                        NOT FOR PUBLICATION WITHOUT THE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-2565-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MATTHEW DRUMMOND,

        Defendant-Appellant.


              Argued August 29, 2018 – Decided September 5, 2018

              Before Judges Alvarez and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 16-
              02-0168.

              Scott C. Buerkle           argued    the    cause    for
              appellant.

              Milton S. Leibowitz, Special Deputy Attorney
              General/Acting Assistant Prosecutor, argued
              the cause for respondent (Michael A. Monahan,
              Acting Union County Prosecutor, attorney;
              Milton S. Leibowitz, of counsel and on the
              brief).

PER CURIAM

        Defendant Matthew Drummond entered a guilty plea to fourth-

degree operating a motor vehicle during a period of license
suspension, N.J.S.A. 2C:40-26(b).          The Law Division judge stayed

his January 13, 2017 sentence, including the statutorily mandated

180-day county jail term, pending this appeal of the court's order

denying    him   admission   into    the   pretrial    intervention      (PTI)

program, N.J.S.A. 2C:43-12 to -22 and Rule 3:28.          The judge denied

the application by order dated July 21, 2017, and then again on

defendant's reconsideration motion on September 12, 2017.               We now

affirm and dissolve the stay, effective ten days from the release

of this decision.

     On December 11, 2015, a Union County police officer stopped

defendant after a random look-up of his license plate, as a result

of which the officer learned defendant's license had been suspended

approximately two months earlier for driving while intoxicated

(DWI), N.J.S.A. 39:4-50.     When sentencing defendant, the municipal

court judge not only suspended defendant's driving privileges as

called for by the statute, he also ordered defendant to install

an interlock device.     See N.J.S.A. 39:4-50.17.        Defendant did not

comply with that aspect of his sentence.

     Defendant had been previously convicted of DWI on February

20, 2013.    Thus, he was indicted for operating a motor vehicle

while under a period of a license suspension for a second DWI.

     Defendant's motor vehicle history dates back to 1999, and

includes    violations   such   as    speeding   and    failure   to     carry

                                      2                                A-2565-16T1
insurance.     His license was suspended during that time on seven

occasions according to defendant, ten according to the State:             in

2000, 2002, 2003, 2004, 2008, and 2010.       Defendant is thirty-five

years old, college educated, fully employed, a decorated veteran,

and has no prior criminal history.

     Initially, the county PTI program director recommended that

defendant be denied admission because of his driving and automobile

license history, and because the charge carries "a mandatory jail

term" and is therefore "not considered to be appropriate for

inclusion in the PTI program."      The prosecutor's rejection letter

detailed defendant's employment status and lack of a criminal

conviction history, but also touched upon his driver's abstract

information.    It further cited to factors one, two, fourteen, and

seventeen1 of N.J.S.A. 2C:43-12(e) in support of the decision to

deny defendant admission into the program.             Although focusing

substantially    on   the   deterrent   purpose   of   the   statute,   the

rejection letter also noted the proximity in time between license

suspension and motor vehicle stop, and defendant's failure to



1
     Factor one is the nature of the offense, N.J.S.A.
2C:43-12(e)(1); factor two is the facts of the case, N.J.S.A.
2C:43-12(e)(2); factor fourteen is whether the crime demands
prosecution over supervisory treatment, N.J.S.A. 2C:43-12(e)(14);
factor seventeen is whether the harm caused by abandoning
prosecution would outweigh benefits of supervisory treatment,
N.J.S.A. 2C:43-12(e)(17).

                                    3                              A-2565-16T1
install the interlock device.          Defendant had "no emergent reason"

for driving, or any explanation regarding the reason he had not

chosen   an    alternative     means     of       transportation.       The    letter

concluded that the "harm done to society by abandoning criminal

prosecution in this matter outweighs the benefits to society from

channeling defendant into a diversionary supervisory treatment

program."

      The State's letter brief in opposition to the motion to compel

admission     reiterated     earlier     statements         regarding   defendant's

driving history, as well as his personal circumstances.                    The brief

also reiterated that the prosecutor was not applying a per se rule

of   exclusion.       In     balancing     defendant's        situation    and     the

circumstances of the offense within the framework of the PTI

guidelines, the State did not consider rejecting defendant from

the program to be an abuse of discretion.

      In his initial July 21, 2016 decision, the judge reviewed the

State's reasons for rejection, including defendant's motor vehicle

history.      The judge found the State had weighed all the relevant

factors pursuant to the guidelines, and that the denial was lawful.

Defendant     had   failed    to   prove      a    patent    and   gross   abuse     of

discretion.

      Citing to the standard for motions for reconsideration, the

judge denied that later application as well. Although the criminal

                                         4                                    A-2565-16T1
division manager may have applied a per se rule in rejecting

defendant, the State clearly had not.                      The prosecutor made a

particularized independent decision in which all relevant factors

were    taken     into     account.          Thus,    the     judge     denied    the

reconsideration application.

       Now on appeal, defendant raises the following points for our

consideration:

            POINT I: The PTI Director Employed      Per Se
            Policy to Reject Mr. Drummond From PTI for the
            Offense of Driving While Suspended on a Second
            of Subsequent DWI

            POINT II: The State Employed a Per Se Denial
            of Acceptance Into PTI for the Offense of
            Driving While Suspended on a Second or
            Subsequent DWI

            POINT III: The State Failed to Consider all
            of the Criteria Set Forth in N.J.S.A. 2C:43-
            12

            POINT IV: The State Considered Inappropriate
            Factors Against Mr. Drummond

            POINT V: The Trial Court Improperly Found
            that "pursuant to the Clear Mandatory Language
            In N.J.S.A. 2C:40-26, if a defendant who is
            charged with committing that offense is
            admitted into PTI, this would run counter to
            the clear legislative intent of the statute."

       We consider defendant's points to be so lacking in merit as

to   warrant    little     discussion    in    a    written    opinion.     See    R.

2:11-3(e)(2). Defendant has failed to establish by clear and

convincing      evidence    a   patent   and       gross   abuse   of   discretion.

                                         5                                  A-2565-16T1
Contrary to the points framed on appeal, this was not a per se

rejection by the prosecutor of defendant's application.

     State v. Rizzitello, concerning N.J.S.A. 2C:40-26(b), among

other    things,    stands     for   the     proposition     that    "[t]he

fourth[-]degree offense . . . does not carry a presumption against

admission into PTI under either N.J.S.A. 2C:43-12(b) or Guideline

3(i)."   477 N.J. Super. 301, 312 (App. Div. 2016).             The trial

judge in Rizzitello admitted defendant into the PTI program, which

the State appealed and we reversed.          Per se exclusion, based on

the nature of the offense and mandatory jail time was improper,

however, other circumstances supported the State's rejection of

defendant's application.       "Defendant has not presented any facts

that would mitigate or explain his decision to drive his car less

than two months after his license was suspended for his third DWI

conviction. . . .    [D]efendant has multiple convictions of driving

while suspended in violation of N.J.S.A. 39:3-40."            Id. at 315.

Citing State v. Tischio, 107 N.J. 504, 512 (1987), Rizzitello

referenced   the    primary    purpose     behind   the   drunken   driving

statutes, "to curb the senseless havoc and destruction caused by

intoxicated drivers."

     Here, although defendant has only two DWI convictions, while

Rizzitello had three, defendant also has a lengthy and troubling

motor vehicle history.        He not only drove less than two months

                                     6                              A-2565-16T1
after his suspension for his second DWI, he failed to install the

interlock device and provided neither an explanation, much less

justification, for his reason for driving.

     As   we   said   in    Rizzitello,       to   meet   the   high   burden    of

demonstrating a gross and patent abuse of discretion, a defendant

must demonstrate:

           that a prosecutorial veto (a) was not premised
           upon consideration of all relevant factors,
           (b) was based upon a consideration of
           irrelevant or 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.

           [Rizzitello, 477 N.J. Super. at 313 (citations
           omitted).]

     Defendant    has      not   met   this    heavy      burden,   nor   has    he

established that the prosecutor's decision clearly subverted the

goals underlying PTI.       Conversely, defendant's admission would not

serve the goals of PTI set forth under N.J.S.A. 2C:43-12(a)(1)-(5).

     Affirmed.




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