On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-06-0258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Yannotti.
Defendant Angelo R. Rodriguez, Jr. appeals from an order entered on October 22, 2007, terminating his participation in the Pretrial Intervention Program (PTI), and the judgment of conviction dated January 18, 2008. We affirm the order terminating defendant's participation in PTI but reverse the judgment of conviction, and remand the matter to the trial court to permit defendant to withdraw his plea.
The following procedural history and facts are pertinent to our decision. Defendant was charged under Indictment No. 06-06-258 with possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:2-6(c) and N.J.S.A. 2C:35-5(b)(11) (count one); possession of CDS, N.J.S.A. 2C:35-10(a)(3) and N.J.S.A. 2C:2-6(c) (count two); obstructing the administration of the law, N.J.S.A. 2C:29-1 (count three); and resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four). Defendant was also separately charged with possession of drug paraphernalia, N.J.S.A. 2C:36-2; and resisting arrest, N.J.S.A. 2C:29-2(a).
On November 2, 2006, defendant pled guilty to count one in Indictment No. 06-06-258, "[i]n exchange" for the prosecutor's agreement to allow defendant to apply for admission to PTI and the dismissal of the other charges. At the plea hearing, the assistant prosecutor stated that the PTI program would be: for a term of one year with [fifty] hours of community service, drug testing every week for the first two months. If all negative then every two weeks after that. If the defendant is terminated from PTI he will be sentenced to three years of probation, non-custodial. Judge, just on that issue of the drug testing. The drug testing will occur through PTI but that will be random. What the defendant will be required to do is obtain the outside services . . . through . . . [Somerset County's probation department]. But he'll have to get independent drug testing from whichever agency is going to be approved by PTI. . . . In addition there is no loss of license with PTI if the defendant completes it. And the municipal charges or the motor vehicle violations will be remanded to Municipal Court. So that is my understanding of the plea agreement in its entirety.
The plea form stated, among other things, that if defendant were terminated from PTI, he would be sentenced to three years of probation.
On May 18, 2007, the trial court considered defendant's application for admission to the PTI program. The court questioned defendant concerning the program:
Q: Mr. Rodriguez, you have been recommended for participation in the pretrial intervention program and if you successfully complete the program the charge or charges will be dismissed. Do you understand that?
Q: But to accomplish that you will have to comply with all the various program conditions. I assume that those conditions have been reviewed with you, is that correct?
Q: And any questions at ...