On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1894.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Alvarez.
Defendant Marc Gontarski appeals from an order dated February 16, 2007, denying his motion to be admitted into the pretrial intervention (PTI) program over the objection of the Monmouth County Prosecutor. We affirm.
A Monmouth County Grand Jury charged defendant with two counts of third-degree aggravated assault. The "offense circumstances" as set forth in the PTI investigator's report, were as follows:
On 6/11/2006, while on routine patrol, Det[.] Pringle observed a white male, later identified as Marc Gontarski, running down the road to flag a taxi. The report states that Mr. Gontarski was creating a hazard and as he was being written a summons he started creating a scene and was subsequently arrested for disorderly conduct.
At that time, Mr. Gontarski resisted arrest but Det. Pringle was assisted by Special Officer Belloni and Mr. Gontarski was handcuffed and transported to Belmar Police Headquarters. At headquarters Officer Lee explained to Mr. Gontarski that they would have to remove his necklace before putting him in a cell but as they approached, Mr. Gontarski put up his hand, causing Officer Lee to grab him and in return Mr. Gontarski grabbed onto Det. Pringle, causing Mr. Gontarski to fall onto Det. Pringle and take him to the ground. The report continues that the assisting Officers were unable to get Mr. Gontarski up off of Det. Pringle and therefore Officer Lee used pepper spray to separate the parties and subsequently Mr. Gontarski was placed in a cell.
The PTI investigator recommended defendant's application be granted on "condition that Mr. Gontarski submit to psychological and substance abuse evaluations," because defendant admitted "to smoking marijuana approximately three times per week." However, the Monmouth County Prosecutor's Office rejected defendant's PTI application, and it explained its reasons for the rejection in a three-page memorandum dated November 29, 2006.
Defendant's appeal from the prosecutor's decision, pursuant to Rule 3:28(h), was heard by the court on February 16, 2007. Defense counsel informed the court that defendant was scheduled to graduate from college in June "with a degree in psychology," and he argued defendant was "a perfect candidate" for the PTI program:
Quite frankly, when I looked at the police reports, there was no hospitalization, no mention of any physical injuries, nobody appeared to have any problems with equipment being torn or broken. It was merely a scuffle when the police officers wanted him to remove a religious article that he had around his neck. And quite frankly, if we look at that we can easily, I think, put this down to he was under the influence. And at that point in time I think this is a perfect candidate to go through PTI.
If you take this incident out, there's no other incident in there. He's motivated, he wants to be self[-]employed, he wants to better himself. And quite frankly, to derail him at this time I don't think is good for the system and is good for him. I think it's really a gross abuse when the Prosecutor's answer is well, we're rejecting him because he used marijuana. Well, the problem is he has a substance abuse problem. That's the problem.
In an oral decision on February 16, 2007, Judge Mellaci made detailed findings, and his reasons for denying defendant's motion included the following:
This [c]court will now review the Prosecutor's decision rejecting the defendant from PTI based on the new information regarding the New York dismissed charges as well as the statements originally noted in their original memo. The Prosecutor cited two factors in rejecting the defendant. These were the facts of the case and whether the crime was ...