ALISA FORMAN VS. MARK FORMAN (FM-13-0785-11, MONMOUTH COUNTY AND STATEWIDE), A-1904-14T2

Miguel A. Soto was tried by jury and convicted of N.J.S.A. 2C:40-26(b) (operating a vehicle while license suspended for a second or subsequent DWI), and the judge separately found violations of N.J.S.A. 39:3-40 (failure to yield to a pedestrian) and N.J.S.A. 39:4-36 (driving while privileges suspended).
Soto applied for Pretrial Intervention (PTI); the Criminal Division Manager recommended denial based on the mandatory minimum for 2C:40-26 and Soto’s multiple prior license suspensions following DWIs.
The Middlesex County Prosecutor declined to consent to PTI, citing Soto’s history of repeated DWI-related suspensions and asserting a practical presumption against PTI for 2C:40-26 cases.
During trial, MVC records tying the license suspensions to Soto were produced mid-trial after cross-examination raised identity issues; the court admitted the documents and testimony and gave limiting instructions.
Soto raised three principal appellate claims: (1) Prosecutor abused discretion in denying PTI (per se rule against 2C:40-26), (2) erroneous admission of late-disclosed MVC evidence, and (3) prosecutorial misconduct in summation; he also argued the 39:3-40 conviction should merge into the 2C:40-26 conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s denial of PTI	Prosecutor argues individualized review found Soto unsuitable given repeated DWI suspensions and statutory sentencing consequences	Soto argues prosecutor applied a de facto per se bar to all 2C:40-26 applicants and misapplied PTI factors	Denial affirmed: no patent and gross abuse of discretion given Soto’s record and prosecutor’s factor-by-factor review
Admission of mid-trial MVC records	State argues it was surprised by defense implication of mistaken identity; records were relevant and produced when discovered	Soto argues late disclosure was highly prejudicial and violated discovery rules, denying fair trial	Admission affirmed: trial court did not abuse discretion; limiting instruction appropriate
Prosecutorial misconduct in summation	State contends remarks responded to defense summation and were not so prejudicial; defense made no timely objections to some remarks	Soto contends prosecutor denigrated defense and improperly referenced prior DWIs to inflame jury	No reversible error: objections were limited or untimely; comments were responsive and court curtailed contested remarks
Merger of 39:3-40 into 2C:40-26	State treats offenses as separately punishable	Soto contends 39:3-40 should merge into 2C:40-26	Affirmed convictions but remanded to merge 39:3-40 into 2C:40-26 conviction and correct judgment of conviction

221 N.J. 611 (discusses PTI individualized assessment and deference to prosecutor) (State v. Roseman)
193 N.J. 507 (PTI factors include amenability to correction and responsiveness to rehabilitation) (State v. Watkins)
447 N.J. Super. 301 (App. Div. decision rejecting categorical PTI bar for 2C:40-26 but upholding denial where defendant’s history showed defiance of suspensions) (State v. Rizzitello)
148 N.J. 469 (standard of review for evidentiary rulings; abuse of discretion) (State v. Marrero)
212 N.J. 365 (standards for evaluating prosecutorial misconduct) (State v. Smith)
161 N.J. 515 (importance of timely objections to preserve claims of prejudicial summation) (State v. Timmendequas)
249 N.J. Super. 336 (prosecutor’s responsive summation allowed where defense impugned the investigation) (State v. Engel)