On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 07-02-363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Parrillo.
After waiving indictment, defendant, Dennis Torre, pled not guilty to Accusation No. 07-02-363 charging him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Although the Pretrial Intervention Program (PTI) Supervisor recommended defendant as an appropriate candidate for admission to PTI, the Monmouth County Prosecutor rejected defendant's application. Defendant appealed the rejection and the Law Division judge, over the State's objection, admitted him into the program. The State appeals and we reverse.
The facts surrounding the offense are somewhat disputed. According to the victim, Jeremiah Rice,*fn1 he and a few friends went to a tavern known as "Red's," when he was approached on the second floor by defendant, who accused Rice of being gay. Rice responded that he was not gay and that defendant should "vacate the area." According to Rice, defendant got agitated and asked Rice "what [he] was . . . going to do about it." Rice pointed at defendant and replied "that's enough, outside." He then proceeded downstairs toward the exit, not knowing whether defendant was behind him. As Rice reached the area of the front door, he pushed it open and felt something hit him across the left side of his face. He looked down and realized that he had been hit by a bottle and that his hands and shirt were covered with blood. He was treated at the hospital for two cuts to his left cheek, which required eight stitches. He also had follow-up treatment at a plastic surgery center.
Patrolman David Hicks of the Red Bank Police Department responded to the scene along with Patrolman Patrick Kennedy where they were advised by two employees of Red's who witnessed defendant "smash a glass bottle in the face of a patron inside the bar." Both employees, as well as a friend of Rice's, pursued defendant on foot, meeting up with him at an intersection. At the scene, defendant told Hicks that "he was in fear of two subjects that approached him inside the bar and felt they were going to 'jump him.'"
A private detective interviewed three friends and fellow employees of defendant who went to Red's with defendant the night of the incident. Although they did not witness the incident, they explained that they were told by a bouncer at Red's that the fight occurred outside the tavern. Defendant's friends saw broken glass on the sidewalk outside the bar.
In defendant's brief submitted to the Law Division, the following version of the incident was attributed to defendant:
[Defendant] has maintained that once they were outside of the bar, Mr. Rice swung at him first. [Defendant] is right handed, and defended himself against Mr. Rice's attack by swinging his right hand. [Defendant] was unaware that he still had the glass in his right hand, and consequently struck Mr. Rice with the glass. [Defendant] did not intend to hit Mr. Rice in the face with the glass, but intended only to ward off Mr. Rice's blow which was directed at him.
The PTI Supervisor reiterated the facts revealed by Rice and investigating Patrolman Hicks. He also interviewed defendant who provided the following relevant version:
[Defendant] said that the victim started talking to him and his friends. He stated that he asked the victim jokingly, "are you buying the next drink." The defendant stated that victim called him "gay" and a "faggot" and that he (defendant) disgusts him. The defendant stated that he tried to tell the victim that he was joking. He said that the victim told girls at the bar that he (defendant) is gay. He stated that the victim told him that he was going to kick his ass outside. The defendant said that he went outside and the victim was outside with a friend. The defendant stated that he had a glass in his hand. He stated that the victim went toward him with closed fists, so he swung at the victim and hit the [victim] in the face with the glass. The defendant stated that he walked away and the victim's friend followed him. He said that the police came and he was arrested.
Recommending defendant's acceptance into the PTI program, the supervisor noted:
The defendant is a 37 year old male, father of two children . . . has been gainfully employed as a manager for Meridian Healthcare Systems for fifteen years . . . reported having mental issues*fn2 which he has been addressing for the past ten years . . . lacks a prior record and has been a law abiding citizen until the present incident occurred . . . [and] appeared motivated to comply with the conditions of PTI . . . appeared remorseful . . . and . . . eager to put this ...