July 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AMY G. SCHULTZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 08-05-01094.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2011
Before Judges A.A. Rodriguez and LeWinn.
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).
In May 2008, defendant was charged in an accusation with forgery, N.J.S.A. 2C:21-1(a)(1); obtaining a controlled dangerous substance (CDS) by fraud, N.J.S.A. 2C:35-13; and possession of CDS, N.J.S.A. 2C:35-10(a)(1), all third-degree offenses. These charges stemmed from defendant's forgery of her prescription for Norco*fn1 , to increase the number prescribed from sixty to ninety. In June 2008, defendant was admitted into the Pre-Trial Intervention (PTI) program, pursuant to N.J.S.A. 2C:43-12 to -13. She now appeals the termination of her participation in PTI, following which she entered into a negotiated plea agreement whereby she pled guilty to third-degree obtaining CDS by fraud and was sentenced to one year of probation. We affirm.
Upon being accepted into PTI, defendant received a notice informing her of the name of her probation officer, advising her of the duty to report to that officer as directed and requiring her to perform community service as a condition of PTI. The form noted further that by participating in PTI, defendant had "consented to the conditions of . . . supervision and acknowledge[d] that failure to comply constitute[d] a violation" of PTI.
On January 27, 2009, defendant's probation officer served her with a notice of termination of PTI, stating the following reasons: (1) failure to report to probation on five specified dates between July 2008 and January 2009; (2) failure to advise probation of a change of address after the probation officer unsuccessfully attempted to locate defendant at the home address she supplied; (3) failure to obtain a substance abuse evaluation; (4) submitting urine screens that tested positive for opiates in August 2008 and January 2009; (5) failure to pay certain financial obligations; (6) failure to perform community service; and (7) failure to meet the special conditions of strict random drug testing and drug counseling.
At a hearing on March 20, 2009, defendant claimed that she had difficulty meeting her probation officer on Mondays, as chosen by the officer, because she worked on Mondays; she also asserted that she was under the care of a physician for chronic bronchitis, which required her to be on bed rest and for which she was prescribed cough medicine containing a narcotic, which caused the positive urine screens. The judge concluded that defendant "cannot satisfactorily complete [PTI]." He added that he was "not satisfied that [defendant] was bedridden and couldn't show up for probation. She really hasn't done anything that she [is] supposed to do."
Defendant filed a motion for reconsideration supported by a certification from her attorney stating that: defendant was on sick leave for upper respiratory infections and pneumonia from "approximately" October 21 through December 1, 2008, and was unable to work or report to probation during that time; when she tried to schedule a substance abuse evaluation at the facility recommended by her probation officer, she was informed the facility did not accept her insurance; she started community service in January 2009; and during the six months defendant was in PTI, she was under a physician's care for "over [six] weeks." Defendant appended several prescription forms from her doctor, indicating the medications she was taking in October and November. The doctor also provided two notes of her inability to work for the weeks of October 21 and November 17 through December 1, 2008; one note indicated that "she may return to work 11/3/08[,]" and another indicated the same as of "11/17/08."
The judge denied reconsideration, noting that "defendant does not assert that this [c]court's decision . . . was not supported by the facts." The judge found that defendant's failure to comply with the specified conditions of PTI was undisputed, adding:
[D]efendant's motion for reconsideration is based on the reasons why . . . [she] failed to complete each of the requirements previously stated. There is nothing new being presented today that could not have been presented at defendant's termination hearing . . . .
Additionally, nothing has been presented by way of an expert report to show that defendant's prescriptions would provide a false positive on her urine tests. Additionally, although the prescriptions provided note defendant could not work, only one note noted bed rest from 11/17 until 12/1/08. The same was dated November 25, '08, . . . which means, although she couldn't go to work, there was nothing prohibiting her from going to probation.
Her only payment was on July 21, 2008, despite the fact that she had been working at a men's clothing store . . . . She can't report to probation because she's working, and she's making money, she should be able to pay her fines, which she didn't do. There's a contradiction there. Many of the reasons given for non-performance appear here to be contradictory. *fn2
On appeal, defendant contends:
IT WAS NOT AN EXERCISE OF SOUND DISCRETION THAT LED THE JUDGE TO TERMINATE DEFENDANT'S ENROLLMENT IN PTI AND THE ORDER MUST BE REVERSED.
Having reviewed this contention in light of the record and the controlling legal principles, we conclude it is without merit.
N.J.S.A. 2C:43-13(e) provides that, "[u]pon violation of the conditions of [PTI], the court shall determine, after summary hearing, whether said violation[s] warrant the participant's dismissal from the . . . program or modification of the conditions of continued participation in that or another . . . program." Relying upon State v. Devatt, 173 N.J. Super. 188 (App. Div.) certif. denied, 84 N.J. 441 (1980), defendant asserts that the judge did not "take into account the particular circumstances" of her situation in deciding whether her conduct warranted termination. Id. at 195. We disagree. Defendant presented after-the-fact excuses for her various violations but demonstrated no effort to communicate with her probation officer about those excuses during the time she was required to comply with conditions such as reporting, community service and obtaining a substance abuse evaluation.
In other words, the record is devoid of any evidence that defendant ever presented her medical condition to her probation officer as an explanation for her failure to comply with the conditions of PTI. As the judge noted, defendant did not dispute her non-compliance with PTI conditions. At the termination hearing, defendant presented argument, but no documentation, of her medical "excuses." Only in support of her reconsideration motion did she provide such documents.
We are satisfied that the judge properly concluded that defendant had demonstrated an inability to comply with the conditions of PTI sufficient to warrant her termination. PTI termination pursuant to N.J.S.A. 2C:43-13(e) is not analogous to the somewhat more lenient standards governing the termination of probation under N.J.S.A. 2C:45-3(a)(4).*fn3
There is no standard of excusable failure or requirement of willful failure in the PTI termination statute as in the probation revocation statute. Thus, despite case law analogizing PTI termination with probation revocation, the probation revocation standard is not interchangeable with the standard for terminating PTI. [State v. Pellegrino, 254 N.J. Super. 117, 120 (App. Div. 1992).]
The "[a]dmission of an applicant into . . . [PTI] shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12(b). While the "nature" of defendant's offenses may have supported her application for PTI, her "amenability to correction" and "responsiveness to rehabilitation" were essentially non-existent once she was accepted into the program. We are satisfied that the judge exercised sound discretion in terminating defendant from PTI and in denying her motion for reconsideration, which, as the judge noted, failed to state any "matters . . . which counsel believe[d] the court . . . overlooked or as to which it . . . erred." R. 4:49-2.