STATE OF NEW JERSEY v. ROBERT MICELI (2010)

Defendant Robert Miceli appeals from an order entered by the Law Division affirming the Essex County Prosecutor's denial of his pretrial intervention (PTI) application.   We affirm.

I.

We discern the following facts and procedural history from the record.

In the early morning hours of November 29, 2008, Miceli was returning from his ten-year high school reunion.   A West Caldwell police officer observed smoke coming from his pick-up truck, which also appeared to have been damaged.   The police officer initiated a motor vehicle stop and pulled behind Miceli's truck.   Miceli sped up rather than stopping.   The officer pursued Miceli until he eventually struck a tree.   During the pursuit, Miceli drove over a curb onto a grassy area, then reversed and backed up toward the police officer, who had to take cover nearby.   After he hit the tree, Miceli continued revving his engine until the officer broke Miceli's car window and succeeded in getting him out of the truck and handcuffed.   A subsequent blood test revealed that Miceli's blood alcohol level was 0.181 percent.

As a result of the events described above, Miceli was charged with second-degree eluding, contrary to N.J.S.A. 2C:29-2(b);  obstructing the administration of law, contrary to N.J.S.A. 2C:29-1(a);  driving while intoxicated, contrary to N.J.S.A. 39:4-50;  failure to yield to an emergency vehicle, contrary to N.J.S.A. 39:4-91;  careless driving, contrary to N.J.S.A. 39:4-97;  and reckless driving, contrary to N.J.S.A. 39:4-96.   On February 9, 2009, Miceli waived his right to have a grand jury hear his case.   He pled guilty to an accusation charging him with third-degree eluding, driving while intoxicated, and careless driving.   The remaining charges were to be dismissed at sentencing.

As part of the plea agreement, Miceli was permitted to apply for PTI, which he did on February 25, 2009.   The Criminal Division Manager recommended against the application.   The Essex County Prosecutor denied the application, for reasons extensively outlined in a letter dated April 30, 2009.   After evaluating and weighing the factors set forth in N.J.S.A. 2C:43-12(e), the prosecutor concluded that, despite significant factors supporting admission to PTI, Miceli was not a “suitable candidate” for PTI because of the nature of his criminal conduct.

Miceli appealed the denial to the Law Division.   After oral argument and the receipt of additional briefs, the Law Division judge denied the appeal in a written opinion dated June 12, 2009.   The implementing order was entered on June 30, 2009.

Miceli was sentenced on September 25, 2009.   He was sentenced to probation for two years, community service, and all required fees and assessments on the third-degree eluding charge, as well as the mandatory penalties for the motor vehicle offenses.

This appeal followed.

II.

On appeal, Miceli raises the following issues:

POINT I:  THE PROSECUTOR'S OBJECTION TO MR. MICELI'S ACCEPTANCE TO PTI WAS ARBITRARY AND CAPRICIOUS AND AMOUNTS TO A PATENT AND GROSS ABUSE OF DISCRETION.

POINT II:  THE PROSECUTOR'S ACTION CLEARLY SUBVERTS THE GOALS OF PTI.

Judicial review of decisions to reject applications for PTI is “ ‘severely limited,’ ” State v. Nwobu, 139 N.J. 236, 246 (1995) (quoting State v. Kraft, 265 N.J.Super. 106, 111 (App.Div.1993), serving to “check only the ‘most egregious examples of injustice and unfairness.’ ”  State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).   To set aside a prosecutor's rejection, “a defendant must clearly and convincingly establish that the prosecutor's decision constitute[d] a patent and gross abuse of discretion.”  State v. Watkins, 193 N.J. 507, 520 (2008) (quoting another source) (internal quotation marks omitted);  State v. Dalglish, 86 N.J. 503, 509 (1981).  “[A] party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a ‘clear error in judgment.’ ”  Nwobu, supra, 139 N.J. at 247 (quoting State v. Bender, 80 N.J. 84, 93 (1979)).   To meet this heavy burden, a rejected applicant must show that the prosecutor's error “will clearly subvert the goals underlying Pretrial Intervention.”  Bender, supra, 80 N.J. at 93.

Having reviewed the record and the parties' arguments in light of the applicable law, we affirm the decision on appeal essentially for the reasons stated by Judge Michael J. Nelson.   Both the prosecutor and the judge recognized that Miceli had made substantial contributions to the community and that he had an otherwise clean record.   Nevertheless, on the record before us, the prosecutor's reasons for rejecting his PTI application, which focus on the nature of the conduct involved, cannot be described as “a patent and gross abuse of discretion,” nor will the prosecutor's denial of Miceli's PTI application “clearly subvert the goals underlying Pretrial Intervention.”

Affirmed.

PER CURIAM