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State v. Rosario

Decided: December 8, 1989.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ARMANDO ROSARIO, DEFENDANT-APPELLANT



J.h. Coleman, Brody*fn1 and Muir, Jr. The opinion of the Court was delivered by Muir, Jr., J.A.D.

Muir

[237 NJSuper Page 64] After the Camden County Prosecutor refused to consent to defendant's diversion into the Camden Pretrial Intervention Program (PTI), and the trial judge found no patent and gross abuse of discretion in that refusal, defendant pled guilty to

possession of cocaine, a violation of N.J.S.A. 24:21.20(a)(1). Another trial judge sentenced defendant to three years probation conditioned on drug evaluation, any necessary treatment and other factors not pertinent to this appeal. When defendant entered his plea, he reserved his right to appeal the prosecutor's rejection of his participation in PTI. He now appeals that rejection, contending:

POINT I THE FAILURE TO SUBMIT DEFENDANT'S PTI APPLICATION TO THE PROGRAM DIRECTOR OF THE PRETRIAL INTERVENTION PROGRAM IN CAMDEN COUNTY AND TO RELY ON THE PROSECUTOR'S DECISION ALONE TO DETERMINE IF DEFENDANT WAS ELIGIBLE FOR PTI CONSTITUTED AN ABUSE OF DISCRETION ON THE PART OF THE TRIAL JUDGE, AND MANDATES REVERSAL OF THE COURT'S ORDER DENYING HIS ADMISSION TO PTI.

POINT II THE PTI PROGRAM IN CAMDEN COUNTY IN WHICH THE PROSECUTOR IS THE ONLY SUBSTANTIVE REVIEWER OF THE PTI APPLICATION, IS IN VIOLATION OF THE PRETRIAL INTERVENTION STATUTES, N.J.S.A. 2C:43-12 ET SEQ., AND THE PROGRAM MUST BE RESTRUCTURED TO CONFORM WITH THE PURPOSE AND INJUNCTIONS OF SAID STATUTE.

POINT III THE DENIAL OF THE DEFENDANT'S APPLICATION FOR ADMISSION INTO THE CAMDEN COUNTY PRETRIAL INTERVENTION PROGRAM CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION BECAUSE THE PROSECUTOR AND THE REVIEWING COURT FAILED TO CONSIDER ALL THE RELEVANT AND APPROPRIATE FACTORS.

A. The Failure Of The Camden County Prosecutor To Submit The Defendant's Application To The Program Director, And His Own Failure To Consider The Individual Characteristics Of The Defendant, Constituted A Patent And Gross Abuse of Discretion.

B. The Prosecutor And The Court Improperly Relied On The Nature Of The Offense As Grounds For Denying The Defendant Admission To PTI.

We affirm.

I.

Defendant, in a number of ways, contends the Code and R. 3:28 guidelines require that before a prosecutor can reject a PTI diversion application, the Program Director must first rule on the application. We disagree.

The New Jersey Supreme Court set the cornerstone for the structure of PTI programs in this State ...


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