On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-08-00551.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
Defendant J.F.P. appeals his April 16, 2010 conviction of third-degree issuing a bad check, N.J.S.A. 2C:21-5, after pleading guilty to the only count of Somerset County Indictment No. 07-08-00551. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for reconsideration of defendant's termination from the Pre-trial Intervention (PTI) Program.
A Somerset County Grand Jury indicted defendant on August 8, 2007, alleging in one count that on November 8, 2005 and November 20, 2005, defendant issued two checks for $1435.50, knowing they would not be honored. The State informed us in its brief that on November 8, 2005, defendant issued a check to Bobcat of Central Jersey (Bobcat) to pay for equipment rentals. He wrote on the check, in the memo section, "November 1/2 Payment." The check was returned for insufficient funds on November 18, 2005. Another check submitted by defendant to Bobcat in the same amount on November 20, 2005, was not honored because it was drawn on a closed account. He wrote on that check "November 2nd 1/2 Payment."
Defendant was admitted into PTI on December 19, 2007. As special conditions of PTI, he was ordered to perform fifty hours of community service and to pay restitution to Bobcat in the amount of $2871, a $50 PTI enrollment fee pursuant to N.J.S.A. 2C:43-3.1(2)(d) and a $75 Safe Neighborhood Assessment pursuant to N.J.S.A. 2C:43-3.2a(2), totaling $2996 in payments.
On October 17, 2008, the Somerset County Probation Department recommended a second twelve-month postponement in a memorandum, which provides in its entirety:
On 12/19/07, the above named defendant was placed in the Pretrial Intervention Program for the charge(s) of Bad Checks over $200-Knowing. The defendant has reported as directed, completed his 50 hours of Community Service, and [is] working full time. The defendant tested negative for all random urine/oral swab specimen[s] while pending these charges. The defendant has a significant balance remaining of $1,175.00. Therefore, it is respectfully recommended that the defendant be granted a 2nd postponement of 12 months to allow him to pay his monies in full.
An order of postponement was signed by the court on October 27, 2008.
A notice of intent to terminate PTI was sent December 31, 2008, and on February 2, 2009, after a hearing, defendant was terminated from the program for failure to report, failure to follow through on substance abuse treatment and failure to make timely restitution payments. On April 9, 2009, defendant pled guilty to the one-count indictment.
Defendant then obtained new counsel who sought reconsideration of defendant's PTI termination by the judge who accepted defendant's guilty plea, not the judge who conducted the original termination hearing. This motion was denied. Defendant was sentenced on April 16, 2010, to two years of probation, seventy-five hours of community service and payment of the balance of the restitution owed to Bobcat, as well as the mandatory penalties including another $75 Safe Neighborhood Assessment. The court ...