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State v. Zak

March 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BRIAN J. ZAK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 06-12-1855.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Skillman and Yannotti.

The State appeals from an order entered on July 31, 2007, which requires the admission of defendant Brian J. Zak to pretrial intervention (PTI). For the reasons that follow, we reverse.

Defendant was charged under Accusation No. 06-12-1855 with one count of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(7). On December 8, 2006, defendant entered a plea to that charge. The State agreed to seek probation, on condition that defendant serve 364 days in the county jail. Defendant reserved the right to argue for probation without any incarceration. Defendant stated that on December 21, 2005, he assaulted Matthew Mensching with his fists, causing him to sustain significant bodily injuries.

Defendant was scheduled to be sentenced on February 9, 2007. On that date, the judge stated on the record that she had reviewed the pre-sentence report and a sentencing memorandum from defense counsel. The judge also had reviewed various letters that had been submitted on defendanat's behalf. The judge later remarked that she had been "distressed and concerned" about sentencing defendant and suggested that defendant apply for admission to PTI. On April 4, 2007, the judge entered an order staying defendant's sentencing so that he could apply for admission to the Ocean County PTI program.

Defendant thereafter submitted an application for PTI. By letter dated June 18, 2007, Ocean County PTI Director Delores Fray and Probation Officer Bernadette Moynihan informed defendant that he would not be admitted to PTI. In their letter, Fray and Moynihan stated that defendant's application was denied based on certain statutory factors, specifically the nature of the offense, N.J.S.A. 2C:43-12e(1); the facts of the case, N.J.S.A. 2C:43-12e(2); the desire of the complainant or victim to forego prosecution, N.J.S.A. 2C:43-12e(4); and the needs and interests of the victim and society, N.J.S.A. 2C:43-12e(7).

Fray and Moynihan detailed the facts of the offense, drawn from the reports of the police investigation of the incident. On December 21, 2005, defendant had been at a party at the home of a friend. Mensching also was in attendance at the party.

Mensching entered the party at approximately 11:30 p.m. At some point thereafter, defendant told Mensching to leave. Mensching said that defendant was raising his voice and he told him to "chill out." Mensching said that he grabbed his jacket and turned to leave when defendant punched him in the face.

Mensching stated that he fell to the floor and while he was on the ground, defendant kicked him in the face four or five times. Mensching pulled on defendant's leg and brought him to the ground. Mensching said that, as he was being assaulted, Matthew Long, another attendee at the party, urged defendant to keep going.

Other persons at the party separated Mensching and defendant. Mensching said that he was bleeding from the face.

He called a friend and asked for a ride home. When he arrived at home, Mensching informed his parents of the assault and they took him to the hospital. He was treated for two fractures of the jaw.

The police also questioned Long about the incident. Long stated that he, Mensching and defendant were at the party. Long said that he asked Mensching to leave several times but he said that he was not ready to go. Long then asked defendant to ask Mensching to leave.

According to Long, Mensching made a remark about defendant's girlfriend, who previously had been Mensching's girlfriend. Defendant pushed Mensching and they started to fight. Long said that defendant punched Mensching in the face, causing him to fall to the floor. Long asserted that defendant stood over Mensching and punched him in the face with closed fists ten to fifteen times. Long grabbed defendant and took him outside "to cool off."

In their letter, Fray and Moynihan stated that defendant's "level of aggression went beyond the scope of PTI." They noted that defendant knocked his victim to the ground but he continued to strike the victim, "bringing the fight to a higher level of assault." They wrote that "this type of offense is generally not suitable for PTI." Fray and Moynihan stated that the harm to society from the abandonment ...


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