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State v. Copeland


March 3, 2009


On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-02-0074-A.

Per curiam.


Submitted January 22, 2009

Before Judges Stern and Kimmelman.

Defendant appeals from her termination from the Pretrial Intervention Program (PTI). She was enrolled as part of a plea agreement and was sentenced to probation after the termination. Defendant tested positive for cocaine on four occasions while in the program, in and before October 2006. Her PTI enrollment was nevertheless extended for a year at the January 9, 2007 termination hearing. At that hearing the judge concluded:

THE COURT: Well I'm going to let you continue on PTI. I'll give you one last chance. But I'm going to ask that as a condition of the PTI that you be -- once a month's not enough for you to be screened, but for Hunterdon Drug Awareness to -- you'd be involved in whatever the appropriate program is there as an outpatient and be tested regularly.

And I'm going to ask [Probation Officer] Stevens the next -- if there is another dirty drug test then you're going to be back and we know what that's going to be.

I mean you can avoid having a criminal record. You're right, you're old enough and should be wise enough at this time to have your priorities straight. But as Ms. Errickson said, it's not easy and as the saying goes, talking the talk is one thing, but remaining sober is quite another. And whether you can do it or not I'm not sure.

But I'll give you a chance with the understanding that you continue in Hunterdon Drug Awareness and as soon as we get any kind of positive drug test then you'll be back here real quick. You understand?

At a hearing on March 21, 2007 defendant was terminated from PTI as a result of another "positive drug screen."

According to the testimony of Probation Officer Brian Stevens, the test was taken on January 5, 2007, but he had not been informed of it before the January 9, 2007, hearing.

Defendant contested the finding. She testified that she did not use cocaine in January 2007, because she wanted to get back in the program. She was tested with negative results later in January and February 2007.

In terminating defendant on March 21, 2007, the judge stated the following:

So the record is clear, she has used on occasion, even by her own testimony, while she has been participating in the PTI program. That hearing, as I said, was conducted on January 9th, 2007. Mr. Stevens' testimony was shortly thereafter, I believe it was the next week, he heard from her counselor and that counselor advised that she had a positive drug screen on January 5th, 2007. Obviously just a few days prior to the hearing date, but the results had not been obtained until after the hearing date.

She was then discharged from Hunterdon Drug Awareness due to the positive drug screen and was then accepted at the Hunterdon Medical Center. There was a referral made to Hunterdon Medical Center. It's unclear to me as to what her status is in that program if indeed she's participating.

The drug results were set forth in an Exhibit S-2 which I will permit to be marked into evidence. This was the more sophisticated GC-MS testing that was positive for cocaine which the defendant indicates is her drug of choice.

Now hearsay is permitted in hearings such as this. The argument appears to be that while it is positive, she denies it, and there was no testimony presented at this hearing as to chain of custody or how the sample was handled at Hunterdon Drug Awareness.

Given the limited standard of proof required for the State here and given the fact that she has acknowledged to have used cocaine in the past, although that's not the specific charge here, in the past while she was on [PTI], given the test result which is a sophisticated form of testing and knowing well Hunterdon Drug Awareness being a -- a very experienced drug program, I am satisfied that there has been sufficient evidence that's been presented to terminate the defendant from participation in the pretrial intervention program.

We remand for further proceedings. The judge must expressly address the reasons supporting termination based on a drug test taken before he decided to give her another chance on January 9, 2007.

The termination was premised on a positive test on January 5, 2007, four days prior to the day of the first termination hearing when her PTI was continued for a year. Whether or not defendant should have been continued in the program in January for the additional year, she did nothing wrong in the period after the extension was ordered. Cf. State v. Reyes, 207 N.J. Super. 126, 137 (App. Div.), certif. denied, 103 N.J. 499 (1986) (probation revocation).

In his testimony Officer Stevens stated defendant testified at the first hearing that "the last time she had used cocaine" was in October, 2006. In his opinion the judge referred to the fact that on January 9, 2007, "defendant was placed under oath and questioned by the Court and as part of her testimony she indicated that she had last used cocaine on October 2006."

Although defendant admitted in March that she so testified "under oath," on January 9th,*fn1 we do not see that she was placed under oath at that hearing. It may well be that perjury would make defendant a poor risk for rehabilitation, see United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed. 2d 582 (1978), and we do not preclude termination of PTI on that basis.

However, the judge must provide adequate reasons to terminate defendant other than for abusing drugs before he gave her another chance to remain in the program.

Reversed and remanded for further proceedings consistent with this opinion.

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