                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5439-17T4

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

ROBERT SPINELLI,

     Defendant-Respondent.
_________________________

                    Argued February 6, 2019 – Decided August 7, 2019

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 18-05-
                    0690.

                    Joie D. Piderit, Assistant Prosecutor, argued the cause
                    for appellant (Andrew C. Carey, Middlesex County
                    Prosecutor, attorney; Patrick F. Galdieri, II, Assistant
                    Prosecutor, of counsel and on the brief).

                    Thomas P. Ehrlich argued the cause for respondent
                    (Ehrlich Law Offices, attorneys; Thomas P. Ehrlich, on
                    the brief).

PER CURIAM
      Pursuant to Rule 3:28-6(c),1 the State appeals from the order of the Law

Division, Criminal Part enrolling defendant Robert Spinelli into the Pretrial

Intervention (PTI) program over the objection of the Middlesex County

Prosecutor's Office (MCPO). The State argues defendant did not prove, by clear

and convincing evidence, that the prosecutor's decision to reject defendant's PTI

application constituted a patent and gross abuse of discretion. We agree with

the State's position and reverse.

      We derive the following facts from the record the parties developed before

the Criminal Part.

                                         I

                                    The Accident

      At approximately seven o'clock in the evening on December 13, 2017, a

white SUV driven by Eric Johnson was stopped in the northbound lane of Route

27 in the Township of South Brunswick, with its left-turn signal on, indicating


1
  At the time defendant applied for admission into PTI, the standards governing
his eligibility were codified in Rule 3:28 and related Guidelines. Effective July
1, 2018, the Supreme Court repealed these rules and replaced them with the rules
codified in Rule 3:28-1 to -10. However, as the State correctly noted in its
appellate brief, because the new rules were not in effect at the time defendant
applied for admission into PTI, we are bound to rely "on the version of Rule
3:28 and the accompanying Guidelines and Comments that governed" at that
time. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 473 n.4 (2018).
                                                                         A-5439-17T4
                                         2
an intent to turn left into the parking lot of a Dunkin Donuts. Before Johnson

started to turn, a silver pickup truck driven by defendant collided into the SUV.

The pickup truck continued to drive without making any attempt to stop at the

scene of the accident. Johnson followed the pickup truck until it stopped at the

driveway of an Autotrendz store. Defendant's fourteen-year-old son was seated

in the pickup truck's passenger seat.

      South Brunswick Police Officer Jarrid Harpster responded to the scene

and questioned both Johnson and defendant about the accident.           Harpster

memorialized the parties' statements and his observations of defendant's

demeanor in a Drinking and Driving Report.          Johnson told Harpster that

defendant "appeared to be intoxicated when he exited the vehicle to speak to

him." In response to Harpster's questions, defendant said he was on his way

home in Kendall Park after "he picked his son up from a wrestling match at the

high school." With respect to how the accident occurred, defendant claimed that

he was:

            discussing the match with [his son when] . . . he took
            his eyes off the road to look at his son while speaking
            to him, and when he glanced back at the road, he
            noticed a vehicle was stopped in front of him. He then
            swerved attempting to avoid a crash, striking the right
            rear passenger side wheel well and passenger door area.



                                                                         A-5439-17T4
                                        3
      Defendant told Harpster that he did not stop immediately after the accident

because he wanted to find a safe place to park his pickup truck. He denied

having drunk any alcoholic beverages before the accident. Harpster noted in his

report that while speaking with defendant, he "smelled [an] odor of alcoholic

beverage coming from his breath . . . [his] speech was slow, stuttered, and

slurred." Harpster also noted defendant's "balance [was] off as he swayed back

and forth . . . [and] kept re-adjusting his foot position to gain balance." His eyes

were "glassy and watery." Harpster also recorded that defendant had "a large

contusion above his right brow from hitting his head on the steering wheel

during the crash." He requested the "Monmouth Junction First Aid" squad to

respond to the scene and evaluate defendant's injury. Defendant refused medical

attention at the scene, but told the first aid responders that he suffered from

hypoglycemia.

      Based on these preliminary observations, Harpster asked defendant to

perform a series of field sobriety tests on a flat, level, blacktop area of the

Autotrendz parking lot. In response to Harpster's question, defendant said he

did not have any physical disabilities or other health-related problems that would

hinder or prevent him from performing any of these physical dexterity tests.

Before asking defendant to perform any of these tests, Harpster verbally


                                                                            A-5439-17T4
                                         4
described what he wanted defendant to do and physically demonstrated each test

in his presence. Harpster asked defendant to perform the heel-to-toe test; one-

leg stand test; and the thirty-second time-estimation test. 2       According to

Harpster, defendant was unable to perform as instructed all three of these tests.

      At this point, Harpster concluded he had probable cause to charge

defendant with driving while intoxicated (DWI), N.J.S.A. 39:4-50, and

transported him to the South Brunswick police station to administer a

breathalyzer test.    Harpster read defendant his constitutional rights under

Miranda v. Arizona, 384 U.S. 436 (1966), and obtained his written consent to

waive these rights.    Defendant also consented "to the taking of his breath

samples for chemical testing." See N.J.S.A. 39:4-50.2. Defendant's two breath

samples showed a blood alcohol content (BAC) of .21 percent, nearly three times

the .08 presumptive level of intoxication under N.J.S.A. 39:4-50.

      On December 13, 2017, defendant was formally charged with DWI,

reckless driving, N.J.S.A. 39:4-96, careless driving, N.J.S.A. 39:4-97, and

making an unsafe lane change, N.J.S.A. 39:4-88(b). On December 15, 2017,

defendant was also charged with second degree endangering the welfare of a


2
  Harpster described in detail how defendant failed to perform each one of these
tests. We do not include this aspect of Harpster's report here because it is not
germane to the legal issue before us.
                                                                         A-5439-17T4
                                        5
child under N.J.S.A. 2C:24-4(a)(2), by driving while intoxicated while his

fourteen-year-old son was a passenger, thereby knowingly putting him at risk of

harm, making him an abused and neglected child under N.J.S.A. 9:6-8.9(d)(2).3

                                PTI Application

      Pursuant to Rule 3:28(h), a defendant must file an application for

admission into PTI "at the earliest possible opportunity, including before

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

Defendant filed this application for admission into PTI with the Criminal Case

Manager (CCM) on February 5, 2018 nearly three months before a Middlesex

County grand jury indicted him for second degree endangering the welfare of a

child. The CCM probation officer who reviewed defendant's PTI application

considered the following factors.



3
    Due the nature of this offense, the Division of Child Protection and
Permanency (DCPP) was initially involved with defendant and his family. The
PTI Recommendation report prepared by the Middlesex County Criminal Case
Manager noted that a DCPP representative "ordered" defendant to undergo an
intake evaluation with Catholic Charities and referred him to "Open Door," an
outpatient substance abuse services program in New Brunswick. In a letter dated
June 8, 2018, a Supervisor of Family Services in the State Department of
Children and Families informed defendant's wife that they had "completed" their
intervention with the family and had "no further concerns." The Supervisor also
provided defendant's wife with the Department's hotline telephone number and
the telephone numbers of a variety of social services agencies that operate in the
community.
                                                                          A-5439-17T4
                                        6
      Defendant was forty-six years old at the time the accident. He is married

and has two teenaged children (twins), a boy and a girl. The fourteen-year-old

boy was in the pickup truck at the time of the collision. Defendant graduated

from Rutgers University in 1993 with a Bachelor of Science in Sports

Management and Exercise Science and attended an undetermined number of

graduate classes at the New Jersey Institute of Technology (NJIT), earning fewer

than six credits. Defendant told the CCM probation officer he stopped attending

NJIT when his wife became pregnant with the twins. He returned to NJIT in

2001 to complete an Environmental Infrastructure and Management course. The

CCM verified defendant earned twelve graduate level credits and a Graduate

Certificate from NJIT.

      Defendant is employed as a Sales Manager with a company in New

Brunswick and has supervisory authority over twenty employees. At the time

the CCM prepared its PTI assessment report in 2018, defendant had been

employed at this company for twenty-one years. He suffers from hypoglycemia

and reports that his kidney function may be compromised. Defendant described

himself as a "former alcoholic" who "drank alcohol a couple of times per week."

He claimed to have been a "binge drinker" who was "sober for two and a half

years" before this accident. He told the CCM probation officer that since the


                                                                        A-5439-17T4
                                       7
accident, he "actively attends" alcoholics anonymous (AA) meetings, has an AA

sponsor, and voluntarily attended graduate study counseling through Rutgers

University Psychological Services.      Defendant does not have any prior

involvement with the criminal justice system.        He has two prior DWI

convictions, in December 2012, and April 2000.

      Defendant admitted he "consumed Vodka prior to the commission of the

instant offense . . . [and] was intoxicated." The CCM recommended defendant's

admission into PTI based on a combination of public policy considerations and

defendant's personal characteristics. According to the CCM: (i) defendant's

enrollment into PTI would relieve the overburdened criminal calendars and

allow the prosecutor to devote more resources to address serious criminal cases;

(ii) defendant is unlikely to commit another offense; (iii) defendant was

cooperative with the CCM and the DCPP and has participated in counseling

services; (iv) defendant's first DWI occurred eighteen years ago and his second

in 2012; and (v) the child victim was not injured. Pursuant to Guideline 3(i),

defendant is presumptively ineligible for admission into PTI because he is

charged with a second degree crime. However, the CCM did not consider this

factor in assessing defendant's eligibility for PTI because "to date he has not

been indicted."


                                                                        A-5439-17T4
                                       8
      The CCM recommended defendant's admission into PTI provided he: (1)

remain gainfully employed; (2) report as directed; (3) remain offense free; (4)

comply with the DCPP4; (5) continue to attend AA meetings; (6) continue

outpatient treatment until medically discharged; (7) pay restitution to Johnson

for any damage to his vehicle; and (8) abide by a potential court-ordered

suspension of his driver's license.

      In a letter dated March 13, 2018, addressed to defense counsel, the

Assistant Prosecutor assigned to review defendant's PTI application advised

counsel that after considering the seventeen factors in N.J.S.A. 2C:43-12(e) and

the Guidelines appurtenant to Rule 3:28, the MCPO had decided to reject

defendant's application. Specifically, the MCPO found: (1) insufficient grounds

to overcome the presumption against admission into PTI for a defendant charged

with a second degree offense; (2) the particular facts of the case; (3) the

motivation and age of defendant; and (4) the public need to prosecute defendant

for this offense outweighs the value of supervisory treatment. Although there

were a number of factors that weighed in favor of admitting defendant into PTI,

the MCPO found holding defendant accountable for this offense through the



4
   By this time, the DCPP had completed its investigation of this incident and
terminated its involvement with defendant's family.
                                                                        A-5439-17T4
                                       9
criminal justice system would better serve the public policy of deterrence of

DWI, especially in a case in which the intoxicated driver exposed his own minor

son to serious harm by having him as a passenger in the vehicle.

      Defendant appealed the MCPO's rejection of his PTI application to the

Criminal Part. In his brief in support of his PTI application before the Criminal

Part, defense counsel described defendant's activity preceding the accident as

follows:

            On the day of this offense, Mr. Spinelli attended a work
            holiday party at a local restaurant and stayed for an hour
            and a half at which time he consumed a few mixed
            drinks over his better judgment. On his way home he
            picked up his son from wrestling practice.

      Although he conceded the MCPO had considered all of the relevant

factors in N.J.S.A. 2C:43-12(e), defendant argued the prosecutor had unduly

focused on the negative factors and failed to give "proper weight to . . .

defendant's character traits and rehabilitative efforts." Specifically, defendant

argued the prosecutor's reliance on the nature of the offense and the particular

facts of the case as factors that support the rejection of defendant's PTI

application "shows that the decision was arbitrary and capricious." Although he

was charged with second degree endangering the welfare of his own teenaged

son, defendant emphasized that the boy was not injured and "agrees to his father


                                                                         A-5439-17T4
                                       10
being let into PTI." Defendant also argued that the facts of the case "actually

weigh in favor" of admitting him into PTI.

      Although he was convicted of his second DWI in 2012, defendant claimed

he had "abstained from intoxicating substances for many years but relapsed after

the death of his mother and the holiday season, as many people do." (Emphasis

added).   According to defendant, society would be better served by his

admission into PTI "where he can learn the lesson from [his] mistake and return

to work and care for his family." Finally, despite this being his third DWI

conviction, defendant argues there is "simply nothing in the record to justify the

prosecutor's reliance" on a pattern of anti-social behavior.

      The MCPO did not file a formal brief or memorandum of law before the

Criminal Part. In a letter addressed to defense counsel and copied to the trial

judge, the MCPO restated its reasons for rejecting defendant's PTI application.

The matter came before the trial court on July 20, 2018. The transcript shows

the judge acknowledged the receipt of the parties' written submissions and

stated: "All right. If nothing else needs to be said, I'll give you my decision." 5



5
   Because the attorneys did not object, we infer they opted to waive oral
argument. We nevertheless emphasize that "[o]ral advocacy is a fundamental
aspect of our criminal justice system and should be encouraged, preserved, and
protected." State v. Parker, 459 N.J. Super. 26, 31 (App. Div. 2019).
                                                                            A-5439-17T4
                                        11
      After reviewing the salient facts in this case, the judge acknowledged that

a defendant seeking to overturn a prosecutor's rejection of an application to be

admitted into PTI must clearly and convincingly establish that the decision was

based on a patent and gross abuse of discretion. The judge also noted that the

prosecutor had considered and applied the seventeen factors codified in N.J.S.A.

2C:43-12(e) and the Guidelines attendant to Rule 3:28. After reviewing the

record of the accident prepared by Officer Harpster, the judge made the

following comment:

            Now, the State's version of defendant's behavior at the
            scene is somewhat contradicted by the police report
            provided by the defense on the date of the incident.
            While the defendant may not have initially been
            forthcoming and may have lied to the officer when
            asked initially if he had been drinking, he did ultimately
            admit that he had been drinking, it's not uncommon for
            people in that situation to not be completely
            forthcoming but he ultimately did reveal that he was
            drinking. And the officer noted in his police report that
            the defendant was polite. He was calm and he was
            cooperative.

            The defendant's use of alcohol is the root cause of his
            criminal charge and it seems to me that with proper
            supervision and in light of the rehabilitative nature of
            PTI, defendant can potentially overcome these troubles.

      The judge's next significant comment came in analyzing the factor that

addresses the nature of the crime and whether the value of supervisory treatment


                                                                         A-5439-17T4
                                       12
would be outweighed by the public need for prosecution. The judge noted that

even if defendant was admitted into PTI, he would not avoid the Title 39

sanctions imposed by the Legislature for his third DWI conviction. Thus, in the

judge's view, society's interests in deterring drunk driving would be sufficiently

served "because inherent in that offense, there's [a] 180 day jail sentence." 6

      With respect to the charge of second degree endangering the welfare of

child, the judge found:

            The victim in this case, his child expressly wishes that
            the defendant not be prosecuted and that he be admitted
            into the PTI program. And frankly society has an
            interest in permitting or allowing a father with
            obligations with no past criminal history into a
            diversionary program where, with the support of his
            family to address his drinking problems so that he can
            remain a productive member of society, contributing to
            his family, contributing to his community.

      Finally, citing State v. Caliguiri, 158 N.J. 28 (1999), the judge made the

following comments with respect to the applicability of the presumption against

admission into PTI for a defendant charged with a first or second degree crime

under Guideline 3(i):



6
  We are compelled to note that a sentence imposed for a third DWI conviction
under N.J.S.A. 39:4-50(a)(3) authorizes the court to allow defendant so serve 90
of the 180-day sentence "participating in a drug or alcohol inpatient
rehabilitation program approved by the Intoxicated Driver Resource Center ."
                                                                           A-5439-17T4
                                       13
            A categorical exclusion from PTI based solely on the
            nature of the offense without consideration of the
            individual defendant is patently and grossly arbitrary
            according to Caliguiri. In that case, the Middlesex
            County [P]rosecutor's rejection of a defendant from PTI
            for assault by auto while intoxicated was overturned
            where the prosecutor failed to consider individual facts
            about the defendant.

      In furtherance of this line of reasoning, the judge held that the MCPO's

determination here "seems no different than the prosecutor's determination in

[State v. Caliguiri]."    The judge thus found that in his "view" denying

defendant's application "would clearly subvert the goals of PTI . . . ." Based on

these findings, the judge concluded that the prosecutor's rejection of defendant's

PTI application constituted "a clear error of judgment which has invariably

resulted in a patent and gross abuse of discretion."

                                        II

      We start our analysis by noting that our Supreme Court recently overruled

the holding in Caliguiri, which the trial judge viewed as dispositive of the issue

before us. In State v. Johnson, 238 N.J. 119, 122-23 (2019), the Court held that

"the presumption against PTI for second-degree offenders cannot be applied to

N.J.S.A. 2C:35-7(a) offenders." The Johnson Court also reaffirmed, however,

that "'PTI is essentially an extension of the charging decision, therefore the

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

                                                                           A-5439-17T4
                                       14
at 128 (first quoting State v. Roseman, 221 N.J. 611, 624 (2015); then quoting

State v. Wallace, 146 N.J. 576, 582 (1996)). A brief recitation of the salient

facts in this case shows the trial court did not adhere to this standard of review.

      When defendant made a conscious choice to pick up his fourteen-year-old

son from school, he had .21 BAC level. This level of intoxication made him a

clear danger to any motorists or pedestrians he encountered. Furthermore, and

mostly disturbingly, the most vulnerable person at the time was his own teenage

son. Officer Harpster's police report gives us an indication of the degree of his

disorientation and extent of his cognitive impairment:

            [Defendant] looked over to talk to his son, when he
            glanced back at the road, he noticed [a car] was stopped
            attempting to turn into Dunkin Donuts and made
            evasive [maneuvers] by swerving right to avoid a crash.
            This caused him to impact the rear passenger wheel
            well and side door of [the car].

      The MCPO expressly noted these disturbing facts as a basis for finding

factor N.J.S.A. 2C:43-12(e)(14):

            The public need for prosecution outweighs the value of
            supervisory treatment in this case. The seriousness of
            the offense would be depreciated by admission into
            PTI. Defendant is someone who drives drunk, and this
            is the third time he has been arrested for doing so. His
            teenage son was in the car and he caused an accident.




                                                                           A-5439-17T4
                                       15
      Defendant was forty-six years old at the time of this accident.           His

decision to drive while intoxicated that day was not uncharacteristic or an

aberrational lapse in judgment. He is an alcoholic who had been convicted of

driving while impaired on two prior occasions.         His first DWI conviction

occurred in 2000 when he was twenty-nine years old. He was forty-one years

old when he was convicted for DWI a second time in 2012. In this third DWI

charge, defendant drove his pickup truck with a BAC nearly three times the

presumptive level of intoxication; his fourteen-year-old son was seated beside

him; and he crashed into a car that had stopped to make a lawful turn. Defendant

did not stop at the scene. He continued driving on Route 27 while the driver of

the car he had just crashed into gave chase.

      Based on these allegations, in addition to the Title 39 violations, the State

charged defendant with second degree endangering the welfare of a child, a

crime that carries a presumption of incarceration of no less than five years in

State prison. In reaching the conclusion to reject defendant's PTI application,

the MCPO noted: "[W]hile there is no indication of any intentional violence,

[defendant] nonetheless presents a substantial danger to himself and others."

      The Supreme Court made clear in Roseman that "the prosecutor's decision

to accept or reject a defendant's PTI application is entitled to a great deal of


                                                                           A-5439-17T4
                                       16
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.'" 221 N.J. at 624-25

(quoting Wallace, 146 N.J. at 582). Our review of the record here leaves no

doubt that the trial court's decision to overturn the MCPO's rejection of

defendant's PTI application was not based on a proper application of this

enhanced deferential standard of review.

      Here, the trial court engaged in a de novo examination of the record,

through which it usurped the prosecutor's charging authority to reach what the

court "viewed" as the right result. This approach is irreconcilable with the role

the judiciary performs in this context. See State v. Rizzitello, 447 N.J. Super.

301, 314 (App. Div. 2016). Defendant did not present sufficient evidence to

overcome the presumption against admission or establish that the prosecutor's

rejection constituted "a patent and gross abuse of discretion." Guided by this

standard of review, we discern no legal basis to interfere with the prosecutor's

rejection.

      Reversed and remanded.




                                                                         A-5439-17T4
                                      17
