On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-02-0074-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...