On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 05-02-0102 and 05-02-0104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lisa.
After the court denied defendant's appeal of the prosecutor's rejection of her application for admission into the Pre-Trial Intervention (PTI) program, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10d. Defendant was sentenced to three years probation, conditioned upon obtaining drug treatment and payment of $370 restitution to the owner of the vehicle that was unlawfully taken. Mandatory monetary assessments and loss of driving privileges were also imposed.
Defendant now appeals from the order denying her admission into PTI. In particular, she argues:
THE PROSECUTOR COMMITTED A CLEAR ERROR OF JUDGMENT IN HER APPLICATION OF THE PRETRIAL INTERVENTION GUIDELINES TO THE FACTS OF THE CASE, SO CLEARLY UNREASONABLE AS TO SHOCK THE JUDICIAL CONSCIENCE. THE PROSECUTOR MISAPPLIED GUIDELINE FACTOR (3)(I), FINDING HAUPT'S TWO INDICTMENTS, THREE DAYS APART, TO CONSTITUTE PROOF OF GUIDELINE (3(I), A "CONTINUING PATTERN OF ANTI-SOCIAL BEHAVIOR," I.E. "PART OF A CONTINUING CRIMINAL BUSINESS OR ENTERPRISE." (A GUIDELINE FACTOR FOR REJECTION OF PTI). MISAPPLICATION OF A PRETRIAL INTERVENTION GUIDELINE 'FACTOR' IS A QUESTION OF LAW, A MATTER ON WHICH THE APPELLATE COURT MAY SUPPLANT THE PROSECUTOR[']S DECISION.
Our review of the record leads us to conclude that, in rejecting defendant's PTI application, the prosecutor failed to consider a number of relevant factors, as a result of which we remand to the prosecutor for reconsideration.
On December 31, 2004, the twenty-two-year-old defendant was living with her twenty-year-old sister, Crystal Haupt. The sisters were heroin users, and were found by the police to possess in their apartment on that day hypodermic syringes they used to inject the heroin, and defendant had on her person twenty bags of heroin. There is no dispute that the heroin was intended only for personal use. Defendant was charged with possession of a CDS and released on her own recognizance.
On January 4, 2005, Crystal Haupt took the car of a neighbor with whom the sisters were acquainted without the owner's permission. She took it for the purpose of driving to a location where she could purchase more heroin. At some point during the interlude, defendant entered the car as a passenger. Defendant acknowledged she was aware that her sister did not have permission to use the car. Although the record is unclear, apparently the sisters left the car in a shopping center parking lot. The victim impact statement by the car's owner includes a bill for towing and storage charges and checking some mechanical aspect of the car, without finding any problem. Those charges provided the basis for the restitution order. Defendant was charged with subsection d of N.J.S.A. 2C:20-10 (commonly referred to as "joyriding"), as a passenger, and Crystal was charged with violating subsection b as the driver.
According to the presentence report, defendant had no prior history of juvenile or adult arrests. She was a high school graduate and had attended Rutgers University for three years.
By the time the presentence report was prepared, defendant had participated extensively in drug rehabilitation programs, apparently with success, and she was gainfully employed. Defendant has never been married. She has no children. At the time of sentencing, she was residing in California, where she was born and had lived before moving to New Jersey as a child. Defendant's parents are divorced. The presentence report states that "DEFENDANT SEEMS TO RECEIVE ALOT OF SUPPORT FROM HER FATHER AS SHE GOES THROUGH RECOVERY."
Defendant applied for admission to PTI. The program director approved her application. However, the prosecutor rejected it, expressing the following as the sole basis:
Defendant is indicted for two separate crimes on two separate occasions. Therefore, neither represents an isolated event. Defendant's commission of two crimes relatively close in time represents an emerging pattern of anti-social behavior ...