On appeal from Superior Court of New Jersey, Law Division, Warren County, 00-03-00102A.
Before Judges Pressler, Ciancia and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2001
The State's appeal presents the issue of under what circumstances and for what reasons a defendant may be denied dismissal of the underlying charges after he or she successfully completes a Pre-Trial Intervention (PTI) program. In this case, the trial court granted defendant's dismissal from the PTI program over the objection of the State and without a hearing. For the following reasons, we affirm that order.
On January 25, 2000, defendant Christopher Allen was charged in Warren County by accusation with two counts of third-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6h, and one count of fourth-degree forgery, N.J.S.A. 2C:21-1a(1); and, by complaint, with two counts of theft by deception, N.J.S.A. 2C:20- 4a. The proceedings on those charges were postponed with the consent of the prosecutor, and defendant entered a PTI program for a period of twelve months beginning April 6, 2000.
Apparently unknown to the prosecutor at that time, defendant had been arrested in Hunterdon County on March 15, 2000, for possession of marijuana under fifty grams. That matter was disposed of in the Union Township Municipal Court where, on April 25, 2000, approximately three weeks after defendant was admitted to PTI, defendant received a conditional discharge.
On March 6, 2001, one month prior to the expiration of defendant's PTI program, the Warren County Prosecutor received the probation department's recommendation that the charges against defendant be dismissed since he had successfully completed all aspects of the PTI program. In the course of reviewing that recommendation, the prosecutor's office discovered the Hunterdon County pre-PTI program arrest and the subsequent conditional discharge granted after defendant entered Warren County's PTI program.
By letter dated April 17, 2001, the prosecutor informed the Union Township Municipal Court administrator about defendant's situation and his ineligibility on April 25, 2000, for a conditional discharge under N.J.S.A. 2C:36A-1(c)(3), because on that date he had already been admitted to the Warren County PTI program. The letter also indicated that the prosecutor's office would not consent to the dismissal of the Warren County charges pending Hunterdon County's action with respect to defendant's conditional discharge in that court.
By memo dated April 20, 2001, the probation officer assigned to defendant's case wrote to Judge Kingfield indicating that, despite the prosecutor's objection to the dismissal of the Warren County PTI charges, probation recommended dismissal because the Hunterdon County offense occurred prior to defendant's entry into PTI and he had successfully completed all of the PTI program requirements. The prosecutor's office responded by letter dated April 23, 2001, to Judge Kingfield characterizing defendant's motion for a conditional discharge as illegal under N.J.S.A. 2C:36A-1(c)(3) given his acceptance into the PTI program at that time. The letter also noted defendant's failure to comply with the conditional discharge requirements and that a warrant for his arrest had been issued by the Union Township Municipal Court on January 22, 2001. The prosecutor requested that Judge Kingfield order prosecution of defendant "in the ordinary course" instead of dismissing the charges.
On April 24, 2001, Judge Kingfield wrote to defendant's probation supervisor that he was declining to sign the dismissal of charges order given the prosecutor's position. The judge instructed the probation office to serve a notice of PTI termination upon defendant so that the issues raised by the prosecutor's office could be resolved. By letter dated the following day, defendant's counsel urged Judge Kingfield to sign the order of dismissal on the ground that the PTI program expired on April 6, 2000, rendering termination of the PTI essentially moot. Given defendant's successful completion of the PTI program requirements, he was entitled to an order of dismissal.
The probation office did not file a notice of PTI termination as directed by Judge Kingfield. With Judge Kingfield's retirement, this matter was assigned to Judge Pursel who issued an order of dismissal of defendant's Warren County charges on June 13, 2001. The order was accompanied by a written decision wherein the judge acknowledged the respective positions of the prosecutor and defendant concerning the propriety of the charges in the face of defendant's conditional discharge in municipal court on the marijuana possession offense nineteen days after defendant was admitted to the PTI program. However, the judge pointed to the absence of proof concerning what defendant may have said under oath at the municipal court proceedings which led to the conditional discharge, concluding that "what may have happened at the time defendant entered into conditional discharge in the municipal court is a matter properly addressed to the municipal court." Since the defendant was properly admitted into the Warren County PTI, and successfully completed the program, defendant "should be dismissed from PTI."
Judge Pursel found the prosecutor's refusal to consent to the dismissal insufficient grounds to bar his signing the order requested. The judge analogized the situation before him to that in State v. Fenton, 221 N.J. Super. 16 (Law Div. 1987), where Judge Haines held that an unadjudicated arrest was insufficient cause for terminating a defendant from PTI prior to its conclusion. Judge Pursel reasoned that "by analogy, after completing PTI, an unadjudicated arrest (such as a conditional discharge) does not meet the standard for withholding dismissal of the complaint/accusation against the defendant."
On appeal, the State argues that the trial court erred in entering its order of dismissal absent the prosecutor's consent and without a hearing, in that defendant's acceptance of a conditional discharge should have barred his consideration for another pre-trial ...