On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2385.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges Gilroy and Nugent.
Defendant appeals from the June 12, 2009 order that denied his motion seeking to reverse the Monmouth County Prosecutor's decision rejecting his application for admission into the County's pretrial intervention (PTI) program. We affirm.
A Monmouth County Grand Jury charged defendant with second-degree endangering the welfare of a child (distribution of child pornography), N.J.S.A. 2C:24-4b(5)(a) (count one), and fourth-degree endangering the welfare of a child (possession of child pornography) N.J.S.A. 2C:24-4b(5)(b) (count two). On January 5, 2009, defendant pled guilty to count two of the indictment. In return for defendant's guilty plea, the State agreed to dismiss count one of the indictment and to recommend a sentence of probation conditioned on defendant undergoing a pre-sentence psychiatric examination by Dr. Howard Silverman and abiding by his recommendations. Additionally, the State did not object to defendant making an application for admission into PTI.
On a date not disclosed in the record, defendant applied for admission into PTI. On April 1, 2009, the prosecutor rejected defendant's application. Defendant appealed that rejection. On June 12, 2009 the trial court denied the appeal. On that same day, the trial court, sentenced defendant pursuant to the negotiated plea agreement to three years of probation. It is from the June 12, 2009 order that defendant appeals.
Defendant is a forty-nine year old first-time offender. On September 27, 2007, the police executed a search warrant of defendant's home. The police interviewed defendant, who admitted to possessing child pornography on his computer. On examination of the computer, the police discovered it contained sixteen images and ten videos depicting child pornography. In a statement to the police, defendant explained that his initial exposure to child pornography was accidental, but that his curiosity drove him thereafter to purposefully seek out child pornography because it sexually aroused him.
On January 5, 2009, defendant pled guilty to count two of the indictment. On January 26, 2009, the Monmouth County Criminal Division Manager recommended that defendant be admitted into PTI. On January 29, 2009, defendant underwent a presentence psychiatric evaluation with Dr. Silverman. In his report, Dr. Silverman indicated that defendant denied knowingly downloading child pornography or being sexually aroused by it. That statement conflicted with the initial statement defendant had given to the police.
On April 1, 2009, because of those conflicting statements, the prosecutor issued a written memorandum rejecting defendant's application for admission into PTI. The prosecutor determined that defendant was not amenable to rehabilitation because of his prior inconsistent statements regarding his conduct. The prosecutor explained in the memorandum:
As a result, determining the motives for a defendant's behavior in a matter such as this, become of paramount importance. Unfortunately, the defendant has not made the discerning of his intent, or the extent of his pathology, an easy matter. While a more comprehensive examination might provide greater insight into the defendant's behavior, it might not: the defendant has already made contradictory statements concerning his involvement in this matter. As a result, I would place no faith in a second examination and, as a result, have no way to determine, on this record, whether [PTI], would be a "sufficient sanction to deter criminal conduct" on the part of [defendant].
On April 13, 2009, defendant appealed seeking a reversal of the prosecutor's rejection. On April 20, 2009, at his counsel's request, defendant underwent a psychological evaluation by Dr. Philip Witt. In that examination, defendant admitted to purposefully downloading child pornography and to being sexually aroused by it. At the appeal hearing on June 12, 2009, the prosecutor acknowledged that he had reviewed Dr. Witt's report but that it did not alter his April 1, 2009 decision. On the same day, Judge Ronald Lee Reisner entered an order supported by an oral decision, denying defendant's appeal. In so doing, the court stated:
The Prosecutor took the position that the defendant's actions have not demonstrated that he would be an appropriate candidate because of his inability to determine exactly what type of rehabilitation . . . ...