STATE OF NEW JERSEY VS. HYUN WOOK HAM (15-10-1273, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0159-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HYUN WOOK HAM,
Defendant-Appellant.
_________________________________
Submitted October 25, 2017 – Decided November 13, 2017
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
15-10-1273.
Thomas Carroll Blauvelt, attorney for
appellant (Aqua G. Etuk, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Annmarie Cozzi,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant appeals from a March 14, 2016 order denying his
appeal of a prosecutor's rejection of his application for admission
into the pre-trial intervention program (PTI). He also appeals
the trial court's denial of a civil reservation that his guilty
plea to assault by auto not be evidential in any civil proceeding.
Because there is no record of the prosecutor providing defendant
with a written statement of reasons for the rejection of
defendant's PTI application, we vacate the order concerning PTI
and remand for further proceedings. Because defendant failed to
establish good cause for a civil reservation, we affirm the trial
court's denial of that request.
A grand jury charged defendant in a single-count indictment
with fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), for
driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50
and causing bodily injury. Following the indictment, defendant
applied for PTI. The PTI program director preliminarily granted
defendant's application for admission into the program, but the
prosecutor denied defendant's application. Defendant appealed to
the Law Division, where a judge upheld the denial. Defendant then
pleaded guilty to the fourth-degree offense and a summons charging
him with DWI. The trial judge sentenced defendant in accordance
with a plea agreement to a two-year probationary term conditioned
on him attending Alcoholics Anonymous. The judge also imposed
appropriate penalties and assessments. On the DWI offense, the
judge also imposed appropriate penalties and assessments.
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We first address defendant's challenge to the prosecutor's
rejection of his PTI application. When a prosecutor denies a
defendant's admission into PTI, the "prosecutor is required to
provide a criminal defendant with a statement of reasons justifying
his or her PTI decision, and the statement of reasons must
demonstrate that the prosecutor has carefully considered the facts
in light of the relevant law." State v. Wallace, 146 N.J. 576,
584 (1996).
Here, the prosecutor's written statement of reasons is not
included in the appellate record. Defendant asserts, "it is
unclear whether [the prosecutor's] objection was provided in
writing." The prosecutor does not address the issue. Rather, he
cites the trial judge's opinion to support the proposition that
the State objected to defendant's PTI admission. The trial judge's
opinion does not resolve the issue of whether the judge evaluated
the merits of the prosecutor's decision based on the brief that
the prosecutor submitted, a prosecutor's rejection letter to
defendant, or something else.1
Because it is unclear from the record whether the prosecutor
fulfilled his obligation to provide defendant with a written
statement of reasons for rejecting the PTI application, we vacate
1
The record is clear that the judge considered a video of the
auto-pedestrian accident underlying the charges.
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the Law Division order and remand this matter to the Law Division
in the first instance. If the prosecutor provided defendant with
a written statement of reasons rejecting the PTI application, and
the judge decided the matter based on such written statement, then
the Law Division judge shall so state and amplify his decision
based upon the prosecutor's statement of reasons. If the
prosecutor did not provide defendant with a statement of reasons
for rejecting the PTI application, then the trial judge shall
remand the matter to the prosecutor's office to provide such a
statement. If the prosecutor did not provide a statement, and if
defendant deems it appropriate to challenge the statement the
prosecutor submits on remand, defendant may seek relief in the
first instance in the Law Division. Following any Law Division
proceedings, either side may timely file an appeal.
We turn to defendant's second argument. After the trial
judge imposed sentence, he addressed defendant's application for
a civil reservation. The judge denied defendant's application due
to the nature of the incident and the injury to the victim.
Rule 3:9-2 provides that "[f]or good cause shown the court
may, in accepting a plea of guilty, order that such plea not be
evidential in any civil proceeding." Here, defendant did not
demonstrate good cause, and his arguments to the contrary are
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without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
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