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State v. Fitzsimmons

December 26, 1995


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication December 26, 1995.

Before Judges Pressler, Keefe and A.a. Rodriguez. The opinion of the court was delivered by Keefe, J.A.D.

The opinion of the court was delivered by: Keefe

The opinion of the court was delivered by KEEFE, J.A.D.

On the State's motion for reconsideration, the Law Division Judge reversed his prior ruling and rejected defendant's application for participation in the Pre-trial Intervention Program ("PTI"). Thereafter, defendant pled guilty to two counts of third degree burglary in connection with an accusation, and also pled guilty to third degree distribution of a controlled dangerous substance and distribution of a controlled dangerous substance within 1,000 feet of school property in connection with an indictment. Pursuant to the plea agreement, a second Law Division Judge imposed a sentence of five years probation on the condition that defendant enter into a ninety day inpatient drug rehabilitation program.

Defendant now appeals from the Law Division judgment denying his participation in PTI. He contends that the Judge erred by entertaining the State's motion for reconsideration out-of-time, and, alternatively, that the prosecutor's rejection of defendant's participation in PTI constitutes a clear error of judgment and gross abuse of discretion. We agree with defendant's contentions and reverse.

This is the second time this matter comes before us. On the first occasion, the State appealed from a Law Division judgment holding that the State had abused its discretion in rejecting defendant's participation in PTI. That Judge ordered defendant's participation in PTI on certain conditions. The Judge's reasons are contained in the following passage taken from his bench opinion of April 30, 1993.

The Court finds that the State has abused [it's] discretion by failing adequately to account for the self-willed, vigorous rehabilitation that this defendant has undergone. The Court also finds that the State has considered irrelevant factors by suggesting the fear of the victims, but producing no indication from the victims that they, in fact, fear this young man; and by suggesting that because the drug problem existed for sometime in his life prior to these arrests, it is not likely to be eradicated in the thirteen months.

At the time the first Law Division judgment was entered, the two burglary charges stemming from the incidents of March 13, 1992 and April 7, 1992 were the only formal charges pending against defendant. However, the Judge was aware of the fact that drug distribution charges, stemming from incidents that occurred on March 27, 1992 in the same county, were pending without formal Disposition having been made by way of indictment. Although the charges were not formally before the court at that time, the Judge considered those charges in coming to his Conclusion concerning defendant's qualification for participation in PTI. *fn1

In our unreported opinion of September 28, 1993, we also considered the burglary charges which were the subject of the PTI application as well as the drug charges, and observed that all of the events took place during a "three-week crime spree, [when] defendant was only three or four months past his eighteenth birthday." *fn2 We further noted that defendant had no prior record of juvenile delinquency, but had apparently been a substance abuser since the age of twelve. We further agreed with the trial Judge that, in recognition of his drug problems, defendant had, since his arrest, participated in "an impressive and apparently successful rehabilitation program."

However, we viewed the prosecutor's rejection of defendant's participation differently than the Law Division Judge. Instead of finding that defendant's rejection resulted from prosecutorial abuse of discretion, we concluded that the prosecutor simply erred in considering all relevant factors necessary to make the proper judgment. We did so because our review of the record satisfied us that "one of the major reasons for [the prosecutor's] denial was the concern that the short-term supervision characteristic of PTI admission would be inadequate to insure defendant's rehabilitation." We were concerned that the prosecutor was laboring under the view that PTI supervision could be ordered only for one year. We noted that N.J.S.A. 2C:43-13c was amended by L.1988, c. 44 to extend the maximum allowable period of PTI supervision from one to three years. However, because the court rule had not yet been amended to conform to the statute, we were concerned that the prosecutor may have overlooked the amendment when he used the phrase in expressing concern about the limits of available "short-term" PTI supervision.

Thus, we remanded the matter to the prosecutor for further consideration, State v. DeMarco, 107 N.J. 562, 567, 527 A.2d 417 (1987), with the following observation for guidance on remand.

We understand that in the prosecutor's judgment the negative considerations could not be outweighed by short-term supervision. But we think it clear that the opportunity for extended supervision may be of sufficient significance to change the balance not only in terms of the ultimate success of defendant's rehabilitation program and the permanence of his recovery but also in terms of the prosecutorial assessment of defendant's likelihood of committing additional crimes - an assessment which is not fairly supported by this record. In sum, because individual evaluation is at the heart of PTI evaluation, the possibility of an extended supervision may induce the prosecutor to take a more generous approach to this defendant. We are also of the view that that possibility will require the prosecutor to focus, as he should, on the issue of whether despite defendant's remarkable rehabilitation, the countervailing public interest nevertheless demands prosecution of these third-degree offenses.

We also recommended a formal consolidation of defendant's PTI application in connection with the drug charges with the PTI application ...

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