On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0287.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Baxter.
Defendant Alfred Carrino, Jr., appeals from an April 13, 2006 order that denied his appeal of the prosecutor's rejection of his application for Pretrial Intervention (PTI) and from an October 6, 2006 order that denied his motion to withdraw his guilty plea. After denying the latter motion, the judge sentenced defendant to a three-year term of probation on the charge to which defendant had pled guilty, conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). We affirm.
On September 24, 2004, defendant was stopped by a Wall Township police officer due to an expired inspection sticker on his vehicle. A license check revealed that defendant's driver's license was suspended and there were active warrants out for his arrest. The officer took defendant into custody on the outstanding warrants and conducted a search incident to that arrest. One bag of heroin was recovered during that search.
Defendant applied for admission to the PTI program. On June 13, 2005, a PTI investigator recommended that his application be denied. A month later, on July 7, 2005, the Monmouth County Prosecutor's Office rejected defendant's PTI application. The State based its rejection on a single statutory factor, N.J.S.A. 2C:43-12(e)(3), the motivation of defendant. The assistant prosecutor provided the following justification for that conclusion:
The defendant failed to appear for his scheduled appointments despite the attempts by the PTI investigator to contact him. As a result, the PTI investigator has recommended that defendant not be accepted into the program and I agree. The defendant has shown that he lacks the necessary motivation to participate in the PTI program by failing to appear for the initial interview. Additionally, the defendant has failed to be deterred from committing further criminal activity by his various arrests and convictions as an adult. The PTI investigator also indicates that the defendant has spent 25 days in the County Jail. This jail time was insufficient to deter further criminal activity. Also, the defendant has demonstrated a lack of respect for court orders. He has continued to drive while his license was suspended. He also is in arrears in his child support.
For all of these reasons, the defendant has demonstrated that he is not a suitable candidate for the PTI program and he is rejected.
Defendant appealed the prosecutor's denial of his PTI application. His principal argument in the Law Division was the prosecutor's refusal to give proper consideration to a medical condition that excused his failure to appear for his PTI interview. In particular, defendant argued that a skull fracture on December 31, 2004, resulted in surgery and an ensuing five-day hospitalization. He argued that "since then, he's had serious problems . . . being homeless, [and has] also had difficulty with memory . . . ." He asserted that the medical records entitled him to reversal of the PTI rejection.
During argument of the PTI appeal, the prosecutor explained that she had reviewed all of the medical records that defendant provided and nothing in those records caused her to reconsider the State's conclusion that defendant was not a suitable candidate for PTI. She again relied both on defendant's lack of motivation and on his repeated failure to comply with court orders. She asserted that the latter was evidenced by defendant's driving record that included forty-seven driver's license suspensions and twenty-five traffic court convictions.
In a comprehensive and well-reasoned oral opinion, Judge Mellaci upheld the prosecutor's denial of defendant's PTI application. The judge reasoned:
[D]efendant states that he did not attend his PTI interview because of injuries which he sustained in January 2005 and [because of a] lack of stable residence. Defendant contends that because the PTI investigator and prosecutor were not aware of his medical conditions and work problems, it was impossible for ...