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State v. Molino

July 16, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOSEPH M. MOLINO, JR., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 06-05-00721 and 06-05-00801.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 3, 2007

Before Judges Axelrad and Winkelstein.

The Ocean County Prosecutor appeals from a Law Division order admitting defendant, Joseph Molino, into the Pretrial Intervention Program ("PTI") over his objection. Since defendant failed to clearly and convincingly establish that the Prosecutor's decision was a patent and gross abuse of his discretion, we reverse the order and remand the case for processing in the ordinary course.

On May 9, 2006, an Ocean County Grand Jury returned indictment number 06-05-721, charging defendant with four counts of third-degree burglary, N.J.S.A. 2C:18-2; and two counts of theft, N.J.S.A. 2C:20-3, one of which is a fourth-degree crime and the other a third-degree crime. On May 23, 2006, an Ocean County Grand Jury returned indictment number 06-05-801, charging defendant with one count of third-degree possession of CDS (Alprazolam), N.J.S.A. 2C:35-10a(1).

The crimes charged against defendant are as follows. On August 31, 2005, defendant committed a burglary and a third-degree theft by unlawfully entering the home of Amanda and Michael Schatek, at Pinehurst Drive in Little Egg Harbor Township, and stealing a variety of specifically identified items. According to defendant's confession, he stole bottles of liquor and the two people who accompanied him, Phil Surace and "Kevin," who were not charged, stole jewelry, a play station, and pills. The Schateks sent a victim statement expressing feelings of fear and anger, and further commenting:

We feel the person or persons responsible for this violation of our lives, should definitely do jail time and pay back the loss of our personal items and maybe lots of counseling to straighten out his life before it's too late or before there are more victims.

On January 27, 2006, defendant was arrested by a Little Egg Harbor police officer for underage possession of alcohol after the vehicle he was operating was stopped for weaving on the highway and the officer observed unopened and opened bottles of beer in the car. The officer also seized a marijuana cigarette located in the ashtray and a pill on defendant's person, which later tested positive for Alprazolam, a schedule IV drug.

Defendant admitted that on February 12, 2006, he committed his second burglary by breaking a window and unlawfully entering the home of Joseph Forti at Kansas Road in Little Egg Harbor Township with Devon Ewert and a juvenile, S.S. According to defendant, they could not find anything worth stealing and left.

They then unlawfully entered Eileen Mika's residence located at Iowa Court in Little Egg Harbor Township. In addition to the burglary, defendant and Ewert were also indicted for fourth-degree theft for stealing fishing poles and half a case of Snapple Iced Tea from the residence, most of which were returned to the victim. On February 15, 2006, defendant, Ewert and three male juveniles were apprehended inside the residence of Diane and Walter Winterbottom, located at Overlook Drive in Little Egg Harbor Township, after entering without permission. The aforementioned indictments ensued.

On June 26, 2006, defendant applied for entry into the PTI program. On August 10, 2006, the PTI Director recommended nineteen-year-old defendant for enrollment into the PTI program, noting he "appears to be a good candidate . . . due to his lack of prior contact with the judicial system and willingness to comply with the conditions of the PTI program."

By letter of September 21, 2006, the prosecutor rejected defendant's application for PTI ...


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