On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-0002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 10, 2010
Before Judges Lihotz and Baxter.
Defendant Hashim S. Watts appeals from his January 12, 2009 conviction, following a negotiated plea of guilty, on a charge of third-degree possession of a controlled dangerous substance (CDS). In particular, he challenges the judge's refusal to overturn the prosecutor's denial of his application for participation in the pretrial intervention program (PTI). He frames his arguments on appeal as follows:
I. DENIAL OF DEFENDANT'S PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION AND A CLEAR ERROR OF JUDGMENT, AND THIS COURT SHOULD DIRECT DEFENDANT'S IMMEDIATE ADMISSION INTO PTI.
II. EVEN IF THIS COURT FINDS THAT DENIAL OF DEFENDANT'S PTI APPLICATION DID NOT RISE TO THE LEVEL OF A "PATENT AND GROSS ABUSE OF DISCRETION," THE ERRORS REQUIRE REMAND OF DEFENDANT'S PTI APPLICATION TO THE PROSECUTOR FOR RECONSIDERATION BASED ON FULL CONSIDERATION OF ALL RELEVANT AND APPROPRIATE FACTORS.
We reject these arguments and affirm defendant's conviction.
On December 6, 2008, defendant was a passenger in a vehicle that was stopped by State Police in Somerville for a motor vehicle violation. A background check of defendant revealed an outstanding fugitive warrant from Pennsylvania based upon his failure to appear in court to face a charge of burglary, receiving stolen property, criminal trespass and theft. Although the crimes in question occurred on July 27, 2007, defendant was not arrested at that time. The complaint that was subsequently filed against defendant in Pennsylvania was mailed to an address at which he was no longer residing. For that reason, defendant was apparently not aware of the Pennsylvania charge. Nor did he know that he was due in court and that his failure to appear had resulted in a Pennsylvania warrant for his arrest. Once the State Trooper became aware of the Pennsylvania fugitive warrant, he arrested defendant, conducted a search incident to the arrest and found cocaine on defendant's person. He arrested defendant for possession of CDS. Defendant was ultimately indicted on that charge.
On December 24, 2007, defendant filed an application for admission to the PTI program. His application demonstrated that other than the pending burglary and theft charge in Pennsylvania, defendant had never been arrested. Thus, he had no felony convictions, no municipal court convictions, no juvenile adjudications of delinquency and had never received a conditional discharge or PTI dismissal.
On January 29, 2008, the Criminal Division Manager rejected defendant's application to PTI for two reasons: 1) the charge on which defendant sought admission into PTI was "part of a continuing pattern of anti-social behavior," citing N.J.S.A. 2C:43-12(e)(8) and (9); and 2) "[i]n addition to the instant offense, defendant has been charged with being a Fugitive from the Commonwealth of Pennsylvania [on] two counts of burglary, two counts of criminal trespass, two counts of theft by unlawful taking and two counts of receiving stolen property relating to an offense which took place on 7/27/07." The prosecutor likewise rejected defendant's PTI application, relying on the same factors that the Criminal Division Manager had cited.
Eleven months after the prosecutor rejected his PTI application, defendant appealed that denial to the Law Division, which agreed to hear the appeal even though it was "grossly outof-time." In a written decision issued on January 12, 2009, following oral argument on the PTI appeal, the judge upheld the prosecutor's denial of PTI. The judge began by observing that a "'trial [court] does not have the authority in PTI matters to substitute [its] discretion for that of the prosecutor.'" (quoting State v. Von Smith, 177 N.J. Super. 203, 208 (App. Div. 1980). The judge concluded that a prosecutor is entitled to rely upon a pending charge as a basis for denying a PTI application and that the prosecutor's refusal to admit defendant to PTI was not an abuse of discretion.
In so concluding, the judge distinguished the published opinions that have curtailed a prosecutor's ability to rely upon dismissed charges as a basis for denying PTI and reasoned that there is a significant difference between a dismissed charge and a pending charge. The judge also rejected defendant's contention that the Criminal Division ...