On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-11-00918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Lihotz and Waugh.
We review the State's appeal from a Law Division order compelling defendant M.S.'s admission to the pretrial intervention program (PTI). The State objects to diverting defendant and challenges as error the court's finding that the objection failed to consider relevant factors, was based on inappropriate factors, and amounted to a clear error of judgment. State v. Bender, 80 N.J. 84, 93 (1979). We reject these arguments and affirm.
The underlying facts are not disputed. Defendant was the owner and operator of a North Wildwood variety gift store. In May 2009, defendant attended a trade show held at the Atlantic City Convention Center, where he ordered several items from Turkey Creek Trading Company. The merchandise was shipped to defendant's store on July 7 and 8, 2009.
The police received a civilian complaint suggesting defendant's Boardwalk store was selling "inappropriate items." On July 15, 2009, four North Wildwood Police Department officers investigated the complaint. Upon entering defendant's store, the police saw contraband displayed for sale, including several styles of Airsoft rifles and handguns, six expandable batons, seven butterfly knives and fourteen pairs of brass knuckles. The rifles and handguns were designed to look like real weapons, but were actually pneumatic guns that fired small, round, plastic projectiles. Some of the guns were distinguishable from actual weapons by red or orange tips on the end of the barrels; others, however, did not include these tips, giving the appearance of an actual gun.
Defendant, who was not present when the police arrived, was summoned to the store. The police informed defendant the sale of the identified items was prohibited, to which he responded he "did not know it was illegal to sell the expandable batons, brass knuckles or butterfly knives." The officers advised they were seizing the unlawful items. Defendant believed his lawful purchase of the items in New Jersey suggested he could lawfully sell them in his store. Defendant cooperated with police, turning over all of the items requested. Defendant was issued a summons, arrested and thereafter indicted on the weapons-related charges.
Defendant applied for admission into the county PTI program, which was not recommended by Probation Officer Kim Marchelle, principally because of what was characterized as defendant's "continued criminal activities" that displayed "a pattern of anti-social behavior." See N.J.S.A. 2C:43-12(e)(8) (listing an applicant's participation in a supervisory treatment program considers the "extent to which applicant's crime constitutes part of a continuing pattern of anti-social behavior"). Marchelle's position was based on defendant's nine arrests: three for ordinance violations, for which he was convicted, and six for charges that were thereafter dropped.
Defendant requested Marchelle reconsider his PTI admission. When he did not receive a response, he filed a motion seeking to compel admittance.
J. Vincent Molitor, Assistant Prosecutor for Cape May County, adopted Marchelle's recommendation and opposed defendant's motion, submitting a statement of reasons supporting the denial of defendant's PTI application. The prosecutor's initial statement of reasons tracked the statutory factors to be "consider[ed] in formulating the recommendation," N.J.S.A. 2C:43-12(e). The State's submission analyzed "[t]he nature of the offense," N.J.S.A. 2C:43-12(e)(1), and "[t]he facts of the case," N.J.S.A. 2C:43-12(e)(2), acknowledging defendant asserted he did not know the sale of the confiscated items was illegal, but concluded "[i]t is more likely the case that [defendant] purposely and regularly profits from the sale of illegal items including prohibited weapons."
In its discussion of "motivation and the age of the defendant," N.J.S.A. 2C:43-12(e)(3), the State noted defendant has a wife and family, commenting:
On the other hand, [defendant] regularly sells counterfeit items, drug paraphernalia, and inherently dangerous weapons for profit. Moreover, [defendant]'s arrest history is troubling. [Defendant] has been arrested for harassment, possession of a controlled dangerous substance, fraudulent use of a credit card, theft by deception, theft by unlawful taking, receiving stolen property, forgery, aggravated assault, robbery, and terroristic threats. On balance then, [defendant]'s personal character does not indicate he is an appropriate candidate for PTI.
In assessing "[t]he likelihood that the [defendant]'s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment[,]" N.J.S.A. 2C:43-12(e)(6), the State reiterated defendant had "a significant history of arrests" which do not stem ...