SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0401-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH M. EIZAGUIRRE,

Defendant-Appellant.

Submitted November 15, 2018 – Decided

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey, Law 

Division, Bergen County, Indictment No. 15-02-0182.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stephen P. Hunter, Assistant Deputy Public 

Defender, of counsel and on the brief).

Dennis Calo, Acting Bergen County Prosecutor, 

attorney for respondent (William P. Miller, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and on the brief; John J. Scaliti, Legal 

Assistant, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 15, 2019
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Defendant Joseph M. Eizaguirre appeals the February 22, 2016 Law 

Division decision denying him entry into the pretrial intervention (PTI) 

program. See N.J.S.A. 2C:43-14 to 43-20; R. 3:28. He further appeals the June 

23, 2017 imposition of an eight-year state prison term on his subsequent guilty 

plea to second-degree knowingly leaving the scene of an accident resulting in 

death, N.J.S.A. 2C:11-5.1. We affirm.

When defendant was sentenced, the remaining counts of the indictment 

were dismissed: second-degree vehicular homicide, N.J.S.A. 2C:11-5; thirddegree causing death while driving with a suspended license, N.J.S.A. 

2C:40-22(a); and third-degree endangering an injured victim, N.J.S.A. 2C:12-

1.2. The charges arose from an incident which occurred July 26, 2014.

As taken from the undisputed facts found by the judge, at approximately 

4:49 a.m. a Carlstadt police officer was flagged down by a pedestrian. The 

officer discovered the body of a man lying in the middle of the roadway, near 

his parked truck. Police later obtained surveillance video from a nearby business 

that depicted a white bread van striking the victim as he stood next to his truck. 

The driver stopped his van, turned off the headlights, then turned them back on 

again, and drove on. By mid-afternoon, police had located the van parked in the 

lot of the business that owned it. The victim's blood was found on the van's
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damaged headlight. By checking the morning's records, police identified 

defendant as the driver.

Officers drove defendant from his home to the station to be interviewed. 

He eventually acknowledged striking the victim and leaving the scene because 

he was frightened.

At the time, defendant was operating the vehicle on a suspended license, 

and had the following motor vehicle history: October 16, 2009, operating a 

motor vehicle with fictitious plates and improper child restraints; February 2, 

2010, failure to wear a seatbelt; February 9, 2010, fictitious plates; February 26, 

2010, failure to observe traffic control; June 25, 2010, failure to wear a seatbelt; 

June 29, 2010, careless driving; December 27, 2010, fictitious plates; January 

13, 2014, use of cell phone while driving; February 3, 2014, obstructed traffic; 

July 10, 2014, speeding; and January 6, 2015, unsafe operation. When 

sentenced, defendant was fully employed, twenty-five years old, had obtained 

an associate's degree in criminal justice, and was married with a two-year-old 

child. He had no criminal history, volunteered in the community, and hoped to 

become a police officer.

After the accident, defendant was diagnosed as suffering from sleep 

apnea, which his expert attributed as the cause of the accident. Further, the 
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expert opined that it was "likely . . . that [defendant] panicked because he didn't 

know what happened, . . . [and] put together a story that made sense to him since 

he fell asleep at the wheel and did not know what had actually happened." The 

expert also said that "[m]emory loss is a prominent feature of several disorders 

including [s]leep [a]pnea."

The trial judge remanded the application to the prosecutor's office for 

reconsideration, but denied defendant's appeal from the second rejection. In her 

statement of reasons, the judge found that the prosecutor took into account the 

nature of the offense and the facts of the case, N.J.S.A. 2C:43-12(e)(1), (2). This 

included the fact that defendant's first instinct, after he struck the victim, was to 

shut off his headlights and leave the scene, showing callous indifference to a 

dying man. Defendant finished his deliveries, parked his truck, and went home.

The victim's widow was interested in the imposition of traditional 

prosecution and a maximum sentence for the reckless killing of her husband. 

Thus, the state took into account the desire of the victim to not forego traditional 

prosecution, N.J.S.A. 2C:43-12(e)(4). Insofar as the needs and interests of 

society, N.J.S.A. 2C:43-12(e)(7), (17), the prosecutor noted that two of the 

crimes were second-degree offenses that carried a presumption of incarceration, 

and that defendant had also been charged with causing death while 
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unlicensed/suspended pursuant to a 2001 legislative amendment to vehicular 

homicide and vehicular assaults. N.J.S.A. 2C:40-22. That the Legislature 

enacted the amendment indicated its concern regarding the offense and its

interest in traditional prosecution.

When considering N.J.S.A. 2C:43-12(e)(14), the State concluded that 

these three separate offenses required traditional prosecution because of the 

societal interest in addressing the crimes, including the fact that the No Early 

Release Act, N.J.S.A. 2C:43-7.2, applied to vehicular homicide or death by auto.

The court observed that the diagnosis of sleep apnea and defendant's 

positive lifestyle characteristics could not overcome the reasoned analysis of the 

prosecutor. Thus, the prosecutor's rejection of the application was not a patent 

and gross abuse of discretion given the severity of the crime, the charged 

offenses, and the deliberate nature of defendant's decision to leave the scene. 

For those reasons, the judge did not order defendant into PTI.

At defendant's sentencing hearing, a different judge stressed defendant's 

motor vehicle history. She found aggravating factors three and nine, and placed 

the greatest weight on factor nine. The judge's concern, because of defendant's 

motor vehicle history, was that defendant might engage in this type of conduct

again in the future. N.J.S.A. 2C:44-1(a)(3). She added as to the need to deter:
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"[y]ou can't have an accident, inflict -- hit a pedestrian and leave." N.J.S.A. 

2C:44-1(a)(9). The judge declined to find mitigating factor four, N.J.S.A. 

2C:44-1(b)(4), because she considered the expert report regarding defendant's 

sleep apnea to be inconclusive regarding the cause of the accident, or defendant's 

conduct in leaving the scene. The judge perceived the sleep apnea diagnosis as 

"a triable issue," but not an excuse or even an explanation for defendant's 

departure from the scene.

Because defendant's insurance company paid damages to the victim's 

family, the judge found mitigating factor six, N.J.S.A. 2C:44-1(b)(6); however, 

she accorded that factor slight weight. She also found mitigating factor seven, 

N.J.S.A. 2C:44-1(b)(7), as defendant had no prior criminal history. 

Additionally, the judge found mitigating factor eleven, as defendant did have a 

young child who would be losing the benefit of her father's companionship. 

N.J.S.A. 2C:44-1(b)(11). She concluded the aggravating factors substantially 

outweighed the mitigating and therefore sentenced defendant to eight years.

On appeal, defendant raises the following issues for our consideration:

POINT I

THE PROSECUTOR'S REJECTION OF 

DEFENDANT'S PTI APPLICATION CONSTITUTED 

A PATENT AND GROSS ABUSE OF DISCRETION 

BECAUSE THE PROSECUTOR FAILED TO 

CONSIDER ALL THE RELEVANT FACTORS, 
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INCLUDING DEFENDANT'S SLEEP APNEA, 

RESULTING IN A CLEAR ERROR OF JUDGMENT 

WHICH SUBVERTED THE GOALS UNDERLYING 

THE PTI PROGRAM. 

POINT II

THE SENTENCE WAS EXCESSIVE. U.S. Const.

Amend. VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 12.

As the Supreme Court has recently reiterated, "PTI is essentially an 

extension of the charging decision, [and] therefore the decision to grant or deny 

PTI is a 'quintessentially prosecutorial function.'" State v. Roseman, 221 N.J. 

611, 624 (2015). Prosecutors enjoy broad discretion in making these decisions. 

Our review of them is "severely limited." State v. Negran, 178 N.J. 73, 82 

(2003). We overrule only when it is clear that the prosecutor's decision refusing 

to admit a defendant into the program is a patent and gross abuse of discretion. 

Roseman, 221 N.J. at 624-25 (citations omitted); see also R. 3:28-6(b)(1). In 

order to establish such a patent and gross abuse of discretion, a defendant must 

demonstrate that the prosecutor's decision was not premised on a consideration 

of all relevant factors, was based upon a consideration of irrelevant or 

inappropriate factors, or amounted to a clear error in judgment. State v. 

Rizzitello, 447 N.J. Super. 301, 313 (App. Div. 2016) (quoting Roseman, 221 

N.J. at 625).
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Furthermore, in cases where a defendant faces first or second-degree 

charges, as set forth in Guideline 3(i), a presumption exists against admission. 

See Roseman, 221 N.J. at 622. In order to overcome that presumption, a 

defendant must demonstrate compelling reasons which would make a decision 

against enrollment arbitrary and unreasonable. Ibid. Overcoming such 

presumptions requires a showing of something extraordinary or unusual about 

the defendant. Id. at 622-23.

Such a showing has not been made. This defendant has failed to overcome 

the presumption against admission. Defendant's diagnosis of sleep apnea, 

assuming it is accurate, does not explain his willful departure from the scene of 

the accident, the continuation of his delivery route, and his return home at the 

end of the work day. Rather, the circumstances depict a knowing and conscious 

decision to leave the victim, who was at least injured, in the middle of the 

roadway at dawn. While defendant may have suffered from sleep apnea, and 

was indeed a relatively law-abiding individual with a family and workplace and 

educational accomplishments, these considerations are insufficient to establish 

compelling reasons.

The prosecutor gave an individualized assessment of the statutory factors, 

and explained the reasons defendant's admission into PTI would not advance the 
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goals of the program. The prosecutor considered factors other than the victim's 

unwillingness to consent to defendant's admission into PTI. Thus, we see no 

error in the judge's decision affirming defendant's rejection from the program.

With regard to defendant's challenge to his sentence, the sentencing 

judge's analysis of the aggravating and mitigating factors was based on the 

record. Motor vehicle offenses can be included in the calculus of evidence 

supporting aggravating factor three. See State v. Lawless, 423 N.J. Super. 293, 

305-06 (App. Div. 2011) (in a vehicular homicide case, the sentencing judge 

appropriately cited the defendant's "substantial history of driving while 

intoxicated and in some instances while his license was suspended" in finding 

aggravating factor three), aff’d, 214 N.J. 594 (2013); State v. Devlin, 234 N.J. 

Super. 545, 557-58 (App. Div. 1989). Aggravating factor nine in this case had 

particular weight in light of the nature of the offense, namely, the departure from

the scene by a motorist who had inflicted grave injuries in the course of a motor 

vehicle accident. Because of the weight the judge accorded the aggravating 

factors, she concluded that they outweighed the mitigating. So long as that 

assessment is supported by the evidence, it will be upheld. See Lawless, 214 

N.J. at 606; State v. Blackman, 202 N.J. 283, 297 (2010). A sentence will be 

sustained when the statutory factors are properly balanced and supported by 
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competent credible evidence. State v. Case, 220 N.J. 49, 65 (2014). Given our 

deferential standard of review, we do not disturb this sentence. See Lawless, 

214 N.J. at 606.

Affirmed.