STATE OF NEW JERSEY VS. MATTHEW DRUMMOND (16-02-0168, UNION COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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
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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).
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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
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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.
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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
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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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