level of intoxication under N.J.S.A. 39:4-50(a).

       On January 30, 2012, nearly three years before this encounter

with Officer Gray, defendant was convicted on his third DWI, was

sentenced to serve 180 days in the county jail, and had his license

revoked for ten years.        Defendant was also charged with DWI on

October 17, 1989, and March 16, 2005 and subsequently convicted

of both.     In addition to these charges, his driver's abstract

shows that over the past thirty years, defendant has been convicted

of speeding, reckless driving, unsafe operation of a motor vehicle,

and a variety of other moving violations.              Defendant was nearly

                                       5                             A-3953-15T2
fifty-three years old when he was arrested and convicted for his

fourth DWI charge.

       In support of his PTI application, defendant submitted a

letter dated February 20, 2015 from Turning Point, a program

dedicated to the "compassionate treatment of alcoholism and drug

dependency."      The author of the letter, who described himself as

a "Primary Counselor," wrote to inform the Montgomery Municipal

Court Supervisor that defendant was "presently attending Turning

Point's short-term variable length of stay treatment facility for

chemical dependency."        (Emphasis added).      According to the letter,

defendant entered this program on January 22, 2015, fifteen days

after his arrest for his fourth DWI charge.            The program will give

defendant "an aftercare recommendation and [he] will also be

encouraged to attend daily NA/AA meetings."

       The record before us includes the supplemental information

that    defense   counsel    submitted    to    induce   the    prosecutor    to

reconsider    his   original     decision      to   reject   defendant's     PTI

application.      In a letter addressed directly to the prosecutor,

defense counsel asserted that defendant is a married father of two

minor   children.      His    fifty-three-year-old       wife    suffers   from

Alzheimer's disease. Counsel attached a letter from a neuroscience

institute to support this claim.               Counsel states: "While Mr.

O'Rourke might be an alcoholic, he is an integral part of his

                                      6                                A-3953-15T2
wife's care.       Six months of incarceration will only serve to

completely destroy this family that is already teetering on the

edge."

       In his response acknowledging the receipt of defendant's

application for reconsideration, the prosecutor stated:

              First, allow me to express my sincere
              condolences to Mr. O'Rourke and his family
              regarding the horrible circumstances in which
              they find themselves.    However, despite the
              fact that the State recognizes the additional
              hardship incarceration will occasion upon
              defendant and his family, given the offenses
              defendant is charged with . . . both statutes[1]
              require mandatory incarceration.      Moreover,
              while it is not the "policy" of the Somerset
              County Prosecutor's Office to reject all
              persons charged with N.J.S.A. 2C:40-26(b), it
              certainly [is] true that in most instances[,]
              such as this case, the State will reject those
              persons whose driving history demonstrates an
              ongoing   course   of   antisocial    behavior,
              combined with present charges that demonstrate
              a   lack   of  amenability    to   short   term
              rehabilitation.

       The judge who decided defendant's appeal in the Criminal Part

ultimately accepted the State's position.           The judge concluded

that    the    prosecutor   had   carefully   reviewed   defendant's   PTI

application and found support for its rejection in the factors

codified in N.J.S.A. 2C:43-12(e).          The prosecutor found factor

two,     which   requires   a     fact-sensitive   evaluation,   supports



1
    N.J.S.A. 39:4-50(a)(3) and N.J.S.A. 2C:40-26(b).

                                      7                           A-3953-15T2
rejection.    Defendant had a .25% BAC at the time of his arrest for

DWI; and this arrest occurred less than three years after his ten-

year suspension of his driving privileges for his third DWI

conviction.     As for factor three, which addresses the motivation

and age of the defendant, the State asserts defendant's age

eliminates    the     possibility   that     this   was   a   mere    youthful

indiscretion. Instead, defendant's age reveals he has had multiple

opportunities to address his alcohol addiction and its disruptive

consequences.        Factor four, which examines the desire of the

complainant     or    victim   to   forego    prosecution,     also     favors

rejection.     The Legislature's adoption of N.J.S.A. 2C:40-26(b)

clearly shows it seeks to deter drunk driving in our State by

imposing a mandatory minimum sentence of incarceration.

     The PTI Judge also found support for the State's reliance on

N.J.S.A. 2C:43-12(e) factors five, six, and seven.               Defendant's

history of Title 39 violations speaks for itself.             As this court

has made clear:

          The Legislature's purpose in requiring a
          mandatory period of "imprisonment" for this
          offense, with no possibility of parole, is
          also clear. Alternatives to jail, like the
          inpatient    drug   rehabilitation    program
          involved in [State v. French, 437 N.J. Super.
          333 (App. Div. 2014)], or the home detention
          and community service programs at issue here,
          do not protect the public in the same way as
          incarceration.     This     public     safety
          consideration is especially relevant in the

                                     8                                 A-3953-15T2
            case of a defendant who loses his or her
            driving privileges for DWI, but then continues
            to drive despite the license suspension.

            [State v. Rizzitello, 447 N.J. Super. 301, 315
            (App. Div. 2016) (quoting State v. Harris, 439
            N.J. Super. 150, 160 (App. Div. 2015)).]

       Defendant's    argument    in    favor   of     overturning    the     trial

court's ruling relies heavily on defendant's attempt to seek

treatment for his alcoholism.          This argument is unavailing because

it fails to comprehend what the Legislature intended when it

adopted N.J.S.A. 2C:40-26(b).          As we noted earlier, defendant has

been given the opportunity to seek treatment for his addiction on

multiple occasions.     Indeed, when he was sentenced in 2012 for his

third DWI conviction, he was sentenced to 180 days in the county

"except that the court may lower such term for each day, not

exceeding 90 days, served participating in a drug or alcohol

inpatient    rehabilitation      program     approved     by   the   Intoxicated

Driver Resource Center[.]"          N.J.S.A. 39:4-50(a)(3).            (Emphasis

added).    The record reflects defendant served all of the 180 days

in the county jail.

       Defendant's fourth DWI conviction is consistent with his

nearly    life-long    defiance    of       judicial    authority    and      utter

disregard for the welfare of his fellow motorists and pedestrians,

whom he places in clear danger when he drives a car with a .25%

BAC.     Our Supreme Court made clear that "PTI is essentially an

                                        9                                   A-3953-15T2
extension of the charging decision, therefore the decision to

grant or deny PTI is a 'quintessentially prosecutorial function.'"

State v. Roseman, 221 N.J. 611, 624 (2015) (quoting State v.

Wallace, 146 N.J. 576, 582 (1996)).               Therefore,

           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.'"

           [Id. at 624-25 (quoting Wallace, supra, 146
           N.J. at 582).]

     Here,      the   trial    court   correctly      applied     this   enhanced

standard   of    review   to    uphold      the    prosecutor's    rejection     of

defendant's PTI application.

     Affirmed.




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