On appeal from Superior Court, Law Division, Bergen County.
Petrella, R.s. Cohen and A.m. Stein.
The Bergen County prosecutor appeals from an order entered in the Law Division denying the State's motion to terminate the participation of Daryle P. Pellegrino in the county's Pretrial Intervention Program (PTI).
Pellegrino was admitted to PTI on September 12, 1989 in Bergen County in connection with the robbery of a pocketbook from an elderly woman in the parking lot of the Shop-Rite Supermarket in Rochelle Park on May 23, 1989. Upon entering PTI, all criminal proceedings against Pellegrino were postponed for six months. On March 16, 1990 his continuance in PTI was approved until September 12, 1990. During this time Pellegrino was charged in New Brunswick with distribution of LSD to an undercover police officer on March 28, 1990 in violation of N.J.S.A. 2C:35-5. The event occurred at Pellegrino's fraternity house at Rutgers University where he was then enrolled as a student. At some time thereafter, the Bergen County Prosecutor was advised of the charges.
On September 9, 1990 PTI was continued until March 12, 1991, and then again continued until September 12, 1991.
Pellegrino pleaded guilty on June 27, 1991 to the charge of distribution of LSD, a second degree offense (N.J.S.A. 2C:35-5), and was sentenced to three years of probation with the condition that he undergo alcohol evaluation, complete 50 hours of community service and pay $94 in restitution. The usual Drug Enforcement and Demand Reduction (DEDR) penalty and Violent Crimes Compensation Board (VCCB) penalty were imposed.
As a result of the drug distribution conviction, the Bergen County PTI director moved on September 5, 1991 to terminate PTI. At the PTI hearing it was argued on Pellegrino's behalf that he should not be terminated from PTI because he had distributed the LSD as an "accommodation" to a fraternity brother; had made no money from the transaction; and was not a drug user. Reference was also made to the fact that Pellegrino had been seeking psychological counselling for emotional problems.
The Judge refused the prosecutor's request to terminate PTI and ordered that Pellegrino be readmitted to the program for one more year. The Judge also transferred the matter to Middlesex County and imposed another $1,000 DEDR penalty and another $50 laboratory fee.
Essentially, Pellegrino urges that the court apply the same standard of review as in probation revocation matters, relying on State v. Devatt, 173 N.J. Super. 188, 194, 413 A.2d 973 (App.Div.1990), in which the court saw no reason to distinguish between probation revocation and PTI termination in terms of due process requirements. However, the statutes and standards for termination of PTI and probation revocation differ. With respect to PTI, N.J.S.A. 2C:43-13e provides:
Violation of conditions. Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of participant from the supervisory treatment program, the charges against the ...