On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Stern and Lyons.
Defendant Shawn Milligan appeals from an order denying his motion to compel his admission into a pre-trial intervention program (PTI). The relevant facts and procedural history are as follows.
On September 12, 2006, at approximately 7:00 p.m., defendant was present at the home of his ex-girlfriend in Jersey City. At that time, the defendant was employed as a juvenile detention officer by the Hudson County Department of Corrections. He was twenty-eight years old, had no prior criminal record, and stood 6 feet, 2 inches tall, weighing 275 pounds. He had been living at the Jersey City home of his ex-girlfriend, together with their son, for approximately six or seven months prior to September 12, 2006. Approximately one week prior, defendant had left the home as a result of the parties' nine-year relationship ending.
Defendant had earlier spoken to his ex-girlfriend about bringing over some clothes for their son as well as some food. When defendant arrived at the ex-girlfriend's home, they stood on her porch and spoke. An argument ensued. The ex-girlfriend slammed the door on defendant, bringing the conversation to a close. Defendant, however, proceeded to break the front right window on the porch and forcibly entered the home. The ex-girlfriend picked up a knife and cut the defendant on his thumb. Defendant began to hit the victim's face and body with his hands and fists as well as kick her. In doing so, defendant broke furniture and left the apartment in disarray. Defendant, at some point, stopped himself and left the home. The police were called. They took the ex-girlfriend, cut and bruised, to the hospital. Defendant was later arrested.
On December 14, 2006, defendant was indicted by a Hudson County Grand Jury and charged with burglary (Count One) pursuant to N.J.S.A. 2C:18-2 and criminal mischief (Count Two) pursuant to N.J.S.A. 2C:17-3a(1).
On January 5, 2007, defendant enrolled in an anger management program. He attended four sessions before he was forced to terminate his attendance due to his inability to pay for the sessions. On March 1, 2007, the Criminal Division Manager approved defendant's application to enter a PTI program. The recommendation stated that PTI is appropriate "based on the defendant's first offender status, his conduct was the result of circumstances unlikely to reoccur as the defendant has recognized the need to seek help with controlling his anger."
On March 8, 2007, the prosecutor advised defendant's counsel that he was refusing to consent to defendant's admission to PTI due to "(1) the nature of the offense; (2) violent nature of the offense; [and] (3) benefit of diversion to this defendant is outweighed by the need of society to prosecute crimes involving domestic violence." On April 26, 2007, the prosecutor filed a supplemental letter stating his reasons for his refusal to consent to the admission of defendant into PTI. The prosecutor stated that the nature of the offense was a residential burglary. He noted that the "entry of a dwelling to commit an offense should not be minimized or excused." In addition, the prosecutor pointed out that the offense committed after entry was an assault, a violent offense. Lastly, the prosecutor concluded that the assault was committed "in the context of a domestic dispute" and, therefore, the "needs of society to prosecute this defendant outweigh the benefits of diversion to this defendant".
On June 5, 2007, the trial court entertained defendant's motion to compel admission to PTI. The trial court, after hearing the arguments of counsel, denied defendant's appeal. The court found that the prosecutor had not established a per se exclusion from PTI of domestic violence offenders. The court observed that the prosecutor addressed several issues in coming to his decision, such as the nature of the offense, the facts of the case, as well as the needs and interests of the victim and society. The trial court found that the prosecutor did not exhibit a "gross disregard of the rules and regulations."
On June 12, 2007, defendant entered a plea of guilty to Count Two of the Indictment charging fourth-degree criminal mischief. The prosecutor agreed to a recommendation of non-custodial probation and that the State would dismiss Count One of the Indictment charging third-degree burglary as well as the dismissal of the disorderly person's offense of assault.
On June 19, 2007, the trial judge sentenced defendant in accordance with the negotiated plea agreement to two years' probation, together with the appropriate ...