On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-0396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
Defendant Anthony T. Ray was arrested by the Plainfield police and charged with third-degree unlawful possession of a firearm, specifically a BB gun. Although the Director of the Union County Pre-trial Intervention Program (PTI) recommended his admission to the program, the Union County Prosecutor's Office rejected his application.*fn1 Defendant pled guilty to a single-count accusation charging him with a violation of N.J.S.A. 2C:39-5(b).
Before sentencing, however, defendant moved to vacate his guilty plea, and also appealed the denial of his admission into PTI. The State did not object to defendant's motion to withdraw his guilty plea, noting that it intended to present the case to a grand jury. Before defendant's motions were heard, the matter was in fact presented to the Union County grand jury that returned a three-count indictment charging defendant with third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); third-degree possession of imitation CDS with intent to distribute, N.J.S.A. 2C:35-11(a)(3); and second-degree possession of a firearm in the course of committing a CDS offense, N.J.S.A. 2C:39-4.1(a). Defendant moved to dismiss the indictment.
At oral argument before Judge Stuart L. Peim, defendant argued, among other things, that the State's proofs before the grand jury regarding the imitation CDS charge were insufficient to establish a prima facie case. The judge rejected this argument, finding the testimony before the grand jury to be adequate. Noting that the State consented to the withdrawal of defendant's guilty plea to the accusation, Judge Peim posed the following question to defense counsel: "[D]o you want the plea to remain in effect and go ahead with the sentencing  or do you want to withdraw the plea and let . . . the other charges play out?" Defense counsel responded,
I don't think we have any choice. I think that under the circumstances of the Court's ruling that it doesn't make sense to withdraw the plea because the reality of it is  that . . . in all likelihood  a [conviction of] possession of a weapon third-degree would be the result of a jury trial in this matter.
Defendant then formally withdrew his motion to withdraw his guilty plea.
Judge Peim denied defendant's appeal from the prosecutor's rejection of his PTI application, noting sufficient evidence of "a second-degree crime." See R. 3:28, Guideline 3(i) ("A defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor."). Thereafter, the prosecutor dismissed the indictment. Defendant was subsequently sentenced to three years probation, and the appropriate financial penalties were assessed.
On appeal before us, defendant raises the following point:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT WHERE THE STATE FAILED TO PRESENT TO THE GRAND JURY SUFFICIENT EVIDENCE TO SUPPORT ITS CLAIM THAT DEFENDANT POSSESSED IMITATION ...