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State of New Jersey v. Diane O'brien

February 10, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-03-5371.



Argued September 15, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

The State appeals from the April 23, 2010 order that directed defendant Diane O'Brien's admission into Monmouth County's pretrial intervention (PTI) program over the objection of the County Prosecutor. The question presented is whether a defendant who previously received supervisory treatment under the conditional discharge statute, N.J.S.A. 2C:36A-1, and who later applied for and obtained an order vacating the conditional discharge, may thereafter be admitted into PTI. We conclude that N.J.S.A. 2C:43-12g and Rule 3:28, Guideline 3(g) prohibit any person previously placed into supervisory treatment under the conditional discharge statute from subsequent admission into PTI, whether the conditional discharge is later vacated or not. Accordingly, we reverse.


The facts are not in dispute. On March 18, 1990, defendant was charged in Monroe Township with the disorderly persons offense of possession of marijuana, N.J.S.A. 2C:35-10a(4). On April 26, 1990, defendant applied to the Monroe Township Municipal Court for a conditional discharge pursuant to N.J.S.A. 2C:36A-1. On that day, the court granted the application, placed defendant into supervisory treatment, and imposed appropriate penalties. One year later, having successfully completed her supervisory treatment, the court dismissed defendant's charge.

On October 25, 2008, defendant was arrested in Asbury Park and charged with third-degree possession of a controlled dangerous substance (CDS) (methamphetamine), N.J.S.A. 2C:35-10a(1). On March 18, 2009, a grand jury indicted defendant on the CDS offense. In December 2009, defendant filed a petition for "post-disposition relief" in the Monroe Township Municipal Court, seeking to vacate the conditional discharge. Defendant contended that at the time of her conditional discharge application, "she did not have the benefit of legal counsel, nor . . a full understanding and appreciation of the consequences of [that] disposition or [of] her procedural rights to contest the charge as originally issued." On January 14, 2010, the municipal court entered an order granting defendant's request to vacate her conditional discharge, and restoring the matter to the active trial calendar. On the same day, defendant pled guilty to the charge, and the court imposed appropriate fines and penalties.

In January 2010, defendant filed an application seeking admission into Monmouth County's PTI program. On March 1, 2010, the PTI investigator recommended that defendant's application be denied because defendant had previously received a conditional discharge. On March 19, 2010, the prosecutor concurred with the investigator's recommendation and rejected defendant's application. In so doing, the prosecutor stated:

[Defendant's] motion to vacate the prior conditional discharge was done solely in anticipation of now being accepted into PTI. Because she previously received the benefit [of] a conditional discharge, she should not now be given the benefit of PTI. The [S]tate agrees with the PTI investigator and rejects the defendant's application.

Defendant appealed. On April 23, 2010, the trial court entered an order supported by an oral decision that granted defendant's admission into PTI. In determining that the prosecutor's decision was a "patent and gross" abuse of discretion, the court reasoned, in relevant part, that for defendant to have been deemed ineligible for admission into PTI pursuant to Rule 3:28, Guideline 3(g) she must have been "conditionally discharged," not merely placed into supervisory treatment under N.J.S.A. 2C:36A-1. The court determined that the municipal court's January 14, 2010 order rendered the 1990 conditional discharge a legal nullity, and as such, "it [could not] be properly stated that . . . defendant was previously 'conditionally discharged'" as that phrase is used in Rule 3:28, Guideline 3(g). Accordingly, the court concluded that the prosecutor improperly relied upon defendant's prior conditional discharge in denying her admission into PTI.

The State asserts the court mistakenly construed the phrase "conditionally discharged" in Rule 3:28, Guideline 3(g) as meaning that an individual receives a conditional discharge when the underlying disorderly persons offense is dismissed, rather than when the individual is placed into supervisory treatment pursuant to N.J.S.A. 2C:36A-1. Alternatively, the State argues that even if ambiguities exist in the language contained in Rule 3:28, Guideline 3(g), defendant is barred from PTI pursuant to N.J.S.A. 2C:43-12g. The State contends that the ineligibility provision contained in N.J.S.A. 2C:43-12g prevail over those of Rule 3:28.*fn2 We agree.


PTI "represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system." State v. Leonardis, 71 N.J. 85, 92 (1976). The program is governed by statute and court rule. N.J.S.A. 2C:43-12; R. 3:28. "Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution," and "[a]ny defendant charged with a crime is eligible for [the program]." State v. Caliguiri, 158 N.J. 28, ...

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