On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-03-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Wefing and LeWinn.
On March 28, 2007, defendant Arthur Elliott, who had just turned the age of eighteen, was indicted by the Somerset County Grand Jury for fourth-degree credit card theft. Defendant applied to the Office of the Somerset County Prosecutor for admission to the Pretrial Intervention Program (PTI), which was denied. Defendant appealed that decision to the Law Division. Following a hearing, Judge Paul W. Armstrong entered an order denying defendant's appeal.
Defendant thereafter pled guilty to the indictment; he was sentenced to a three-year term of probation, with the condition that he perform fifty hours of community service. Statutory fines and penalties were also assessed. A pending disorderly persons charge of possession of marijuana was dismissed at sentencing.*fn1
Defendant appeals from the denial of his PTI application; he also contends that the imposition of a $500 fine and fifty hours of community service was "manifestly excessive." We affirm.
In denying defendant's PTI application, the Prosecutor stated:
On 12/02/04 you were placed on juvenile probation for a period of one year for Unlawful Possession of a Weapon. On 4/08/05 your probation was terminated and you were sentenced to one year at Jamesburg. . . .
[R]ecords indicate you were paroled on 8/07/06 and discharged from parole on 4/07/07. The present offense occurred while you were still on parole. Therefore, the interest of society would best be served through prosecution in the traditional manner rather than by diversion into the Pretrial Intervention program.
On appeal to the Law Division, defendant "note[d his] difficult background[,]" that he "grew up without a mother. He was raised by an elderly grandmother."
In his decision, Judge Armstrong found that on the date of the offense, defendant was a passenger in a motor vehicle that was stopped by the police for an expired inspection sticker. The police officer noticed "a heavy smoke condition in the passenger compartment[,]" and when the driver opened the door "the officer smelled a strong odor of burnt marijuana emanating from within the vehicle." Defendant admitted to the officer that he had "smoked a blunt and thrown it out the window after seeing the police." A partially burnt marijuana cigarette was, in fact, discovered on the ground below the passenger window of the vehicle.
When the officer asked defendant to exit the vehicle, he observed two American Express credit cards and a digital New Jersey driver's license on the seat, as well as additional marijuana on the floor. It was ascertained that the credit cards and license belonged to a Delores Lacona who, when contacted by the police, "indicated that she last observed her credit cards and license at the Stop & Shop on Easton Avenue in Somerset a day earlier while shopping at that store." Defendant admitted that he worked at that Stop & Shop but stated that he had "no idea how the credit cards and license ended up under his seat in the automobile."
Later, at police headquarters, defendant admitted that he found the credit cards while at work and that he "did not immediately turn the cards in at the front desk . . . ." Defendant further admitted that he attempted to use the credit ...