Pretrial Intervention Program (PTI)

New Jersey Superior Court Reports

STATE v. LIVIAZ, A-5135-05T1 (N.J.Super. 1-10-2007) STATE
OF NEW JERSEY, Plaintiff-Appellant, v. DAVID LIVIAZ,
Defendant-Respondent. STATE OF NEW JERSEY,
Plaintiff-Appellant, v. DENNIS J. CLAROS-BENITEZ,
Defendant-Respondent. Nos. A-5135-05T1, A-5136-05T1.
Superior Court of New Jersey, Appellate Division. Submitted
December 12, 2006. Decided January 10, 2007.

On appeal from the Superior Court of New Jersey Law
Division, Burlington County, No. 2002-05-0620-I and No.
2005-09-1232-I.

Before Judges COBURN, AXELRAD and GILROY.

Robert D. Bernardi, Burlington County Prosecutor, attorney
for appellant in both appeals (Deborah A. Siegrist,
Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for
respondents in both appeals (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).

The opinion of the court was delivered by

COBURN, P.J.A.D.

In these appeals, consolidated for purposes of this
opinion, we review two Law Division orders admitting
defendants to the Pretrial Intervention Program (“PTI”)
over the objection of the Burlington County Prosecutor. The
judge found that in both cases the prosecutor’s action was
a patent and gross abuse of his discretion because, without
giving sufficient weight to other relevant factors, he
rejected the applications on the sole ground that the
defendants were illegal aliens. Although we agree that PTI
may not be denied solely because a defendant is an illegal
alien, we reverse both orders because we are satisfied that
it can be a relevant factor and that in each case the
prosecutor reasonably took it into account in addition to
other relevant factors, reaching conclusions that were well
within his discretion.

Before addressing each defendant’s particular
circumstances, we take note of the general legal principles
governing PTI. In deciding PTI applications, prosecutors
must consider “an individual defendant’s features that bear
on his or her amenability to rehabilitation.” State v.
Nwobu, 139 N.J. 236, 255 (1995). And that evaluation “must
be conducted in compliance with the criteria set forth in
N.J.S.A. 2C:43-12e, and reinforced in Guideline 3 [of Rule
3:28].” State v. Negran, 178 N.J. 73, 80-81 (2003). But
prosecutors have “wide latitude” in their PTI decisions and
our scope of review is “severely limited.” Id. at 82. The
judiciary’s role is limited to checking “only the `most
egregious examples of injustice and unfairness.'” Ibid.
(citing, among other cases, State v. Leonardis, 73 N.J. 360,
384 (1977)). And a “defendant attempting to overcome a
prosecutorial veto must clearly and convincingly establish
that the prosecutor’s refusal to sanction admission into a
PTI program was based on a patent and gross abuse of his
discretion. . . .” Ibid. (internal quotations omitted).

Defendant David Liviaz was indicted for a third degree
crime and a fourth degree crime involving false documents,
N.J.S.A. 2C:21-1(a)(3) (count one), and N.J.S.A.
2C:21-2.1(c) (count two); fourth degree false swearing,
N.J.S.A. 2C:28-2(a) (count three); and fourth degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count four).
His application for PTI was denied by the program director
and by the prosecutor.

The prosecutor’s rejection letter of March 15, 2005, was
prepared by Assistant Prosecutor Deborah A. Siegrist, who
described the events leading up to defendant’s arrest as
follows:

I first considered the nature and facts of the offense.
Police responded to a report of two suspicious persons at
the Medford branch of the Division of Motor Vehicles (now
MVC). The DMV employee pointed out defendant to the
officer and told the officer that defendant’s companion,
no longer present, had presented an application for a
driver’s license along with a birth certificate that
appeared to be fraudulent. The birth certificate presented
was in the name of Erwin William Alvarado. The driver’s
license application was in the name of Erwin William
Alvarado. When the responding police officer asked
defendant for identification, defendant supplied a
driver’s license in the name of Emilio Purchury with a
Newark address. He told the officer that he had merely
come to the DMV to fill out a change-of-address form. He
did not know the address to which he was changing. He
said he had come down from Newark with someone named Juan
Carlos.

Police took defendant to the station for questioning. He
signed a Miranda card with the name Emilio Purchury. For
the arrest report, he gave his name as Emilio Purchury,
with a Newark address and a date of birth of 1/28/73. He
signed his fingerprint card as Emilio Purchury. Police
immediately sent in his fingerprints, and they came back
as belonging to David Liviaz of Belleville, NJ, date of
birth 9/28/72. When confronted with that information,
defendant admitted that he had lied and that he had
obtained all of the information from his friend Emilio
Purchury, who was leaving the country and no longer needed
it.

Meanwhile, police had located the second “suspicious
person” at a Burger King near the DMV and brought him to
the DMV. Defendant claimed not to know the person. The
person, who identified himself as Alfonso Quintana, told
police that he had in fact come with defendant to the
DMV. “Quintana” said that he lived in Paterson and
defendant lives in Newark and drives into Paterson and
gets guys to take driver’s license tests for him. On that
date, he was approached by defendant and asked to go for a
ride and get a driver’s license. He said that defendant,
known to him only as “Chato,” drove him down to the
Medford DMV. Defendant provided him with a birth
certificate and instructed him to enter the DMV and apply
for a driver’s license in that name, take the driver’s
permit examination and provide the permit to defendant.
Defendant would then pay him $300. Through fingerprints,
police determined that this second man was actually Victor
Sanchez, now a co-defendant in this case.

The police contacted Middle Township, New Jersey, from
where the birth certificate submitted by Sanchez purported
to be. They confirmed that the birth certificate was a
forgery; there was no Erwin William Alvarado born in their
jurisdiction. Furthermore, over the previous nine months,
there had been approximately ten other instances of
people trying to pass forged Middle Township birth
certificates throughout the state.

In defendant’s vehicle, police found a driver’s license
application in the name of Apolonio Aguilar-Flores, an
examination permit in the name of Miriam C. Reina-Jimenez
and an examination permit in the name of Jennifer Torres.
Police contacted the INS, who advised that David Liviaz
was not registered with them and that they would be
putting a detainer on him.

After noting that the nature of defendant’s offenses
“would not necessarily indicate rejection of defendant’s
application for PTI,” the assistant prosecutor then
provided this thorough and carefully considered explanation
for the rejection:

I reject primarily on the basis that I do not believe
defendant is amenable to rehabilitation through PTI. He
has engaged in a lengthy pattern of anti-social behavior.
He is a citizen of Peru, who is in this country illegally.
He has been in this country illegally for 13 years. He
has chosen to commit a criminal act every day that he
remains in this country illegally. I understand that at
some point after his arrest defendant petitioned for legal
status and that matter is pending. However, he has not
been in such an open and above-board stance throughout his
illegal stay. Rather than attempting to gain some legal
status, he has actively engaged in fraud and subterfuge to
remain here. He went to the trouble of obtaining
fraudulent identification. He further perpetuated this by
providing a false identity to the police when stopped and
refusing to provide his true identity until it was
conclusively established by his fingerprints. This
behavior is not indicative of an honest person who has
engaged in an aberrant single episode of criminal
activity. Rather, it is indicative of a person who does
not feel bound by the law when it is not consonant with
his own desires. Furthermore, there are indications from
the statement of Sanchez and from the materials found in
defendant’s vehicle that he is involved in other
continuing illegal activity with regard to procuring
fraudulent drivers’ permits and/or licenses. I do not
believe that PTI is sufficient sanction to deter him from
further criminal activity.

Further indication of the unlikelihood of defendant’s
amenability to rehabilitation through PTI is the fact that
he has been a fugitive for a number of years. A warrant
was issued for his arrest on May 22, 2002, when he failed
to appear for a pre-arraignment conference. He was a
fugitive until June 17, 2005. He then failed to appear for
his arraignment on July 5, 2005, and was a fugitive until
August 2, 2005. I understand that you have advised me that
he was not a “fugitive” in the sense of the word that he
was hiding or fleeing. Nonetheless, he did fail to honor
his court commitments, whether knowingly or because he did
not keep the courts advised of his whereabouts for
purposes of receiving notice. This does not bode well for
his compliance with PTI reporting requirements.

I have considered all of the pertinent information
provided by defendant. He is 33 years old. He has no prior
criminal convictions in this country. I do not know what
kind of background he has in Peru. He is unemployed. He
lives with his paramour, with whom he has two children. He
has also fathered one child each with two other women.
One of them has a child-support case pending against him.
He completed high school in Peru. None of this persuades
me that defendant is amenable to rehabilitation through
PTI.

I further conclude that any potential benefits to
defendant or society by virtue of his diversion are
outweighed by the needs and interests of society in
prosecuting and deterring this conduct. It is clearly a
priority for our national security to know the identities
of those inhabiting our country.

I have considered that among the goals underlying PTI is
providing alternatives to prosecution when early
rehabilitative services can be provided and/or when PTI
can be expected to serve as sufficient sanction to deter
future criminal conduct. I do not believe that is the
case here. I also have considered that a criminal
conviction might have a harmful impact upon defendant’s
future; it may contribute to his deportation. I have
considered that defendant’s conduct is worthy of the
expenditure of criminal justice resources.

Although the judge found that the assistant prosecutor’s
letter “clearly recited all of the relevant factors for an
individual review” of defendant’s PTI application, she
concluded that in reality it applied, sub silentio, a per
se rule disallowing PTI for any illegal alien.

Guideline 2, Rule 3:28, clearly states that “[a]ny
defendant accused of crime shall be eligible for admission
into a PTI program.” Thus, apart from some limited
exceptions not implicated in this case, see Pressler,
Current N.J. Court Rules, comment 2 on R. 3:28 (2007), use
of a per se rule is prohibited.

Our difficulty with the trial judge’s opinion is its
failure to demonstrate that a per se rule was in fact
applied. Quite to the contrary, the assistant prosecutor
emphasized these points: defendant was not merely an alien,
but had remained so for thirteen years; the length of his
illegal presence and the particular crimes charged, as well
as the additional crimes suggested by the contents of his
car, indicated a lack of honesty and persistence in
violating the law; his disregard of court orders, as
reflected by the issuance of two bench warrants for failure
to appear in these proceedings, shows a disdain for the
law, in particular because he was a fugitive on the first
warrant for over three years; and that disdain further
suggests that he is unlikely to comply with PTI reporting
requirements. Those are all substantial reasons for denial
of PTI. Consequently, we are satisfied that defendant
failed to prove that the prosecutor’s denial of PTI was a
patent and gross abuse of his discretion.

Defendant Claros-Benitez was indicted on one count of third
degree forging, changing, or counterfeiting motor vehicle
title papers, N.J.S.A. 2C:21-4.8(b)(3), and three counts of
fourth degree possession of a false driver’s license and
government-issued identification documents, N.J.S.A.
2C:21-2.1(d). His application for PTI was also denied by
the program director and by the prosecutor.

The prosecutor’s rejection letter of March 16, 2006, was
also prepared by Assistant Prosecutor Siegrist, and reads
in pertinent part as follows:

I reject primarily on the basis that I do not believe
defendant is amenable to rehabilitation through PTI. He
has engaged in a lengthy pattern of anti-social behavior.
He is a citizen of Honduras, who is in this country
illegally. He has been in this country illegally for five
years. He has chosen to commit a criminal act every day
that he remains in this country illegally. Rather than
attempting to gain some legal status, he has actively
engaged in fraud and subterfuge to remain here. He went to
the trouble of obtaining fraudulent identification. This
behavior is not indicative of an honest person who has
engaged in an aberrant single episode of criminal
activity. Rather, it is indicative of a person who does
not feel bound by the law when it is not consonant with
his own desires. I do not believe that PTI is sufficient
sanction to deter him from further criminal activity.

I have considered all of the pertinent information
provided by defendant. He is 26 years old. He has no prior
criminal convictions in this country. I do not know what
kind of background he has in Honduras. He reports being
employed as a carpenter for four years. Presumably this
is “under the table,” as he has no social security
number. He lives with his paramour and their child. He
completed high school in Honduras. None of this persuades
me that defendant is amenable to rehabilitation through
PTI.

I further conclude that any potential benefits to
defendant or society by virtue of his diversion are
outweighed by the needs and interests of society in
prosecuting and deterring this conduct. It is clearly a
priority for our national security to know the identities
of those inhabiting our country.

I have considered that among the goals underlying PTI is
providing alternatives to prosecution when early
rehabilitative services can be provided and/or when PTI
can be expected to serve as sufficient sanction to deter
future criminal conduct. I do not believe that is the
case here. I also have considered that a criminal
conviction might have a harmful impact upon defendant’s
future; it may contribute to his deportation. I have
considered that defendant’s conduct is worthy of the
expenditure of criminal justice resources.

Again the trial judge found that the prosecutor’s decision
was a gross and patent abuse of discretion because it
applied a per se rule to deny defendant PTI. We disagree
with that characterization of the assistant prosecutor’s
rejection letter. Although defendant’s illegal status was
an important factor, it was far from the only factor on
which the assistant prosecutor relied. Rather, she
emphasized the length of defendant’s illegal stay in this
country, his complete failure to attempt to gain legal
status, his working “under-the-table,” and his involvement
in fraud and subterfuge to remain here.

Given the reasons set forth in the assistant prosecutor’s
rejection letter, we cannot agree with the trial judge’s
conclusion that a per se rule was applied.

Reversed and remanded for further proceedings not
inconsistent with this opinion.