On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-01555.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Reisner and Chambers.
Defendant appeals from the denial of his motion to be admitted into the Pretrial Intervention Program (PTI), governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey. A prosecutor's decision not to admit a defendant into PTI will only be overturned where the court finds a "patent and gross abuse of discretion." State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). We do not find that such an abuse of discretion has occurred in this case and affirm.
Defendant was indicted for five counts of shoplifting, N.J.S.A. 2C:20-11(b) (third-degree), and, in a superseding indictment, he was also charged with using a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9(a) (second-degree). The State contended that defendant had taken merchandise totaling $7,765.54 from Home Depot during the period from July 27, 2006 to August 6, 2006, and that a juvenile cashier at Home Depot assisted him in the shoplifting.
Defendant applied for PTI. He was thirty-seven years old at the time and the owner of two restaurants and four homes, three of which were being remodeled for resale. He had no prior juvenile or criminal record.
The director of PTI did not recommend defendant's admission into PTI, citing the repetitive pattern of wrongful conduct that was motivated by personal gain, noting that when defendant was arrested, he had $16,540 on his person. The prosecutor refused to consent to defendant's admission into PTI, finding that the factors relied upon by the director in denying admission outweighed any other factors. Pursuant to Rule 3:28(h), defendant moved for an order overturning the prosecutor's decision and admitting defendant into PTI. The motion was denied by the trial court.
Pursuant to a plea agreement, defendant then pled guilty to fourth-degree theft of mislaid property,*fn1 and the remaining counts were dismissed. He received a suspended sentence of three years with the condition that he maintain employment and pay restitution in the sum of $5,594 and the requisite fines and penalties.
Defendant has brought this appeal, contending that the trial court erred in declining to find that the prosecutor patently and grossly abused his discretion in objecting to defendant's admission into PTI. See R. 3:28(g) (providing that "[d]enial of acceptance [into PTI] may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty").
PTI is a diversionary program permitting those charged with criminal conduct "to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). It is designed "to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system. Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality." State v. Watkins, supra, 193 N.J. at 513.
The statute, N.J.S.A. 2C:43-12(e), sets forth the following seventeen criteria that prosecutors and program directors must consider when determining ...