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State of New Jersey v. Cupertino Garcia

May 2, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CUPERTINO GARCIA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-1952.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2011

Before Judges Reisner and Alvarez.

The Hudson County Prosecutor appeals a June 11, 2010 Law Division order admitting defendant Cupertino Garcia into the pretrial intervention (PTI) program over his objection. The Criminal Division Manager recommended defendant's rejection from PTI because of his status as an illegal alien, a relevant but not conclusive factor under State v. Liviaz, 389 N.J. Super. 401 (App. Div.), cert. denied, 190 N.J. 392 (2007). In a one-sentence letter, the prosecutor agreed. After consideration of the reasons for defendant's rejection, we concur with the court's order, substantially for the reasons stated in Judge Lourdes I. Santiago's cogent written opinion of June 11, 2010, and thus we affirm.

Defendant has lived in this country for over twenty years. In order to be able to work as a limousine driver, it is alleged he obtained a driver's license in the name of Carlos Palacios.

In the summer of 2009, the real Carlos Palacios was informed that his car insurance premiums were high because of his driving history. As a result, he obtained a copy of his motor vehicle abstract and learned that someone using his name had been involved in motor vehicle accidents on October 28, 2006, January 14, 2007, and August 14, 2007. Palacios actually was the driver during a fourth accident listed on the abstract, which occurred on April 29, 2006.

The resulting police investigation led to the limo company for which defendant worked, and the authorities quickly ascertained the person unlawfully using Palacios's name most likely worked as a driver for that particular company. Defendant was soon located and charged. He made arrangements through counsel to turn himself in on July 30, 2009, and was thereafter indicted for fourth-degree wrongful impersonation, N.J.S.A. 2C:21-17(a)(4).

On February 17, 2010, defendant's application for admission into PTI was rejected by the Hudson County Criminal Division Manager's office. The rejection letter states:

The defendant is not recommended to the [PTI] program for the following reason: The nature of the offense, [N.J.S.A.] 2C:43-12(e)(1): The defendant has been living illegally in the United States for 20 years and has made no attempt to address his illegal status and live in this country according to the Immigration Laws. The nature of the offense in which the defendant used another person's legitimate driver's license in an attempt to keep his job was an attempt to further his living in this country illegally and circumvent the immigration laws. It also caused great inconvenience to the victim.

The Hudson County Prosecutor's Office formally agreed with the Criminal Division Manager's recommendation on March 2, 2010. That rejection letter, addressed to the Division Manager's office and copied to defense counsel, states in its entirety:

We have reviewed the decision made by you in the above referenced application for enrollment into the Hudson County [PTI] Program and concur with ...


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