On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 06-08-0626.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges S.L. Reisner and Baxter.
In this appeal, we review a February 28, 2007 Law Division order unconditionally admitting defendant into the Pretrial Intervention Program (PTI) over the objection of the Cape May County Prosecutor. We affirm.
On July 20, 2006, Ocean City police were dispatched to 9th and Bay Avenue to investigate a report of a motor vehicle accident. Upon arrival, they observed a vehicle in the middle of the street with two flat tires on the passenger side. Further investigation revealed that the vehicle had struck the curb, a light standard and two city signs, causing a total of $4,376 in damage to the light standard and the signs. The driver, defendant Juan Gutierrez, was unharmed, but appeared intoxicated. After defendant failed a field sobriety test, he was arrested for driving while intoxicated (DWI). During a search of defendant incident to that arrest, police found .008 grams of cocaine.
While at police headquarters, defendant told police that he was a citizen of Colombia, and that his visa had expired.*fn1 When police contacted Immigration and Customs Enforcement (ICE), police were told they need not detain defendant on the immigration matter.
In August 2006, defendant was indicted for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10. Shortly thereafter, he applied for PTI. A probation officer prepared a report, in which she noted that defendant is a Colombian citizen "whose status in this country is presently 'withholding deportation.'" She attached to her report several documents defendant provided: a valid New Jersey driver's license, a valid Employment Authorization Card issued by the United States Department of Homeland Security that was imprinted with his thumbprint, and a Social Security card that bore the notation "valid for work only with DHS authorization."
The probation officer also reported that until recently, defendant had maintained "lawful, gainful" employment. Describing him as "cooperative," the probation officer pointed to defendant's enrollment in an outpatient drug and alcohol treatment program, and his "amenability to treatment, [which] bode well for the likelihood of success with PTI services." Finally, she noted that defendant had no known criminal record. She concluded her report by recommending that defendant be accepted into PTI.
Despite that recommendation, an assistant prosecutor rejected defendant's application. The prosecutor conceded that applicants who are charged with possession of CDS are "routinely placed into pretrial intervention." He nonetheless rejected defendant from PTI and explained that "the primary reason is [defendant's] status in this country." The prosecutor reasoned that:
[defendant] has chosen to commit a criminal act every day that he remains in this country illegally. This behavior is not indicative of an honest person who has engaged in an aberrant single episode of criminal activity. Rather it is indicative of a person who does not feel bound by the law when it is not consonant with his own desires.
The State provided two additional reasons for rejecting defendant from PTI: (1) the "outrageous" manner in which defendant operated his vehicle on the day in question; and (2) defendant was working "under the table."
After oral argument, the judge concluded that "there is virtually nothing here that would disqualify this defendant from . . . being admitted to pretrial intervention." In reaching that conclusion, the ...