On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-04-0282.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Gilroy and Baxter.
In this appeal, we review a Law Division order unconditionally admitting defendant into the Pretrial Intervention (PTI) Program over the objection of the Cape May County Prosecutor. The prosecutor had agreed to admit defendant into the PTI Program, but only if defendant entered a plea of guilty, immediately applied for American citizenship, and agreed to remain enrolled in PTI for three years, the maximum period allowable by law.
After extensive oral argument, the judge observed that the prosecutor did not dispute defendant's suitability for enrollment in the program. The judge determined: the prosecutor imposed the three conditions solely because defendant was an illegal immigrant; the prosecutor's insistence that defendant enter a guilty plea violates the PTI Guidelines, R. 3:28, approved by the Supreme Court, which prohibit prosecutors from demanding a guilty plea as a condition of PTI enrollment; and the prosecutor's insistence on those three conditions was a clear error of judgment and a patent and gross abuse of discretion. On November 27, 2006, the judge entered a confirming order admitting defendant into PTI without those three conditions.
We agree with the prosecutor that the State is entitled to consider a defendant's status as an illegal immigrant along with other relevant factors. State v. Liviaz, 389 N.J. Super. 401, 403 (App. Div.), certif. denied, 190 N.J. 392 (2007). We conclude, however, that the trial judge properly determined that the prosecutor's insistence on the three conditions constituted a per se exclusion of this defendant from PTI based solely upon his illegal immigrant status. Accordingly, we affirm the decision of the trial court.
On March 13, 2006, a Wildwood Crest police officer stopped defendant Juan Ocampo because he was driving a vehicle with a defective muffler. In response to the officer's request that he produce identification, Ocampo, who was driving his employer's van, showed the officer a Mexican voter identification card and a Mexican driver's license, both of which bore a photograph of defendant. The officer believed the driver's license was fraudulent because it was of poor quality with blurred numbers and uneven lines. Defendant insisted that it was a legal license that had been issued by a government official in Mexico, but the officer believed otherwise and arrested defendant for possession of a fraudulent document. At the police station, defendant stated he was "very sorry" and explained that he did not want to have any problems with "this government." According to the arresting officer, Ocampo acknowledged that he was in this country illegally.
On April 11, 2006, a Cape May County Grand Jury returned an indictment charging defendant with the third-degree crime of exhibiting a simulated document, N.J.S.A. 2C:21-2.1(c), specifically the Mexican driver's license. Ocampo applied for admission to the PTI Program, and on July 31, 2006, a probation officer prepared a report recommending that defendant be accepted. The probation officer described defendant as "cooperative," and noted that he "expressed remorse over his involvement in the instant offense."
The probation officer provided information concerning defendant's background. She noted that defendant arrived in the United States in 1999 with his wife and two children, and two more children have been born in this country. Defendant was operating his own landscaping business, and had registered that business with state and federal authorities for taxation purposes. In addition to the income defendant was earning from his landscaping business, he was also working forty hours per week for a local construction company. His employer was withholding all required taxes from defendant's income.
The probation officer observed in her report that:
If it were not for [his] status [as an illegal immigrant], it is likely that the defendant would not have incurred criminal charges. [He] has maintained two positions of employment for several years and is the sole financial provider for his wife and four children. He has no known prior criminal history either in this country or outside of this country.
The report also specified that in an effort to reside in this country legally, defendant applied for a visa on May 23, 2006, at the ...