On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-04-00856.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2011
Before Judges J. N. Harris and Fasciale.
Defendant Tracy D. Cain appeals from the March 19, 2010 order of the Law Division denying her motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Monmouth County Prosecutor (Prosecutor). We affirm.
The facts relevant to the issue on appeal are as follows. Cain was indicted for one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). Following her arrest and indictment, Cain entered into a provisional plea arrangement with the State, by which she pled guilty to third-degree conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). The plea was conditioned upon Cain's application for admission into the PTI program.
The Probation Department recommended that Cain be admitted into the PTI program, based upon two reasons: (1) although Cain "has numerous pending matters at the Municipal Court level," this was Cain's first "Superior Court matter," and (2) although Cain "was 'high' on the day of her arrest," she "will respond affirmatively to PTI supervision."
The Prosecutor disagreed with this recommendation and issued a two-page memorandum explaining the reasons for opposing Cain's application. The stated reasons for the Prosecutor's rejection were that (1) "defendant lacks the motivation to succeed in PTI" due to her prior contacts with the court, which "have failed to deter her," and (2) the crime constitutes "part of a continuing pattern of anti-social behavior." In addition to citing applicable sections of the New Jersey Code of Criminal Justice, the Prosecutor further stated, "[t]he State has considered the positive factors in the defendant's application. The State though finds that the negative factors significantly outweigh the positive making her an inappropriate candidate for PTI."
Cain appealed the decision rejecting her PTI application to the Law Division, where the judge declined to admit her to the PTI program over the Prosecutor's objection, reasoning:
The defendant's position with regard to the [P]rosecutor's reliance upon N.J.S.A. 2C:43-12(e)(3) is incorrect. The defendant's record provides a logical and rational factual basis for the
The [P]rosecutor's reliance upon
defendant's history of interactions with the court provides a rational basis for the conclusion that defendant's crime constitutes a pattern of antisocial behavior, indeed, during the ten-month period following defendant's arrest on November 28, 2008, she was arrested and convicted on two occasions on separate charges in municipal court. Such a record supports the [P]rosecutor's conclusion. There's nothing about the conclusion which is irrational or arbitrary. As such, the Prosecutor probably considered the factors set forth in N.J.S.A. 2C:43-12(e)(8).
The defendant has not presented clear and convincing evidence the Prosecutor's Office -- that the [P]rosecutor's decision, after weighing the various factors, constitutes an abuse of discretion or patent and gross abuse of discretion. Instead, the defendant's argument simply suggests that the [P]rosecutor should have weighed and this court should weigh the factors differently. Defendant has not demonstrated the [P]rosecutor failed to consider all of the ...