On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-11-00443.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Axelrad and Messano.
Defendant Eric Dela Luz-Martinez appeals from the prosecutor's denial of his application for admission into the Pre-Trial Intervention Program (PTI) arguing the decision was the product of a patent and gross abuse of discretion. The salient facts are as follows.
On July 17, 2006, members of the Greenwich Township Police Department were called to the parking lot of the local Applebee's Restaurant on a complaint of damage to two vehicles. When police officer Sean McLaughlin arrived at about 2:18 a.m., he spoke to Brittany M. Murray, an employee of the restaurant.*fn1
She explained that when the restaurant closed near midnight, she and a co-worker friend were waiting in the parking lot for the arrival of two other friends. Murray noticed defendant's car at the back of the parking lot.
Defendant also worked at the restaurant and had been Murray's boyfriend for several months prior to their recent break-up. Murray and her friends left the parking lot in one vehicle and proceeded to another friend's home. When they returned to the restaurant at about 2:15 a.m., two of their vehicles had been vandalized. All four tires on each car were flattened and deep scratches had been carved in the paint of each vehicle. The total amount of damage to both automobiles exceeded $5000.
Later that day, defendant repeatedly attempted to call Murray on her cell phone. At 3:00 a.m., on July 18, while in the company of her friend, Murray answered the phone and placed the call on speakerphone. Defendant admitted that he damaged the two cars using a screwdriver and warned Murray that he did not know what he would do if he saw her again in the company of another man. Murray and her friend contacted the police who took sworn statements from both women regarding the conversation.
The police attempted to contact defendant through the restaurant, however they were unsuccessful. On July 20, 2006, Applebee's director of human resources contacted the police and advised them that defendant's social security number was not valid. On August 2, 2006, defendant voluntarily responded to police headquarters with his cousin. After being advised of his Miranda rights,*fn2 defendant admitted damaging the vehicles because he was angry that Murray had terminated their relationship and became jealous when he saw her in the company of a male friend. Defendant also admitted he was in the United States illegally, having paid an unknown individual to escort him "through a tunnel" from his native Mexico. Defendant's cousin told the police that he and defendant had purchased phony social security cards from an unidentified male in Easton, Pennsylvania. Defendant was arrested and charged with two counts of criminal mischief in the third degree, N.J.S.A. 2C:17-3(a)(1).
Defendant applied for admission into PTI but was rejected by the program director in a letter dated September 22, 2006. Her reasons for rejection were: 1) "[t]he crime . . . defendant [was] charged with constitute[d] part of a continuing pattern of antisocial behavior or the defendant ha[d] a record of criminal and penal violations and present[ed] a substantial danger to others. N.J.S.A. 2C:43-12e(8) . . . [and] (9)"; and 2) "[defendant] [was] in the United States illegally and committed a criminal offense show[ing] a continuing pattern of antisocial and criminal behavior, which demonstrate[d] that [defendant's] attitude [was] not amenable to the terms and conditions of the PTI program. N.J.S.A. 2C:43-12e(3,5,6,7,8,11,13,14, and 17)." The prosecutor concurred with the director's recommendation.
On September 26, 2006, defendant appealed the rejection to the Law Division, arguing that the prosecutor's decision was "the result of consideration of inappropriate factors; the product of a clear error in judgment; and/or a patent and gross abuse of discretion." On October 24, 2006, the prosecutor responded by a comprehensive letter brief that considered the seventeen statutory factors set forth in N.J.S.A. 2C:43-12e in light of the facts of the case and defendant's background.*fn3
In defendant's favor, the prosecutor noted that the offenses were minor, that neither victim objected to defendant's entrance into the program, that he had no prior criminal record, and that he had no involvement in any organized criminal activity.
However, the prosecutor also noted that several factors weighed against defendant's enrollment in PTI. For example, he noted 1) the significant damage caused to both vehicles; 2) that the victims and society "had a need and interest in curtailing  defendant's antisocial behavior"; and 3) that defendant ...