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November 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-09-1239.

Per curiam.



Submitted October 19, 2010

Before Judges Graves and Messano.

Defendant Elias Benitez appeals from the September 1, 2009 order affirming the Passaic County prosecutor's rejection of his application for admission to the Pretrial Intervention Program (PTI), and the order of October 14, 2009, denying his motion for reconsideration.*fn1 We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

Defendant was indicted by the Passaic County grand jury and charged with two counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In Count One, defendant was alleged to have acted while he "had supervisory or disciplinary power . . . over J.R.," the alleged victim. See N.J.S.A. 2C:14-2c(3)(b). In Count Two, defendant was alleged to have used "physical force or coercion." See N.J.S.A. 2C:14-2(c)(1). At the time of the incident, defendant was not quite 42 years of age; J.R. was 17.

The State alleged that on the night of May 9, 2008, J.R. attended an event at her church. Defendant was the husband of the Church's pastor. After the event ended, defendant offered to drive J.R. and the other children in attendance to their homes. After dropping off everyone else, defendant and J.R. were alone in the car. Instead of taking J.R. immediately home, defendant drove in a direction away from J.R.'s house and eventually stopped on a dead-end street. He began to rub the inside of J.R.'s thighs, kissed and bit her neck, put his hands under her shirt and rubbed her breasts. At first, J.R. was so frightened that she could not speak, however, she eventually told defendant to stop and drive her home. He did, but warned J.R. not to tell anyone about what had happened.

In her home, J.R. told her brother, who in turn informed their father. The next day, J.R.'s father contacted the pastor and asked to see her and defendant at his home. They arrived, and, in front of J.R. and others assembled, defendant admitted that he had touched the girl in an inappropriate manner. Two days later, J.R. told the police of the incident and defendant was arrested.

Defendant applied for admission to PTI. As part of that process, the probation department interviewed J.R., who recounted the details of the crime and told the officer that she was "very scared" while the offense was being committed, but that she "was more hurt by the fact that she considered [defendant] to be like a second father." J.R. was undergoing counseling and having difficulty "feeling comfortable" in the new church she was attending. She expressed her opposition to defendant's admission into PTI.

Defendant initially refused to be interviewed by the probation officer, citing his attorney's directive not to speak to anyone about the crime. Although defense counsel called probation and, citing a misunderstanding, asked that defendant be re-interviewed, probation chose not to do so. Defendant had no prior juvenile or adult arrests, was employed as a maintenance worker, and resided with his wife, his son by a prior relationship and his stepdaughter. After consideration of these factors, and the likelihood that "through clinical counseling . . . defendant w[ould] come to recognize his role and responsibility in the commission of the . . . offense," the program director recommended defendant's enrollment in PTI.

The prosecutor, however, objected. On April 2, 2009, he forwarded a statement of his reasons, which were threefold. First, the prosecutor concluded the offense was "not a 'victimless' crime," citing Rule 3:28, Guideline 1(c). Citing N.J.S.A. 2C:43-12(e)(3), he noted the "disparity in age[] and power" between defendant and J.R., that defendant had "forcibly groped and actually bit the victim," and that, as a result, J.R. and her family were "emotionally traumatized." He further noted that the victim did not wish "'to forego prosecution,'" quoting N.J.S.A. 2C:43-12(e)(4).

Quoting Guideline 3(i)(3), the prosecutor further noted that the crime was "deliberately committed with violence or threat of violence." He alleged that defendant had bitten the victim's neck and warned her not to tell anyone about the incident. Lastly, quoting N.J.S.A. 2C:43-12(e)(7), the prosecutor claimed "the needs and interests of the victim and society" required defendant's rejection from PTI, noting that if convicted, defendant would be required to register pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21.

During oral argument on May 7, the judge concluded that defendant should be psychologically evaluated to determine if he had "some type of psychosexual issue . . . going on." As a result, defendant was evaluated by ...

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