On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-06-0455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2010
Before Judges Parrillo and Lihotz.
Defendant Salik Height appeals from an order of the Law Division denying his motion to be admitted into the Pretrial Intervention (PTI) program over the objection of the PTI Director and County Prosecutor, and from the sentence imposed on his guilty plea conviction of third-degree possession of crack cocaine. We affirm.
The relevant facts are as follows. On May 3, 2007, the vehicle that the twenty-four year old defendant was operating, and in which a juvenile was a passenger, was stopped by a Franklin Township police officer, who noticed in plain view a plastic bag of suspected crack cocaine lying on the vehicle's floor between the passenger seat and door. After the occupants were removed, the vehicle was searched and three more bags of suspected crack cocaine were discovered. All four bags later tested positive for cocaine.
Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and the disorderly person's offense of possession of narcotic paraphernalia, N.J.S.A. 2C:36-2.*fn1 On June 6, 2007, defendant applied for admission into Somerset County's PTI program. In rejecting defendant's application under Rule 3:28, the PTI Director referred to two of the statutory considerations, N.J.S.A. 2C:43-12e(8); N.J.S.A. 2C:43-12e(9), noting that "[t]he crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." In particular, the PTI Director found that as a juvenile, on November 17, 2000, defendant was adjudicated delinquent for two counts of burglary and theft each, and one count of criminal mischief. He was placed on probation for one year, which he violated on July 13, 2001, when defendant was adjudicated delinquent for resisting arrest and aggravated assault. He was again placed on probation and on December 21, 2001, defendant was adjudicated delinquent a final time for a second probation violation. He received yet another probationary term. As an adult, defendant was convicted of two disorderly person's offenses, and a violation of a municipal ordinance. The County Prosecutor concurred with the PTI Director's recommendation.
The same day his PTI application was rejected, defendant was indicted for third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Defendant then appealed his PTI rejection to the Law Division. In denying the appeal, the judge concluded:
Under the circumstances of this case, the public benefits from general and specific deterrence outweigh the Defendant's personal desire to P.T.I. Therefore, the P.T.I. Director and Prosecutor's rejection on that basis cannot be said to be a patent and gross abuse of discretion.
Thereafter, defendant agreed to plead guilty to the indictment, reserving his right to appeal the denial of admission to PTI, while the State agreed to dismiss the disorderly person's offense, and recommend a probationary sentence. On February 8, 2008, defendant was sentenced to three years probation and ordered to perform fifty hours of community service, undergo alcohol and/or drug abuse evaluation, and obtain treatment if found necessary. Defendant's driver's license was suspended for six months, and appropriate fees and penalties were also imposed.
On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED MR. HEIGHT'S PTI APPEAL BECAUSE THE PROSECUTOR'S REJECTION OF MR. HEIGHT'S APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.
II. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
We have considered these arguments in light of the record and the applicable legal precedents and have ...