On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-03-0779.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Grall and LeWinn.
Defendant Tarique Angelo Campbell was indicted by the Essex County Grand Jurors and charged with a single count of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39- 5b. Following the prosecutor's denial of his application for admission to the pretrial intervention program (PTI) and the trial court's rejection of his challenge to that decision, R. 3:28(h); N.J.S.A. 2C:43-12, defendant pled guilty to the charge. He was sentenced, in accordance with his plea agreement, to a two-year term of probation. Appropriate fines, penalties and assessments were imposed. As authorized by Rule 3:28(g), defendant appeals from the denial of his application for admission to PTI.
Defendant provided a factual basis for his guilty plea. On September 12, 2006, he was in a Jeep with three other people. He was in possession of a .40 caliber handgun but did not have the permit required by law. He admitted that the handgun was his and that the other people in the car did not have anything to do with the gun.
The police report provides additional detail. On the night of September 12, 2006, the Irvington Police Department had several calls reporting gun shots in the area of Columbia Avenue and University Place. Shortly before midnight, Officer Mildon and a state trooper with whom he was patrolling, were alerted that a suspect in a shooting was fleeing from that area in a silver-colored Buick. The officers saw and stopped the Buick. The driver of a Jeep behind the Buick accelerated and backed the car up. In the process, he crashed into another car. The officers approached the Jeep and told its four occupants to get out. As the rear-seat passenger on the driver's side of the vehicle complied, Mildon saw a semi-automatic handgun on the back seat.
Defendant was also seated in a rear seat of the Jeep. He was on the passenger side. According to Mildon's report, defendant was bleeding from the mouth, unable to speak and incoherent. Defendant's companions said he had been assaulted minutes before at the intersection of 18th and Columbia Avenues in Irvington.
Tanishea Bermudez, the sister of the Jeep's front seat passenger, arrived on the scene. She told the officers she had seen the shooting incident and that it "stemmed from the assault on" defendant.
The handgun recovered from the Jeep was loaded and operable. Nine .40 caliber casings, all fired from the same gun, were recovered from Columbia Avenue. No ballistics tests were done to confirm whether the casings were fired from the handgun defendant possessed.
On March 9, 2007, the Essex County Grand Jury charged defendant and the other three occupants of the Jeep with possession of a handgun. In July 2007, defendant filed an application for admission to PTI. On August 7, his admission was recommended by the program administrator, but on August 20, the assistant prosecutor informed defendant's attorney that the Essex County Prosecutor would not consent to defendant's enrollment in the program.
The assistant prosecutor provided a written explanation that had been approved by the executive assistant prosecutor. It describes the facts set forth in the police report and defendant's background. He was then twenty-one years old, unemployed, and single. He had a high school diploma, no dependents and no involvement in the juvenile justice system. His prior record included two prior arrests, in both instances the charges were dismissed. One arrest was on a charge for loitering in public on August 14, 2006, and the other on a charge of obstructing a public passage on January 6, 2007.
The assistant prosecutor provided the following reasons for denying defendant diversion to PTI.
It is appropriate for the Prosecutor to consider the nature of the offense and the facts of the case when evaluating an application for P.T.I. N.J.S.A. 2C:43-12e(1) and (2); Guideline 3(i) of R. 3:28. In this case, the defendant was found to be in possession of a gun immediately after his alleged participation in a shoot-out on Columbia Avenue in Irvington. The defendant's possession of a handgun under these circumstances clearly presents a threat of violence and injury to the community. Applicants who are charged with crimes committed with the deliberate threat ...