On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-09-0623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Reisner.
Defendant James Thomas appeals from: the June 18, 2008 order, upholding the recommendation against defendant's entry into the Somerset County Pretrial Intervention Program (PTI); and his subsequent conviction following a jury trial. We reverse the conviction based on an erroneous evidentiary ruling.
These are the salient facts. On March 6, 2007, defendant brought his 1994 Buick Park Avenue Sedan to Green Brook Pontiac Buick GMC Hummer (Green Brook) to be serviced. The next day, defendant learned that additional repairs were needed. Two days later, he picked up the car and learned that the cost of the service was $2,625.61. He issued a check from his Commerce Bank account for that amount. At the time, he knew that there were insufficient funds in his Commerce Bank account to cover the check. However, he alleges that he intended to transfer funds from his other accounts to cover the check. Defendant estimated that on that day, the combined balance of his other accounts was $5,400.
On Saturday, March 10, 2007, defendant's car broke down on the highway and he placed a stop payment on the check.*fn1 The car was towed for repairs on March 17, 2007. The new repair shop advised defendant that the repairs made by Green Brook may have been unnecessary and may have contributed to the vehicle's engine problems.
Kathleen Lasheras, Green Brook's comptroller, testified that defendant's check was declined due to insufficient funds. Following Green Brook's practice, Lasheras redeposited defendant's check on or about March 17, 2009. She then received a notification that a stop payment had been placed on the check.
Ten days later, Lasheras wrote to defendant informing him that Green Brook had not been able to negotiate the check after two attempts and that he had ten days from the date of the letter to make restitution. The letter to defendant was sent via certified mail. It was returned unclaimed three weeks later. Lasheras contacted the Green Brook Township Police Department.
Detective Christopher Dill investigated the matter, subpoenaed Commerce Bank records, and interviewed defendant. Subsequently, defendant was arrested and charged with third degree issuing a bad check, N.J.S.A. 2C:21-5c(2).
Defendant applied for admission into the PTI program. The program director recommended that admission be denied because the "the crime or crimes defendant is charged with constitutes a part of a continuing pattern of anti-social behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." The County Prosecutor followed the recommendation of the program director. The rejection referred to defendant's prior burglary convictions from October 1980 and March 1981, both from Illinois.
Defendant argued that he had only one burglary conviction, which occurred on October 6, 1980, and for which he was sentenced to three years incarceration. He disputed a March 26, 1981 burglary conviction. The State disputed defendant's assertion and proffered evidence that defendant received a two-year probationary sentence for the 1980 burglary conviction and a three year term of incarceration for the March 26, 1981 burglary conviction.
The judge upheld the prosecutor's denial, finding that there were "rational grounds" for the rejection. He reasoned that whether defendant has one or two burglary convictions is irrelevant because a single conviction provided a sufficient basis to deny entry into PTI.
Defendant filed a civil action against Green Brook. Prior to the criminal trial, the State moved in limine to bar defendant from introducing evidence of the action against ...