On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-07-2264.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 19, 2011
Before Judges Axelrad and Sapp-Peterson.
Defendant J.W. appeals from an order of the Law Division denying his motion for admission into the Pretrial Intervention (PTI) Program over the county prosecutor's objection. We reverse and remand.
On July 23, 2008, an Essex County Grand Jury returned a six-count indictment, 08-07-02264, against defendant, Larry Brown, and an unindicted co-conspirator unknown to the Grand Jury. Defendant was charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five), and second-degree eluding, N.J.S.A. 2C:29-2b (count six).*fn1
Defendant thereafter entered a plea of guilty to receipt of stolen property. In exchange for his plea, the State agreed to dismiss the remaining charge and to recommend a non-custodial sentence.
Defendant applied for admission into the Essex County PTI program. By letter of February 9, 2009, the Essex County Prosecutor's Office issued a letter denying defendant's application. The prosecutor's recitation of the events giving rise to the subject indictment against defendant and Brown was as follows:
According to the police incident report, on April 21, 2008, at approximately 7:50 p.m., Newark Police Officers were dispatched to . . . a carjacking in progress. When they arrived, the victim, Luis Gonzalez, reported that he had pulled his 1997 Jeep Wrangler out of the garage and parked it in the driveway with the keys in the ignition. While he was standing in the driveway, four black males approached him. Co-defendant, Larry Brown, asked him if he needed some help. When he refused the request for help, defendant Joshua Wilson jumped into the driver's seat of the Jeep. Mr. Gonzalez grabbed the defendant and tried to pull him out of the vehicle. Co-defendant, Larry Brown, pulled out a black revolver and pointed it at Mr. Gonzalez. The defendant then pulled out of the driveway and sped away. Co-defendant Larry Brown fled the scene on foot.
Officers put out a description of the stolen vehicle over police airways and the defendant was soon located by police. A Newark Police Helicopter assisted with the chase. The defendant ultimately exited the stolen vehicle in front of 395 S. 15th Street. The defendant and co-defendant, Larry Brown, fled from the vehicle on foot and were apprehended after a brief foot chase. The victim identified co-defendant Larry Brown as the individual who had pointed the gun at him. They were arrested without further incident. [Emphasis added.]
The prosecutor found aggravating factors one, two, seven, ten, fourteen, and seventeen. N.J.S.A. 2C:43-12e(l),(2),(7),(10),(14), & (17). As to factor one, the nature of the offense, the prosecutor noted that defendant pled guilty to receiving stolen property and admitted he had "committed the theft of an automobile that had been carjacked at gunpoint." The prosecutor concluded there was a specific and general need to deter automobile theft, particularly where the automobile was taken "in the presence of its rightful owner by force or with the threat of violence." The prosecutor additionally found defendant presumptively ineligible for PTI due to the threat of violence against the victim, see Guideline 3(i) of R. 3:28, acknowledging that Brown carjacked the victim and threatened him with a handgun, but in essence, treating defendant as an accomplice based on the premise that defendant "drove away in the stolen vehicle."
The prosecutor also found the following facts of the case implicated aggravating factor two:
As outlined above, the defendant was involved in the theft of an automobile that was carjacked in his presence. The defendant drove a stolen car away from the scene after the co-defendant threatened the victim with a handgun. His behavior indicates that he acquiesced in the co-defendant's use of violence against the owner of the car, which gave him the opportunity to drive away. Even without considering the co-defendant's involvement, the State finds it to be reprehensible that the defendant committed his crime in the presence of the vehicle's owner. His actions alone caused a violent situation, as the victim fought to protect his property. It ...