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State v. Schroth

April 1, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BRIAN C. SCHROTH, DEFENDANT-APPELLANT.



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

Approved for Publication April 3, 1997.

Before Judges Muir, Jr., Kleiner, and Coburn. The opinion of the court was delivered by Muir, Jr., J.A.D.

The opinion of the court was delivered by: Muir

The opinion of the court was delivered by

MUIR, JR., J.A.D.

On this appeal, we hold that the defendant, who violated the conditions of his admission into a pretrial intervention (PTI) program during the term prosecution was postponed, was properly returned to the criminal Justice system for prosecution even though the order terminating him from PTI was entered after the final date of the original postponement term. We accordingly affirm the trial Judge's orders which terminated defendant's participation in PTI and denied defendant's motion to dismiss the indictment against him. We also affirm the judgment of conviction that ensued from defendant's subsequent guilty plea and probationary sentence, although we modify the judgment in one minor respect.

The relevant facts are not in dispute. A Somerset County Grand Jury issued a multi-count indictment against defendant. One of the counts charged defendant with third-degree possession of cocaine. N.J.S.A. 2C:35-5a(1). The PTI program director recommended, and the prosecutor consented to, defendant's enrollment in the county PTI program. In defendant's application for enrollment, he acknowledged his understanding that he could be terminated from participation in the program and no recommendation for dismissal of the charges would be made if he did not adhere to the agreement controlling his admission.

Defendant signed the agreement or plan for counseling and supervision and entered the PTI program on October 8, 1993. The plan, which suspended proceedings against defendant until October 7, 1994, among other things, required defendant (1) to submit to drug abuse evaluation and treatment, if necessary; (2) to abide by PTI standard rules and conditions which proscribed further criminal conduct; (3) to pay certain penalties; and (4) to carry out the plan and its rehabilitation goals to the best of his abilities.

Prior to his admission into the program, Somerset Treatment Services evaluated defendant. Under his PTI supervision plan, defendant was to have follow-up aftercare by attending weekly Somerset Treatment Services group care sessions.

Defendant failed to comply with many of the conditions of his supervisory treatment program: he failed to report to treatment groups on a regular basis and relapsed into using drugs on several occasions; he failed to report to his PTI supervisor on a regular basis; he failed to pay any money toward a $1,000 D.E.D.R. penalty; and he tested positive for amphetamines on October 7, 1994. Additionally, although not tried on the charge prior to his dismissal from PTI, he was arrested in June 1994 for possession of drug paraphernalia//--a further indication of his noncompliance with the rehabilitative purposes of his PTI plan.

On September 28, 1994, defendant enrolled in another drug rehabilitation program at Somerset Medical Center. The enrollment inferably was motivated by his PTI supervisor's dissatisfaction with defendant's failure to comply with the supervisory plan. A report from that program indicated he was found cocaine-dependent on September 28, 1994. The program, on October 24, 1994, discharged him for failure to attend treatment sessions.

On September 29, 1994, defendant had signed, as had his attorney, an order extending his PTI supervision another year. The extension applied to the original charges and added the drug paraphernalia charge. Neither the prosecutor nor a Judge gave approval to the extension.

Defendant's noncompliance with the Medical Center's drug rehabilitation program apparently precipitated his PTI supervisor's recommendation that he be terminated from the program. On October 14, 1994, the counselor advised defendant of the recommendation and the intent to return him to prosecution unless he requested a court hearing. Defendant's counsel requested a hearing. On the hearing date, December 2, 1994, although sent a written notice of the hearing by counsel, defendant failed to appear. Judge Coleman, upon reviewing defendant's record of noncompliance with his counseling plan and after considering defense counsel's representation defendant was given written notice of the hearing, terminated defendant's enrollment in PTI and returned him to the criminal Justice system for prosecution. At the same time, the Judge issued a warrant for defendant's arrest.

Six months later, law enforcement officials arrested defendant. After Judge Arnold denied defendant's motion to dismiss the indictment against him, a motion based on a claim of entitlement to dismissal because his PTI enrollment had expired before his termination, defendant pled guilty to the drug possession charge. Judge Arnold sentenced defendant to the plea-negotiated probationary term conditioned on drug and alcohol abuse evaluation and treatment, if ...


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