SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 3953
- 15T2 STATE OF NEW JERSEY, Plaintif f
- Respondent,

v.
WILLIAM O ' ROURKE , a/k/a WILLIAM J. OROURKE, Defendant
- Appellant.

_______________________________

Submitted June 21, 2017

– Decided Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 15
- 04
- 0209. Joseph E. Krakora, Public Defender, attorney for appellant (Peter T. Blum, Assistant Deputy Public Defender, of counsel and on the brief). Michael H. Robertson, Somerset County Prosecutor, attorn ey for respondent (Paul H. Heinzel, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A Somerset County grand jury returned Indictment No. 15
- 04
- 209 against d efendant William O ' Rourke , charging him with one NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court . " A lthough 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.

September 5, 20172 A - 3953
- 15T2

count of fourth degree operating a motor vehicle during a period of license suspension for a second or subsequent conviction for
d riving while intoxicated (DWI) , N.J.S.A. 2C:40
- 26(b) . A Montgomery Township Police Officer also issued defendant summonses
for DWI , N.J.S.A. 39:4
- 50 ; DWI in a school zone, N.J.S.A. 39:4
- 50(g) ; driving while his license was suspended, N.J.S.A. 39:3
- 40 ; and driving a motor vehicle with an expired registration, N.J.S.A. 39:3
- 4. Defendant applied for admission into the Pretrial Intervention Program (PTI) in connect ion with the single count in the indictment . The PTI Director in the Criminal Division Manager ' s Office recommended that defendant ' s application be denied because his record indicated that his present offense

" constitutes [an] ongoing pattern of anti
- social behavior. " The Somerset County Prosecutor ' s Office (SCPO) concurred with the PTI Director ' s recommendation and denied defendant ' s application . Defendant thereafter submitted additional information to the SCPO
and asked the prosecutor to recon sider his decision based on the particular hardship defendant ' s confinement would cause to his wife . After reviewing defendant ' s supplemental presentation , the prosecutor found no legal basis to reconsider his initial position. Defendant appealed the pro secutor ' s rejection of his PTI application to the Presiding Judge of the Criminal Part. After3 A - 3953
- 15T2

reviewing the parties ' legal memoranda and considering the oral argument presented by counsel, the j udge upheld the SCPO ' s rejection of defendant ' s PTI applicati on. The judge found defendant did not show, by clear and convincing evidence, that the prosecutor ' s decision amount ed to a patent and gross abuse of discretion . D efendant thereafter negotiated an agreement with the
State through which he ple a d ed guilty t o one count of the fourth degree offense defined in N.J.S.A. 2C:40
- 26(b) and to DWI under
N.J.S.A. 39:4
- 50. The State agreed to dismiss the remaining Title
39 summonses and recommend the court sentence defendant to a term of probation not to exceed three years, conditioned upon defendant serving 364 days in the Somerset County Jail, 180 days of which
to be served without parole as mandated by N.J.S.A. 2C:40
- 26(b) . Defen dant was free to argue for a lesser sentence within the
statute ' s mandatory parole restriction.
The court sentenced defendant to a three
- year term of probation, conditioned upon serving 180 days without parole in the

c ounty j ail as mandated by N.J.S.A. 2C :40
- 26(b) . On his conviction for his fourth DWI, the judge sentenced defendant to a term of 180 days in the c ounty j ail, to run concurrent to the term imposed for his fourth degree criminal conviction , ordered him to pay a $1000 fine , revoked his driving privileges for ten years, and imposed the mandatory monetary penalties under N.J.S.A. 39:4
- 50(a)(3).4 A - 3953
- 15T2

Defendant now appeals raising the following arguments:
POINT ONE AT A MINIMUM, O ' ROURKE ' S PTI APPLICATION SHOULD B E RECONSIDERED BECAUSE THE PROSECUTOR REJECTED IT BASED UPON IMPROPER CONSIDERATIONS. A. The Prosecutor Applied A Non
Existent Presumption against PTI for the Charge of Driving While Suspended for a Second or Subsequent DWI Offense. B. The Prosecutor Tendentiously Misinterpreted Various Statutory PTI Factors.
POINT II
O ' ROURKE SHOULD HAVE BEEN ORDERED INTO PTI BEECAUSE [SIC] THE OFFENSE WAS A FOURTH - DEGREE DRIVING OFFENSE, HE WAS SEEKING TREATMENT FOR HIS ROOT PROBLEM OF ALCOHOLISM, AND HIS WIFE WAS SUFFERING FROM DEMENTIA. We reject these arguments and affirm. We gather the following facts from the record developed before the Criminal
Part. At 3:25 p.m. o n Wednesday , January 7, 2015, Montgomery Police Officer Ryan Gray responded to Montgomery High School to investigate a report of an intoxicated driver. When he arrived, Gray found a Buick Riviera illegally parked at the curb of the office of the Montgomery Board of Education. The car was unoccupied with the engine running. Gray conducted a computer5 A - 3953
- 15T2

check of the vehicle ' s license plate number and discovered it was registered to defendant , but the registration card had expired. Gray entered the Board of Education Office and found defendant seated in a chair. He immediately noticed that defendant had a strong odor of alcohol and h is face was flushed. When Gray spoke with defendant, he noticed defendant spoke slow ly and deliberate ly . Based on these observations, Gray concluded defendant was under the influence of alcohol. Defendant told Gray he left the car parked because he anti cipat ed he would return within thirty seconds. It is undisputed defendant was unable to successfully complete the field sobriety tests Gray asked him to perform at the scene. Defendant ' s blood alcohol concentration (BAC) was .25%, or more than three time s the .08% presumptive level of intoxication under N.J.S.A. 39:4
- 50(a). On January 30, 2012, nearly three years before t his encounter with Officer Gray, defendant was convicted on his third DWI, was sentenced to serve 180 days in the county jail , and had his license
revoked for ten years. Defendant was also charged with DW I on October 17, 1989, and March 16, 2005 and subsequently convicted
of both . In addition to these charges, his driver ' s abstract
shows that over the past thirty years, defendant has be en convicted of speeding, reckless driving, unsafe operation of a motor vehicle,
and a variety of other moving violation s . Defendant was nearly6 A - 3953
- 15T2

fifty
- three years old when he was arrested and convicted for his fourth DWI charge. In support of his PTI app lication, defendant submitted a
letter dated February 20, 2015 from Turning Point, a program dedicated to the " compassionate treatment of alcoholism and drug dependency. " The author of the letter, who described himself as

a " Primary Counselor, " wrote to i nform the Montgomery Municipal Court Supervisor that defendant was " presently attending Turning Point ' s short
- term variable length of stay treatment facility for chemical dependency. " (Emphasis added) . According to the letter, defendant entered this prog ram on January 22, 2015, fifteen days after his arrest for his fourth DWI charge. The program will give
defendant " an aftercare recommendation and [ he ] wil l also be encouraged to attend daily NA/AA meetings. " The record before us includes the supplemental information
that defense counsel submitted to induce the prosecutor to reconsider his original decision to reject defendant ' s PTI application. In a letter addres sed directly to the prosecutor, defense counsel asserted that defendant is a marr ied father of two minor children. His fifty
- three
- year - old wife suffers from Alzheimer ' s disease. Counsel attached a letter from a neuroscience institute to support this claim. Counsel states: " While Mr.
O ' Rourke might be an alcoholic, he is an integral part of his7 A - 3953
- 15T2

wife ' s care. Six months of incarceration will only serve to completely destroy this family that is already teetering on the edge. " In his response acknowledging the receipt of defendant ' s application for reconsideration , the prosecutor state d:

First, allow me to express my sincere condolences to Mr. O ' Rourke and his family regarding the horrible circumstances in which they find themselves. However, despite the fact that the State recognizes the additional hardship incarceration will occasion upon defendant and his family, given the offenses defendant is charged with . . . both statutes [ 1 ] require mandatory incarceration. Moreover, while it is not the " policy " of the Somerset County Prosecutor ' s Office to reject all persons charged with N.J.S .A. 2C:40
- 26(b), it certainly [is] true that in most instances [,] such as this case, the State will reject those persons whose driving history demonstrates an ongoing course of antisocial behavior, combined with present charges that demonstrate a lack of a menability to short term rehabilitation.
The j udge who decided defendant ' s appeal in the Criminal Part ultimately accepted the State ' s position. The j udge concluded that the prosecutor had carefully reviewed defendant ' s PTI application and found support for its rejection in the factors codified in N.J.S.A. 2C:43
- 12(e) . The prosecutor found f actor two, which requires a fact
- sensitive evaluation , supports

1 N.J.S.A. 39:4
- 50(a)(3) and N.J.S.A. 2C:40
- 26(b) .8 A - 3953
- 15T2

rejection . D efendant had a .25% BAC at the time of his arrest for
DWI ; and this arrest occurred less than three years after his ten
year suspension of his driving privileges for his third DWI conviction. As for f actor three, which addresses the motivation and age of the defendant , the State asserts defendant ' s age elim inates the possibility that this was a mere youthful indiscretion. Instead, d efendant ' s age reveals he has had multiple opportunities to address his alcohol addiction and its disruptive
consequences. Factor four , which examines the desire of the complain ant or victim to forego prosecution , also favors rejection. The Legislature 's adoption of N.J.S.A. 2C:40
- 26(b)

c learly shows it seeks to deter drunk driving in our State by imposing a mandatory minimum sentence of incarceration . The PTI Judge also found support for the State ' s reliance on
N.J.S.A. 2C:43
- 12(e) factors five , six, and seven . Defendant ' s history of Title 39 violations speaks for itself. As this court
has made clear:

The Legislature ' s purpose in requiring a mandatory period of " impriso nment " for this offense, with no possibility of parole, is also clear. Alternatives to jail, like the inpatient drug rehabilitation program involved in [ State v. French , 437 N.J. Super. 333 (App. Div. 2014)], or the home detention and community service pro grams at issue here, do not protect the public in the same way as incarceration. This public safety consideration is especially relevant in the9 A - 3953
- 15T2 case of a defendant who loses his or her driving privileges for DWI, but then continues to drive despite the lic ense suspension. [ State v. Rizzitello , 447 N.J. Super. 301, 315 (App. Div. 2016) (quoting State v. Harris , 439 N.J. Super. 150, 160 (App. Div. 2015)).]
Defendant ' s argument in favor of overturning the trial
court ' s ruling relies heav il y on defendant ' s attempt to seek treatment for his alcoholism. This argument is unavailing because it fails to comprehend what the Legislature intended when it adopted N.J.S.A. 2C:40
- 26(b). As we noted earlier, d efendant has
been given the opportunity to seek treatmen t for his addiction on multiple occasions. Indeed, when he was sentenced in 2012 for his third DWI conviction, he was sentenced to 180 days in the county

" except that the court may lower such term for each day, not exceeding 90 days, served participating in a drug or alcohol inpatient rehabilitation program approved by the Intoxicated Driver Resource Center [.] " N.J.S.A. 39:4
- 50(a)(3). (Emphasis added). The record reflects defendant served all of the 180 days in the county jail.
Defendant 's fourth DWI conviction is consistent with his nearly life
- long defiance of judicial authority and utter disregard for the welfare of his fellow motorists and pedestrians, whom he places in clear danger when he drives a car with a .25%
BAC. Our Supreme Cou rt made clear that " PTI is essentially an10 A - 3953
- 15T2

extension of the charging decision, therefore the decision to grant or deny PTI is a ' quintessentially prosecutorial function. '"
State v. Roseman , 221 N.J. 611, 62 4 (2015) ( quoting State v. Wallace , 146 N.J. 576, 582 (1996)). Therefore,

t he prosecutor ' s decision to accept or reject a defendant ' s PTI application is entitled to a great deal of deference. Trial courts may overrule a prosecutor ' s decision to accept or reject a PTI applicat ion only when the circumstan ces "' 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. '" [ Id. at 62 4
- 2 5 (quoting Wallace , supra , 146 N.J. at 582 ). ] Here, the trial court correctly applied this enhanced standard of review to uphold the prosecutor ' s rejection of
defendant ' s PTI application. Affirmed.