On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-01-00138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 - Decided Before Judges Axelrad and J. N. Harris.
In this appeal, we review an April 7, 2010 order that admitted defendant Enver Cenalia into the Pretrial Intervention Program (PTI) over the objection of the Morris County Prosecutor's Office. We reverse.
In January 2008, a Morris County grand jury indicted defendant for third-degree burglary, N.J.S.A. 2C:18-2(a), and third-degree theft, N.J.S.A. 2C:20-3(a). The allegations stem from the June 13, 2007, unauthorized entry into a garage at the Oakwood Village apartment complex in Mount Olive, and the taking of a new 32-inch flat screen television. Defendant was employed as a maintenance worker at Oakwood Village, and had master keys and access to all areas of the complex.
After charges were lodged against him, but before the indictment was filed, defendant sought admission to PTI pursuant to Rule 3:28. Although defendant's application received a favorable recommendation from the criminal division manager, defendant did not obtain the consent of the Morris County Prosecutor's Office. N.J.S.A. 2C:43-12(c). In the first of two challenges to the prosecutor's determination, the Law Division rejected defendant's appeal, indicating that it "cannot find that this decision represents an abuse of discretion nor a patent abuse of discretion."
Thereafter, defendant entered into plea negotiations with the State. These resulted in a plea arrangement by which, in exchange for dismissing the burglary count, defendant would plead guilty to theft, with a prosecutor's promise to recommend a non-custodial sentence. Additionally, the plea form expressly provided, "[defendant] will re-apply for PTI consistent [with] State v. Halm[*fn1 ]."
True to the plea agreement, defendant filed a motion for reconsideration, again seeking admission into PTI, but now with the burglary charge removed from the calculus. On the date originally scheduled for sentencing, defendant was permitted to begin an ad hoc participation in a "probation-like interlude," with the court deferring its decision on the motion for reconsideration until sometime in the future.*fn2
A month and a half later, the Law Division considered oral argument on the reconsideration motion. The prosecutor continued his objections to defendant's admission into PTI, notwithstanding the dismissal of the burglary charge. In the earlier rejection, the prosecutor had enumerated several reasons for not consenting to defendant's admission to PTI.
First, it believed that defendant's character and attitude demonstrated that he was not amenable to rehabilitation. This was based upon the prosecutor's perception of defendant's lackluster cooperation with the Mount Olive Police Department during its investigation of the television theft. Second, the prosecutor opined that there was "no nexus between the crime committed and the rehabilitation required" because defendant "at no time explained why he committed this crime." Third, the prosecutor believed that there were reasonable inferences from the investigation that defendant had "procured [other] televisions or other property by illegal means before." Defendant had supposedly admitted to stealing items from other tenants' garages, although he was never charged with such offenses. This, according to the prosecutor's compass, pointed to an insufficient basis to conclude that "future criminal behavior will not occur." Fourth, the prosecutor contended that "it was not until after the defendant was presented with the overwhelming and compelling evidence of his guilt that he stated he would repay [the victim] for her television." Fifth, the prosecutor was concerned that the then-pending charges included -- by dint of the residential burglary -- a virtual home invasion, which implicated heightened concerns about public safety. Finally, although not relying upon its unsubstantiated investigation of defendant's criminal history, which suggested that defendant was subject to several outstanding federal charges, the prosecutor nevertheless mentioned these allegations as part of its formal rejection.
At the time of oral argument of the reconsideration motion, the Law Division stated that defendant "has performed well during the test period of probation," making him "a suitable candidate for PTI." Several months later, the court amplified its determination in writing. After rejecting all of the rationales for rejection advanced by the State, the court held:
The [c]court, upon reconsideration of the defendant's application for P.T.I., has determined that when the burglary charge is "stripped away" from the bases given for the prosecutorial objection, the remaining factors are unsustainable. When weighed with the goals underlying P.T.I., and in ...