On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-0967.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fasciale.
Defendant Terrell M. Lucas pled guilty to third degree attempted theft from the person. The judge imposed a three-year probationary term in accordance with the plea agreement. The central issue in this appeal is whether defendant has the right to apply to the Pretrial Intervention Program (PTI), not whether he would have been admitted to PTI. We conclude that defendant was mistakenly deprived of the opportunity to apply for PTI. We reverse and remand to allow defendant to do so. Accordingly, we do not reach defendant's substantive arguments that the factual basis was inadequate and the sentence was excessive.
Defendant and co-defendant Tyshawn Jackson were indicted and charged with second degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:5-2 (Count One). A juvenile co-defendant was charged in Family Court.
At arraignment, the assistant prosecutor informed defendant he could apply to PTI but he would probably be ineligible because he previously had a conditional discharge. At that time, the judge, assistant prosecutor and defense counsel believed that defendant had previously received a conditional discharge. The following exchange occurred at arraignment:
[DEFENSE COUNSEL]: Will you permit the application?
[ASSISTANT PROSECUTOR]: Yes, he can apply, but --
[DEFENSE COUNSEL]: Okay. I'd like to have that done today.
THE COURT: He's had a conditional discharge.
TEAM LEADER: . . . [O]n our list it says he's ineligible. . . .
TEAM LEADER: They indicated on our list he's ineligible to apply.
[DEFENSE COUNSEL]: . . . If that's the case, then he can't apply, previous ...