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State v. Mckeon

May 24, 2006


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 2004-10-1183-1.



Submitted February 6, 2006

Decided Before Judges Cuff, Lintner, and Gilroy.

The opinion of the court was delivered by GILROY, J.S.C. (temporarily assigned).

Defendant, John H. McKeon, Jr., appeals from the order of the Law Division of April 27, 2005, affirming the Burlington County Prosecutor's denial of his admission into the State's Pretrial Intervention (PTI) program, N.J.S.A. 2C:43-12. The question presented is whether a defendant may be excluded, pursuant to N.J.S.A. 2C:43-12g, from entry into PTI solely because the defendant previously received benefit of a supervisory treatment program, or its equivalent, in another state when charged with an offense that would not have been a crime in this State. Because we find that an otherwise qualified defendant should not be barred from PTI, we reverse and remand.

In 2002, defendant was charged with driving under the influence of alcohol (DUI) in the State of Pennsylvania, contrary to 75 Pa. Cons. Stat. Ann. § 3731.*fn1 The offense constituted a misdemeanor under Pennsylvania law. The charge was resolved by defendant entering the Accelerated Rehabilitative Disposition (ARD) program, a form of pretrial diversion authorized in Pennsylvania. 75 Pa. Cons. Stat. Ann. § 3807 (2005).*fn2 Defendant was charged with a second DUI offense in Pennsylvania in December 2003, and pled guilty to the offense in September 2004. Other than the two DUI offenses in Pennsylvania, and the present matter, defendant has never been charged with any other conduct considered under the laws of this State or any other state, to be a crime.

On October 19, 2004, a Burlington County Grand Jury charged defendant under Indictment No. 2004-10-1183-I with a single count of third-degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10a(1). On January 31, 2005, defendant applied for PTI. On February 18, 2005, the Criminal Case Manager rejected his application determining that he was statutorily barred because of his prior diversionary treatment in Pennsylvania. N.J.S.A. 2C:43-12g. On March 22, 2005, the prosecutor rejected his application for the same reason, and defendant appealed to the Law Division. Concluding "that it was the legislative intent to limit defendants to one diversionary program regardless of where that diversionary program occurs," the motion judge denied defendant's appeal on April 27, 2005. Under a plea agreement preserving his right to appeal from the denial of PTI, defendant pled guilty to the charge on May 16, 2005. Defendant was sentenced to one-year probation, and a six-month suspension of his driving privilege. All appropriate fines, fees and penalties were also assessed.

The issue concerns construction of N.J.S.A. 2C:43-12g:

g. Limitations. Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment under section 27 of P.L. 1970, c. 226 (C. 24:21-27), shall not be eligible for supervisory treatment under this section. However, supervisory treatment, as provided herein, shall be available to a defendant irrespective of whether the defendant contests his guilt of the charge or charges against him.

Defendant argues that because he has never been diverted into PTI, pursuant to N.J.S.A. 2C:43-12, or received supervisory treatment, pursuant to N.J.S.A. 24:21-27, or N.J.S.A. 2C:36A-1, the successor statute to N.J.S.A. 24:21-27, that he is not barred from admission into PTI under N.J.S.A. 2C:43-12g. Defendant contends that the statutory prohibition in N.J.S.A. 2C:43-12g, applies only when the prior treatment was received under the laws of this State. Alternatively, he asserts, that even if the prohibition is applicable when a defendant received prior diversionary treatment in another state, the prohibition is limited to where the charge in the other state constitutes a crime under the laws of New Jersey.

The State, citing the unreported decision of State v. Meehan, A-2500-80T4 (App. Div. Oct. 19, 1981),*fn3 counters that "supervisory treatment which constitutes a bar to a second diversion may be one which is afforded under the law of this State or another state with a comparable program." (slip op. at 3). The State argues that the "rationale behind the legislative intent is to prohibit supervisory treatment for those defendants who have already demonstrated that they are not amenable to rehabilitation through supervisory treatment; their prior supervisory treatment has not deterred them from engaging in subsequent criminal activity." The State asserts that whether the offense, for which a defendant may have received supervisory treatment in another state, constitutes a crime in New Jersey is not relevant to the exclusionary provision of N.J.S.A. 2C:43-12g.

PTI "represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system."

State v. Leonardis, 71 N.J. 85, 92 (1976) (Leonardis I). See also State v. Wallace, 146 N.J. 576, 581 (1996); State v. Lagares, 127 N.J. 20, 28 (1992); and State v. Bulu, 234 N.J. Super. 331, 341 (1989). "Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution" and "[a]ny defendant charged with a crime is eligible for [the program]." State v. Caliguiri, 158 N.J. 28, 35-36 (1999). "The [Court Rule] Guidelines and the statute . . . provide the prosecutor and criminal division manager with specific criteria to apply in reviewing a PTI application." Id. at 36. "The decision to grant or deny diversion to a defendant carries with it an obligation to fairly exercise the broad discretion given to the prosecutor, in light of the potential consequences to persons charged with criminal offenses." State v. Maldonado, 314 N.J. Super. 539, 544 (App. Div. 1998). "Therefore, in a ...

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