SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3953-15T2

STATE OF NEW JERSEY,

Plaintiff-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, attorney 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 defendant 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NOT FOR PUBLICATION WITHOUT THE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."

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.

September 5, 2017
2 A-3953-15T2

count of fourth degree operating a motor vehicle during a period 

of license suspension for a second or subsequent conviction for 

driving 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 connection 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 reconsider 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 prosecutor's rejection of his PTI 

application to the Presiding Judge of the Criminal Part. After 
3 A-3953-15T2

reviewing the parties' legal memoranda and considering the oral 

argument presented by counsel, the judge upheld the SCPO's 

rejection of defendant's PTI application. The judge found 

defendant did not show, by clear and convincing evidence, that the 

prosecutor's decision amounted to a patent and gross abuse of 

discretion. Defendant thereafter negotiated an agreement with the 

State through which he pleaded guilty to 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). 

Defendant 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 

county jail 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 county jail, 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 BE RECONSIDERED BECAUSE THE PROSECUTOR 

REJECTED IT BASED UPON IMPROPER 

CONSIDERATIONS.

A. The Prosecutor Applied A NonExistent 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. on 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 computer 
5 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 his face was flushed. When Gray spoke 

with defendant, he noticed defendant spoke slowly and 

deliberately. Based on these observations, Gray concluded 

defendant was under the influence of alcohol. Defendant told Gray 

he left the car parked because he anticipated 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 times the .08% presumptive 

level of intoxication under N.J.S.A. 39:4-50(a).

On January 30, 2012, nearly three years before this 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 DWI 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 been convicted 

of speeding, reckless driving, unsafe operation of a motor vehicle, 

and a variety of other moving violations. Defendant was nearly 
6 A-3953-15T2

fifty-three years old when he was arrested and convicted for his 

fourth DWI charge. 

In support of his PTI application, 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 inform 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 program on January 22, 2015, fifteen days 

after his arrest for his fourth DWI charge. The program will give 

defendant "an aftercare recommendation and [he] will 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 addressed directly to the prosecutor, 

defense counsel asserted that defendant is a married 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 his 
7 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 stated:

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 amenability to short term 

rehabilitation.

The judge who decided defendant's appeal in the Criminal Part 

ultimately accepted the State's position. The judge 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 factor 

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. Defendant had a .25% BAC at the time of his arrest for

DWI; and this arrest occurred less than three years after his tenyear suspension of his driving privileges for his third DWI 

conviction. As for factor three, which addresses the motivation 

and age of the defendant, the State asserts defendant's age 

eliminates the possibility that this was a mere youthful 

indiscretion. Instead, defendant'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 

complainant or victim to forego prosecution, also favors 

rejection. The Legislature's adoption of N.J.S.A. 2C:40-26(b) 

clearly 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 "imprisonment" 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 programs at issue here, 

do not protect the public in the same way as 

incarceration. This public safety 

consideration is especially relevant in the 
9 A-3953-15T2

case of a defendant who loses his or her 

driving privileges for DWI, but then continues 

to drive despite the license 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 heavily 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, defendant has 

been given the opportunity to seek treatment 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 Court made clear that "PTI is essentially an 
10 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, 624 (2015) (quoting State v. 

Wallace, 146 N.J. 576, 582 (1996)). Therefore,

the 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 application only when the 

circumstances "'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 624-25 (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.