On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-2138-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Carchman and Lihotz.
Defendant E.A. appeals from a Law Division order denying his motion to set aside the rejection of his application to be admitted into the Pretrial Intervention (PTI) program over the objection of the Hudson County Criminal Division Manager and County Prosecutor, and from the sentence imposed on his guilty plea conviction for fourth-degree failure to notify authorities of his relocation. N.J.S.A. 2C:7-2(d). Defendant was sentenced to a one-year term of non-custodial probation and requisite fines and penalties were imposed. Following our review, we conclude, under the circumstances of this case, the Prosecutor's rejection of defendant's application for PTI included irrelevant factors and failed to sufficiently demonstrate a careful consideration of the facts in light of the applicable law. State v. Wallace, 146 N.J. 576, 584 (1996); State v. Sutton, 80 N.J. 110, 117 (1979). Accordingly, we reverse and remand to the Law Division to allow the Prosecutor's Office to perform a measured review of the facts presented and reassess defendant's eligibility for PTI pursuant to the Guidelines set forth in Rule 3:28. State v. Bender, 80 N.J. 84, 94 (1979).
Prior to this offense, defendant's only encounter with the justice system occurred when he was a juvenile. The investigation report prepared in that adjudication states that on September 1, 1997, defendant's younger brother, H.A., "induced or compelled" a neighbor, age six, to commit an act of fellatio on defendant while he was taking a nap. State v. H.A., No. A-4039-05T2 (App. Div. December 4, 2006) (slip op. at 2). Defendant, then age fourteen, and H.A., who was eleven, were adjudicated delinquent for conduct, that if committed by an adult, constituted the offenses of sexual assault, N.J.S.A. 2C:14-2(a), and endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The court sentenced defendant to two years probation. As a consequence, he became subject to the lifetime registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -21. Specifically, defendant was required to register as a sex offender and notify police of any change of address. N.J.S.A. 2C:7-2(c), (d).
Defendant had no prior or subsequent juvenile or adult arrests, and there is no evidence he ignored his Megan's Law obligations until, at age twenty-three, he was indicted for the subject offense. On July 13, 2006, an investigator from the Jersey City Police Department attempted to hand-deliver a certification-of-service package to defendant at his last known address. Defendant was no longer residing in that apartment, and the investigator was told he had moved "several months" earlier. Telephone calls placed to the number defendant listed in an earlier registration went unanswered.
On July 20, 2006, defendant was arrested for his failure to notify the Jersey City Police of his change of address. He explained he left his apartment after being laid off from his job and was unable to pay his rent. He was temporarily staying in Newark, where he stated he had registered but did not inform Jersey City of the move. Defendant suggested he did not realize he had an obligation to notify Jersey City, as well as Newark. The record shows defendant returned to Jersey City on August 1, 2006 and registered, listing his prior Newark address. On August 14, 2006, defendant again presented himself to the Jersey City Police Department. On November 8, 2006, defendant was indicted for the subject offense.
Defendant applied for admission to the PTI program. On February 23, 2007, the Criminal Division Manager issued a written recommendation that he not be considered for enrollment. Thereafter, the Hudson County Prosecutor's Office rejected defendant's PTI application relying on statutory factors:*fn1 (1) the nature of the offense, N.J.S.A. 2C:43-12(e)(1); (2) the facts of the case, N.J.S.A. 2C:43-12(e)(2); (3) the motivation and age of the defendant, N.J.S.A. 2C:43-12(e)(3); (7) the needs and interests of the victim and society, N.J.S.A. 2C:43-12(e)(7); (14) whether the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12(e)(14); and (17) whether the harm done to society by abandoning criminal prosecution would outweigh the benefit to society from channeling an offender into a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17).
The State's justification for opposing defendant's candidacy for PTI was set forth in a memorandum issued by the Criminal Division Manager and in the State's brief submitted in opposition to defendant's application for judicial review. Describing the nature of the offense -- "a violation of [d]efendant's Megan's Law obligations" -- the State suggested defendant's single juvenile adjudication "should work against [him]" because of "the primary role that the [d]efendant played in the [s]exual [a]ssault[.]" As to factor two, the State argued "[t]here has been nothing provided . . . which mitigates the actions by the [d]efendant" as he had been registered for nine years, and was "aware of his responsibilities and [it was] his conscious decision to violate those responsibilities."
Despite acknowledging defendant was employed and had no substance abuse history, the State cited factor three, which examines defendant's age and motivation, and suggested defendant used "an alias, as evident from the juvenile adjudication," and was "a registered sex offender for life." The State argued defendant's statement that "he did not realize he had to tell Jersey City that he moved because he registered in Newark" was discredited because he knew of his registration obligations and was instead "hiding his address."
Inclusion of factor seven was based on "the need to protect society from Megan's Law offenders," and the assertion that the failure to maintain a registration was not a victimless crime, as "society was the victim of defendant's offense." Regarding factor fourteen, the State defended its right to prosecute Megan's Law offenders, stating "[a]ny violation that jeopardizes public safety should be deterred by criminal penalties." Further, the State maintains any benefit defendant would derive from PTI is exceeded by the State's interest in deterrence as "[v]iolating Megan's Law should be viewed as a breach of the public trust." Finally, factor seventeen, which assesses the harm to society, was included by the State because "abandoning this prosecution, which is a serious offense," "undermine[s] Megan's Law and send[s] a message to registrants that you can get a 'second bite [of] the apple' if you do not comply with your registration and notification obligations." The State asserts "it is clear what type of harm [would be] pose[d] to the community if this crime were not prosecuted" and that "society would not benefit from channeling this [d]efendant into another form of supervisory treatment."
Defendant sought review of the State's rejection. During a March 22, 2007 hearing held before the Law Division, defendant challenged what he characterized as the Prosecutor's Office's "struggle to create a PTI exception for Megan's Law offenders." This colloquy between the Prosecutor and the court followed:
THE COURT: Can you consider . . . any person charged with . . . this fourth degree offense who has no other criminal record and who has no adult record because it's a juvenile adjudication that underlies the need to register under Megan's Law[?] Can you conceive of any situation where someone would be permitted to have PTI?
[THE PROSECUTOR]: Judge, as a matter of fact I could, and I guess the first name that comes to mind is his brother.
THE COURT: Well, your office opposed that.
That was me and the Appellate Division that said his brother could have PTI.
[THE PROSECUTOR]: And I read that all and I think -- and I'm using that as an example. I think there's clearly a difference between that case which Your Honor decided and this case here on the basis of the nature of the underlying case and the role ...