                        RECORD IMPOUNDED

                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0536-15T2

STATE OF NEW JERSEY,
                                          APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            September 20, 2016
v.
                                            APPELLATE DIVISION
STEVEN RIZZITELLO,

     Defendant-Respondent.
_________________________________

          Submitted June 8, 2016 – Decided September 20, 2016

          Before Judges Fuentes, Koblitz and Gilson.

          On appeal from Superior Court of New Jersey,
          Law Division, Ocean County, Indictment No.
          14-01-00064.

          Joseph D. Coronato, Ocean County        Prosecutor,
          attorney for appellant (Samuel          Marzarella,
          Supervising Assistant Prosecutor,       of counsel;
          William Kyle Meighan, Assistant         Prosecutor,
          on the brief).

          Respondent has not filed a brief.

     The opinion of the court was delivered by

FUENTES, P.J.A.D.

     An   Ocean   County   Grand   Jury    indicted    defendant     Steven

Rizzitello on a single count of fourth-degree operating a motor

vehicle during the period of license suspension for a second or
subsequent conviction for driving while intoxicated (DWI),1 in

violation of N.J.S.A. 2C:40-26(b).                    The State appeals from the

order     of      the     Law    Division,     Criminal      Part,    which      admitted

defendant         into    the     Pretrial    Intervention       (PTI)     Program     and

overrode       the        Ocean     County        Prosecutor's       Office's     (OCPO)

rejection.

       The     prosecutor          states     that     his    decision      to    reject

defendant's         PTI    application        was    based   on:     (1)   defendant's

history      of    defying       court-ordered       suspensions      of   his   driving

privileges for driving while under the influence of alcohol; and

(2) the presumption against admission into PTI that applies to

those    charged         under    N.J.S.A.    2C:40-26(b).         Consequently,       the

prosecutor argues the trial judge erred when she concluded that

the OCPO's rejection of defendant's PTI application amounted to

a patent and gross abuse of discretion.

       After reviewing the record presented to the PTI judge and

keeping      in    mind     the    enhanced       deferential    standard     governing

judicial review of prosecutorial decisions affecting admission

into this diversionary program, we reverse.                          We conclude the

trial judge erred when she overrode the State's rejection of

defendant's PTI application because the prosecutor’s decision

did not constitute "a patent and gross abuse of discretion" as

1
    N.J.S.A. 39:4-50.



                                              2                                  A-0536-15T2
defined by the Supreme Court in State v. Roseman, 221 N.J. 611,

625 (2015) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

However, we reject the OCPO's characterization of the fourth

degree offense under N.J.S.A. 2C:40-26(b) as falling within the

"crimes that are, by their very nature, serious or heinous and

with     respect      to     which    the       benefits     of     diversion       are

presumptively unavailable."                Roseman, supra, 221 N.J. at 622

(quoting State v. Watkins, 193 N.J. 507, 523 (2008)).                      See also

N.J.S.A. 2C:43-12(b); Pressler & Verniero, Current N.J. Court

Rules, Guideline 3(i) on R. 3:28 at 1193 (2016).

                                            I

       On   July   5,      2013,   Brick    Township      Police    Officer    Steven

Gerling issued defendant a summons under N.J.S.A. 39:3-40 for

driving while his driver's license was suspended.                     On September

29, 2013, Officer Gerling reviewed defendant's driver abstract

maintained by the Motor Vehicle Commission (MVC) and discovered

defendant's driver's license was suspended based on his third

DWI2 conviction.        What transpired next is not clear.               It appears

Officer     Gerling      contacted    defendant      to    inform    him   of      this

discovery,     and      defendant    voluntarily       reported     to   the     Brick

Township Police Station.             Defendant was then formally arrested

and charged with a fourth degree crime under N.J.S.A. 2C:40-

2
    N.J.S.A. 39:4-50(a)(3).



                                            3                                 A-0536-15T2
26(b).       He was subsequently released from custody.                              The record

does not disclose whether defendant's release was conditioned

upon     the      payment        of     bail       or     any     other        court-ordered

restrictions.

       An "[a]pplication for pretrial intervention shall be made

at     the     earliest      possible          opportunity,           including            before

indictment, but in any event no later than twenty-eight days

after    indictment."            R.    3:28(h).          Defendant       was     indicted      on

January 14, 2014.           We infer defendant filed his PTI application

outside this regulatory timeframe because the record contains a

consent      order,     entered         by   the        court    on      March       10,    2014,

permitting defendant to file the PTI application no later than

seven days from the date of the order.                          As provided for in Rule

3:28(h),       the    Criminal        Division     Manager       assigned        a    probation

officer      to      interview        defendant         and     gather     information         to

determine       whether     to    recommend         his       admission     into       the    PTI

program.       We derive the following facts from the PTI Director's

letter denying defendant's application for admission into the

program.

       Defendant was sixty-one years old at the time he applied

for admission into PTI in March 2014.                           He had been married to

his current wife for eighteen years and had two adult children

from two prior marriages.               He graduated high school in 1971; for




                                               4                                       A-0536-15T2
the past thirty-four years defendant has been employed fulltime

as   a   butcher     for       a     supermarket          chain.      Defendant    is    an

alcoholic.       He began drinking on a daily basis when he was

seventeen    years      old.         Due   to       his   multiple    DWI    convictions,

defendant has been ordered by municipal courts to participate in

the various alcohol addiction programs provided under N.J.S.A.

39:4-50(b) and (f).

     According to his MVC driver abstract, defendant's first DWI

conviction occurred on November 25, 1987.                          By that time, he had

also been convicted three times for speeding, had an outstanding

warrant for failure to appear, and his driver's license had been

suspended or revoked under N.J.S.A. 39:3-40.                           On December 13,

1987,    less    than      a       month   after      his     first    DWI   conviction,

defendant was again charged with driving while his license was

suspended       or   revoked,         in    violation         of     N.J.S.A.     39:3-40.

Defendant was convicted of his second DWI offense on June 18,

1996.    This second conviction resulted in a mandatory suspension

of his driving privileges for two years.                       His driving privileges

were restored on August 6, 1998.

     On May 29, 2013, defendant was convicted of his third DWI.3

On July 5, 2013, defendant was stopped by Officer Gerling for


     3
         A person convicted of DWI for a third or subsequent time

                                                                              (continued)


                                                5                                 A-0536-15T2
driving while his license was suspended.             The appellate record

does not reveal the circumstances that led defendant to drive

his car that day.     However, in its brief to the trial judge the

OCPO claimed defendant's decision to drive less than two months

after his third DWI conviction "show[s] defendant consciously

disregarded the law stating that he was not allowed to drive.

There was no compelling reason for him to be driving on that

date."   The trial judge agreed with the State in this respect.

Without describing any particular facts, the judge noted: "As I

read the facts . . . the defendant doesn't even suggest that

there was any compelling reason."

     By letter dated March 26, 2014, the vicinage's PTI Director

recommended   against    admitting       defendant   into   PTI.      After


(continued)
          shall be subject to a fine of $ 1,000, and
          shall be sentenced to imprisonment for a
          term of not less than 180 days in a county
          jail or workhouse, 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 and shall thereafter forfeit his
          right to operate a motor vehicle over the
          highways of this State for 10 years. For a
          third or subsequent violation, a person also
          shall be required to install an ignition
          interlock device under the provisions of
          P.L.1999, c.417 (C.39:4-50.16 et al.).

          [N.J.S.A.     39:4-50(a)(3).]




                                     6                             A-0536-15T2
referring to the statutory factors in N.J.S.A. 2C:43-12(e), the

PTI Director noted that the sanctions imposed by the court under

Title 39 had thus failed to deter defendant from continuing to

drive while his license was suspended.                     N.J.S.A. 2C:40-26(b)

"was    put    into    effect    to    deter   people   from   driving       with     a

suspended license."           The PTI Director also emphasized that "[a]

motor vehicle can easily become a lethal weapon in the hands of

those not responsible enough to drive safely."                        In light of

these    concerns,      the     PTI    Director   concluded     that     accepting

defendant's application "would devalue the seriousness of your

actions and send the wrong message to others who have committed

similar offenses."

       Under the review process established by our Supreme Court,

"[t]he prosecutor shall complete a review of the application and

inform   the    court    and    defendant      within   fourteen      days   of    the

receipt of the criminal division manager's recommendation."                          R.

3:28(h) (emphasis added).             Based on the record provided to us in

this    appeal,   we    infer    the    OCPO   did   not    conduct    the    review

mandated by rule.         Based on a letter-brief dated March 11, 2015

the OCPO sent to the trial judge, we infer defendant appealed

the PTI Director's denial directly to the trial court.

       The matter came before the trial judge on April 15, 2015.

The prosecutor argued, as she does here, that the fourth degree




                                          7                                  A-0536-15T2
offense under N.J.S.A. 2C:40-26(b) should carry a presumption

against admission into PTI pursuant to Guideline 3(i).                      After a

lengthy,     on-the-record       discussion     with     counsel,     the      judge

directed     the   prosecutor       to    reexamine     her   position      against

admitting defendant into PTI after considering and applying the

statutory factors in N.J.S.A. 2C:43-12(e).

      The prosecutor submitted a letter-brief dated July 21, 2015

to the trial judge addressing the seventeen statutory factors in

N.J.S.A. 2C:43-12(e).        The matter returned for oral argument on

September 23, 2015.        In support of her decision to override the

prosecutor's rejection of defendant's PTI application, the trial

judge   found      the    OCPO   had      minimized     defendant's      age     and

motivation    to   seek    treatment      for   his    alcohol   dependency       as

factors favoring admission under N.J.S.A. 2C:43-12(e)(3).                        The

judge also found factor four, N.J.S.A. 2C:43-12(e)(4), relevant

because it requires the prosecutor to consider "the desire of

the   complainant    or    victim    to    forego     prosecution."      In     this

respect, the judge found:

           [T]his offense is essentially a victimless
           crime.    As indicated, there was no other
           person involved. There . . . wasn't even a
           motor vehicle violation.      There were no
           injuries,   accidents,  or   other  .  .   .
           aggravating    factors  involved   in   this
           incident.




                                          8                               A-0536-15T2
      The judge viewed defendant's addiction as "the root of his

problem."       Thus, the judge was critical of the                  prosecutor's

failure    to   give    "neither      positive     nor    negative     weight"   to

defendant's     alcoholism     under    factor     five   and   six.      N.J.S.A.

2C:43-12(e)(5)-(6).          Factor    eight     requires   the   prosecutor     to

consider      "[t]he    extent     to     which     the     applicant's      crime

constitutes      part   of    a    continuing       pattern     of     anti-social

behavior."      N.J.S.A. 2C:43-12(e)(8).          The prosecutor argued this

factor weighed heavily against defendant's admission into PTI.

The   judge     disagreed.        After       reviewing   defendant's      driving

history as reflected in the MVC abstract, the judge made the

following observations:

            Here, he's not even stopped for a moving
            violation, but a license check.       There's no
            question that the defendant's conduct in
            driving while he was revoked exhibited very
            poor judgment.       He knew his license was
            suspended.    He doesn't contest that.       But
            there   are     no    facts    to    support   a
            determination by the Prosecutor that the
            defendant   has    a   history    of  antisocial
            behavior. Similarly, there's no aggravating
            factors that demonstrate the harm to society
            or the need to prosecute as claimed by the
            State, other than the double counting of the
            elements of this offense. At a minimum, the
            defendant had to have at least two [DWI's]
            to be charged with this offense.

            Without more substantially distinguishing
            facts or circumstances, this does not create
            a history of antisocial behavior.




                                          9                               A-0536-15T2
      Ultimately, the judge viewed the prosecutor's position as

mistakenly driven by the nature of the offense, without giving

due consideration to defendant's individual circumstances.                             The

judge    relied      heavily       on     her       assessment      of       defendant's

"background,        character,          motivation,        and      potential          for

rehabilitation."       Based on these findings, the judge stated she

was   satisfied     that     defendant        had    "clearly     and        convincingly

established" the prosecutor's decision to reject his application

into PTI amounted "to a patent and gross abuse of discretion,

which    clearly    subverts       the    underlying       goals        of    [the]    PTI

Program."

                                          II

      The   purpose     of     the      PTI     Program    is      to    provide       the

opportunity    to    certain       defendants        to   avoid    the       traditional

prosecutorial       route     by     receiving        rehabilitative            services.

Guideline 1 to R. 3:28.            The Supreme Court and the Legislature

created an application process requiring input and participation

from both the judicial branch, through the Criminal Division

Manager, Rule 3:28(b), and the executive branch, through the

county   prosecutor.         N.J.S.A.      2C:43-12.        A     determination        for

suitability and participation in the PTI program must be made

"under the Guidelines for PTI provided in Rule 3:28, along with




                                          10                                     A-0536-15T2
consideration      of     factors     listed       in     N.J.S.A.     2C:43-12(e)."

Roseman, supra, 221 N.J. at 621.

      Once a defendant has submitted an application for admission

into PTI, the Criminal Division Manager is required to "complete

the evaluation and make a recommendation within twenty-five days

of the filing of the application."                      R. 3:28(h).         After the

Criminal    Division      Manager     has     submitted     this     recommendation,

"the prosecutor shall complete a review of the application and

inform    the    court    and     defendant      within    fourteen    days    of   the

receipt     of   the     criminal    division       manager's      recommendation."

Ibid. (emphasis added).            Here, the record reflects that the OCPO

did not adhere to the rule's mandate.                   The record only contains

the prosecutor's submissions to the PTI court in response to

defendant's appeal.            The language in Rule 3:28(h) is both clear

and   emphatic.          The    prosecutor       must     independently       evaluate

whether a defendant should be admitted into PTI.

      The   Supreme       Court     has   also     acknowledged       the    mandatory

nature of the prosecutor's participation at this phase of the

PTI-admission process. "[A] PTI determination requires that the

prosecutor make an individualized assessment of the defendant

considering his or her 'amenability to correction' and potential

'responsiveness to rehabilitation.'"                    Roseman, supra, 221 N.J.

at 621-22 (quoting Watkins, supra, 193 N.J. at 520).                        The OCPO's




                                            11                                A-0536-15T2
failure to perform this important, legally required evaluation

is unacceptable.               We expect the trial court to enforce this

aspect of the PTI Program's application process to ensure the

reviewing        judge    has        a    complete          record        before     deciding       a

defendant's challenge to the denial of his or her application.

Notwithstanding this oversight, the record before us contains

sufficient        facts        to        enable        us     to     reach       a       definitive

determination        of    the       PTI    judge’s          decision       to     overturn      the

prosecutor’s veto.

      The    State       argues      the    PTI        judge       erred    by   not      reviewing

defendant's application as involving an offense that carries a

presumption against admission into PTI.                              We disagree.           As the

Court     explained       in     Roseman,            both     N.J.S.A.       2C:43-12(b)         and

Guideline        3(i)     specify         the     offenses          that     carry        statutory

presumptions against admission into PTI.                                  Roseman, supra, 221

N.J. at 622.             Under N.J.S.A. 2C:43-12(b)(2)(b), the following

types of crime carry a presumption against admission into PTI:

(1)   "any   crime        or    offense         involving          domestic      violence,"        as

defined     in    N.J.S.A.          2C:25-19         of     the    Prevention        of    Domestic

Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, including crimes

committed by a defendant while subject to temporary or permanent

restraints       issued        pursuant         to     the        PDVA;    and     (2)     offenses

involving violence or the threat of violence, or offenses where




                                                  12                                       A-0536-15T2
the    defendant   "is     armed   with    and   uses       a     deadly   weapon       or

threatens    by    word    or   gesture     to    use       a     deadly   weapon[.]"

Guideline    3(i),       meanwhile,   creates          a     presumption         against

admission into PTI for: (3) any "first- or second-degree crime,

[and] [(4)] any crime that is a breach of the public trust."

Roseman, supra, 221 N.J. at 622.

       The fourth degree offense that defendant is charged with

committing here does not carry a presumption against admission

into PTI under either N.J.S.A. 2C:43-12(b) or Guideline 3(i).

As our Supreme Court has explained, "When interpreting statutory

language, the goal is to divine and effectuate the Legislature's

intent."     Perez    v.    Zagami,   LLC,       218       N.J.    202,    209     (2016)

(quoting State v. Buckley, 216 N.J. 249, 263 (2013)).                        As such,

"[t]here is no more persuasive evidence of legislative intent

than the words by which the Legislature undertook to express its

purpose; therefore, we first look to the plain language of the

statute."    Id. at 209-10.        Here, nothing in the text of either

N.J.S.A. 2C:43-12(b) or Guideline 3(i) supports classifying the

fourth degree offense codified in N.J.S.A. 2C:40-26(b) as the

type of crime that carries a presumption against admission into

PTI.     If the Legislature had intended this crime to carry a

presumption against admission into PTI, it would have stated it

plainly in the text of N.J.S.A. 2C:43-12(b).




                                      13                                         A-0536-15T2
     This conclusion, of course, does not answer the question

underlying this appeal: Whether there is sufficient basis to

conclude        the      prosecutor's         rejection         of    defendant's        PTI

application amounted to a patent and gross abuse of discretion.

In   our    view,        the   PTI    judge        did    not   use    the     appropriate

deferential standard of review when she analyzed and answered

this question in the affirmative.

     As the Court reaffirmed in Roseman, "PTI is essentially an

extension of the charging decision, therefore the decision to

grant      or     deny     PTI   is     a     'quintessentially              prosecutorial

function.'"        Roseman, supra, 221 N.J. at 624 (quoting State v.

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

                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 (citations omitted).]

     To establish the prosecutor's rejection of defendant’s PTI

application amounted to a patent and gross abuse of discretion,

a defendant must prove, by clear and convincing evidence,

                that a prosecutorial veto (a)                        was     not
                premised upon  a   consideration                      of     all



                                              14                                   A-0536-15T2
            relevant factors, (b) was based upon a
            consideration of irrelevant or inappropriate
            factors, or (c) amounted to a clear error in
            judgement. . . . 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 625 (quoting Bender, supra, 80 N.J.
            at 93).]

    Here,        the   record   does   not    support     the     PTI   judge’s

conclusion that defendant satisfied this enhanced deferential

standard    of    judicial   review.    A    careful    reading    of   the   PTI

judge's analysis shows the judge misunderstood the conduct the

Legislature intended to deter when it adopted N.J.S.A. 2C:40-

26(b).     This threshold misperception tainted the judge’s review

of how the prosecutor applied the statutory factors in N.J.S.A.

2C:43-12.     Under N.J.S.A. 2C:40-26(b), a person commits a fourth

degree crime when he or she operates a motor vehicle during the

period of license suspension in violation of N.J.S.A. 39:3-40,

if the underlying basis of the suspension or revocation was for

a second or subsequent violation of N.J.S.A. 39:4-50 or N.J.S.A.

39:4-50.4a.      To establish culpability under N.J.S.A. 2C:40-26(b)

and trigger the mandatory 180-day term of incarceration, the

State must prove the individual was driving while serving a

court-imposed term of license suspension.               State v. Perry, 439

N.J. Super. 514, 525 (App. Div.), certif. denied, 222 N.J. 306



                                       15                               A-0536-15T2
(2015).      A person who drives before the MVC has administratively

restored his or her driving privileges, but after completing the

court-ordered        suspension    period,         is    not    engaging     in    criminal

conduct under N.J.S.A. 2C:40-26b.                  Ibid.

       Here, the PTI judge's analysis was heavily influenced by

defendant’s alleged attempts to address his alcohol addiction.

The judge, therefore, was critical of the prosecutor's position

minimizing the significance of defendant's efforts to address

his alcoholism by participating in addiction treatment programs.

The   judge’s       criticism    of    the    prosecutor’s          position       in    this

respect was misplaced in two ways.                      First, the only evidence of

defendant’s        participation      in     alcohol          treatment     programs     was

through      the    Intoxicated       Drivers          Resource     Center     (IDRC),      a

mandatory aspect of the statutory penalties imposed by the court

under       N.J.S.A.      39:4-50(b).             Second,         defendant’s       alcohol

addiction did not play any role in his decision to drive his car

in    defiance      of    a   court-ordered            ten-year    suspension       of    his

driving privileges for his third DWI conviction.                            Defendant was

sober   and    in    complete     control     of        his   faculties     when    he    was

stopped by Officer Gerling on July 5, 2013.

       In    State       v.   Sylvester,          we     rejected     the     defendant’s

collateral attack of her conviction under N.J.S.A. 2C:40-26(b).

437 N.J. Super. 1, 7 (App. Div. 2014).                          In the course of our




                                             16                                    A-0536-15T2
analysis of this issue, we noted that “[t]his was not a case in

which an unforeseen emergency compelled defendant to undertake a

course of action that she would not have taken under ordinary

circumstances."          Ibid.      Thus, "[a]bsent any mitigation, [the

defendant's]        actions      can     be       reasonably      characterized         as

contemptuous of the court's authority.”                   Ibid.

       Here,    defendant’s       defiance        of   court-ordered         suspensions

reflects the same contempt of the court’s authority.                          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.                            The record also

shows     defendant      has     multiple        convictions      of    driving    while

suspended      in   violation     of    N.J.S.A.       39:3-40.         In   short,    his

decision to drive while his license was suspended was not an

isolated or aberrant event.                 So far, the sanctions available

under Title 39 have not deterred defendant from driving while

suspended for a DWI conviction.

       "The    primary    purpose       behind      New   Jersey's       drunk-driving

statutes is to curb the senseless havoc and destruction caused

by intoxicated drivers."               State v. Tischio, 107 N.J. 504, 512

(1987).        Since the Court decided Tischio nearly thirty years

ago,    the      penalties       for     driving       while      intoxicated         have

consistently increased in severity as a means of deterring "the




                                            17                                  A-0536-15T2
senseless carnage on our highways" caused by those who drive

drunk.    Ibid. (quoting State v. D'Agostino, 203 N.J. Super. 69,

72 (Law Div. 1984)).                 The      Legislature's              decision       to

criminalize the act of driving while one’s license is suspended

for a second or subsequent DWI conviction is the latest addition

to this arsenal of deterrence.

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

            [State v. Harris 439 N.J. Super. 150, 160
            (App. Div. 2015).]

    The     PTI        judge's     decision      to   override      the    prosecutor's

rejection    of    defendant's        PTI    application       failed     to   give   due

deference to these public policy considerations.                         The judge also

failed to defer to the prosecutor's consideration of defendant's

history     of    Title       39    violations;        these     violations         reveal

defendant’s       multiple       instances       of   defiance      of    court-ordered

suspensions       of    his   driving       privileges.        In    light     of   these




                                            18                                  A-0536-15T2
factors, the prosecutor's rejection did not constitute a patent

and gross abuse of discretion.   Roseman, supra, 221 N.J. at 627.

    Reversed and remanded.




                                 19                       A-0536-15T2
