On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-11-776.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Grall.
Following the trial judge's rejection of the defendant's challenge to the prosecutor's denial of admission to the Pretrial Intervention Program (PTI), defendant Anthony W. Hobor, III, pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1). In accordance with a plea agreement, a separate complaint charging defendant with possession of marijuana and drug paraphernalia, N.J.S.A. 2C:35-10a(4) and N.J.S.A. 2C:36-2, was dismissed and defendant was sentenced to a three-year term of probation, fifty hours of community service and a suspended ninety-day term of imprisonment in county jail. Appropriate fines, assessments, fees and penalties were also imposed. As authorized by Rule 3:28(g), defendant now challenges the trial judge's denial of his appeal from the prosecutor's decision on PTI.
On September 10, 2007, Officer Frederick Fittin of the South Bound Brook Police Department investigated a complaint about conduct on a street corner. As Fittin approached a group gathered there, he detected the odor of burnt marijuana. In response to Fittin's inquiry about marijuana, defendant handed the officer a cigarette pack that contained that drug and a smaller bag of cocaine. When questioned about the cocaine, defendant told Fittin he forgot he had it. Defendant was arrested and released on his own recognizance.
On September 15, Officer Fittin stopped a speeding car. Defendant was driving. As Fittin approached the vehicle, he smelled marijuana. Defendant explained that he had not yet had a chance to remove the drugs from his car after his arrest. He consented to a search of his vehicle, and Fittin found three burnt marijuana cigarettes, three plastic bags of cocaine and two that held marijuana and rolling papers.
On November 8, 2007, defendant was indicted and charged with third-degree possession of a controlled dangerous substance. On November 19, he applied for admission to PTI.
Defendant had no prior criminal convictions. In December 1999, when he was sixteen years of age, defendant was adjudicated delinquent. He was subsequently convicted of violating a local ordinance prohibiting presence in a public park after hours. Defendant had attended college and for eight months had been employed in his father's construction business. Letters submitted on defendant's behalf included references to his good character, acts of kindness and his ability to pass drug tests administered by his employer.
On November 30, 2007, the PTI Director denied defendant's application. The notice of rejection prepared by the Director indicated the following reasons for denial:
Your prior record indicates you had been sentenced to a period of probation supervision which would preclude admission to the PTI Program and illustrates rehabilitation was not achieved. Criminal records indicate on 9/01/1999 you were arrested in North Brunswick, NJ . . . . On 12/13/1999 you were adjudicated delinquent . . . and placed on probation for one year and assessed $45.00.
We have taken into consideration your background and the circumstances provided by you pursuant to [N.J.S.A.] 2C:43-12 et seq. in reaching this decision.
For the reasons stated by the PTI Director and without further elaboration, the prosecutor agreed that the Director's rejection was appropriate.
As authorized by N.J.S.A. 2C:43-12f and Rule 3:28(h), defendant filed a challenge to the denial of his application for PTI in the Law Division. Relying on State v. Wallace, 146 N.J. 576, 584 (1996) and State v. Nwobu, 139 N.J. 236, 249 (1995), defendant contended that the prosecutor's statement of reasons was inadequate and demonstrated the prosecutor's failure to consider the nature and circumstances of his non-violent crime and the positive aspects of his character evidenced by his interactions with Officer Fittin ...