On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 07-02-344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 June 28, 2007 order that admitted defendant D.B. into the Pretrial Intervention (PTI) Program over the objection of the Hudson County Prosecutor. While we agree with the judge's conclusion that the State improperly relied upon several inappropriate statutory factors and failed to consider some relevant facts, we disagree with her decision to order defendant into PTI. Instead, the judge should have remanded the matter so that the prosecutor could reassess defendant's eligibility in light of her ruling about those statutory factors. Accordingly, we reverse and remand.
In 2001, when he was twelve years old, defendant was charged with committing acts that would have constituted the first-degree crime of aggravated sexual assault if committed by an adult. In 2002, he was adjudicated delinquent on that charge and was sentenced to a three-year suspended sentence. As a result of that adjudication, he was required by Megan's Law, N.J.S.A. 2C:7-1 to -19, to register as a sex offender and notify police of any change of address.
Defendant immediately complied with that registration requirement by notifying local police in Middlesex County that he was residing with his father and he provided his father's address. At some point thereafter, defendant violated the terms of his probation and was ordered to enter and successfully complete the Bonnie Brae residential treatment program. As soon as he arrived at Bonnie Brae, defendant again registered with local police. In August of 2005, after he was discharged, defendant moved to his mother's apartment on Logan Avenue in Jersey City. Again, he promptly registered his new address with the Jersey City police department. Shortly after defendant moved in, his mother was evicted from her Jersey City apartment and forced to find a new place for herself and defendant to live. They moved to an apartment in Bayonne, and defendant promptly registered his new address with the Bayonne police department. The two lived in Bayonne from October 2005 through the spring of 2006. At that point, defendant was in his junior year in high school.
Before the school year ended, defendant's mother was evicted from her Bayonne apartment. She and defendant moved to Miami, Florida, but immediately after they arrived, defendant and his mother had a "falling out," the details of which are not contained in the record. As a result, defendant's mother bought him a bus ticket and sent him back to New Jersey by himself. At that point, he was seventeen years of age and a junior in high school. In July through November of 2006, defendant was homeless and lived mainly on the streets of New York City. It was during this period of homelessness that defendant was charged with committing Megan's Law violations in Jersey City and Bayonne for failing to notify those police departments of his change of address, in violation of N.J.S.A. 2C:7-2(d).*fn1
In late November or early December 2006, a Law Division judge's law clerk contacted defendant on his cell phone to advise him of a pending hearing on his Megan's Law tier classification, N.J.S.A. 2C:7-8. Defendant was aware that by failing to notify Jersey City police he had moved to Bayonne, and Bayonne police that he moved to Miami, he had violated his Megan's Law registration requirements and was subject to arrest.*fn2
Nonetheless, he promptly reported to that judge's courtroom for the tier classification hearing.
Upon his arrival in court, defendant was informed by court staff that there were outstanding charges pending for failing to register. Even though defendant was made aware that charges had indeed been filed, he remained in the courtroom to await the scheduled hearing. During the proceedings, he advised the judge that he was planning to live with his aunt in a different city and that he would be moving there shortly. In early December 2006, when defendant moved in with his aunt, he promptly registered his new address with that police department and returned to the judge with proof of his registration.
In February 2007, defendant was indicted for fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2(a)(count one), and fourth-degree failure to notify authorities of a change of address, N.J.S.A. 2C:7-2(d)(count two), arising out of the Bayonne charges. Later that month he was indicted on identical charges arising out of Jersey City.
Shortly after he was indicted, defendant applied for PTI. The Criminal Division Manager's Office reviewed his application and recommended that defendant be rejected. The April 27, 2007 rejection letter stated that defendant: failed to knowingly comply with the Megan's Law requirements. He stated to this officer that he couldn't register because he "would have had to give a park bench as his address." [Defendant] was aware that he was [obligated] to notify the municipality of his whereabouts, and chose to disregard that condition of Megan's Law. In addition, he has placed blame on his mother for moving around too much. . . . [He] also stated that his mother was moving to her cousin's house that only had one bedroom, and he would be forced to sleep in the hallway. [Defendant] then made the choice to be homeless, and non-compliant with the Megan's Law requirements. [Defendant's] cavalier attitude toward the Megan's Law requirements and his non-compliance with the laws of the State of New Jersey does not make him a good candidate for the PTI program.
An assistant prosecutor reviewed that recommendation and concurred with the decision to reject defendant from PTI.
On June 28, 2007, a hearing was held in the Law Division. In an oral opinion, the judge overruled the State's objection to PTI and admitted defendant into the ...