On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 09-08-1401 and 09-08-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2011
Before Judges Parrillo and Grall.
Defendant Michael Lazarski appeals from the February 8, 2010 order of the Law Division denying his motion to be admitted to the Pretrial Intervention (PTI) program over the objection of the Ocean County Prosecutor. We affirm.
The facts relevant to the issue on appeal are as follows. On November 7, 2008, while conducting an identity theft investigation, law enforcement officers seized a quantity of marijuana, a marijuana grinder, a multi-colored glass bong, a scale, and packaging material from the defendant's residence. The officers also observed two marijuana grow stations. The marijuana was later sent to the lab where it tested positive for marijuana and weighed a total of 148.8 grams.
While there, the police spoke with the twenty-two year old defendant, who admitted to using his former roommate's pedigree information to obtain four credit cards without his permission or knowledge, for which he charged a total of approximately $20,000. After being informed of his Miranda*fn1 rights, defendant advised the officers that he was attempting to pay for the credit cards, but was experiencing financial difficulties. He refused to explain why the credit cards were under his former roommate's name. Defendant was charged with identity theft,*fn2
fraud, possession of a controlled dangerous substance (CDS), possession of drug paraphernalia, and drug distribution.
While these charges were pending, on May 26, 2009, defendant entered the Boscov's store at the Ocean County Mall, picked up a Blu-Ray video DVD player valued at $399.99 and walked out of the store without paying for it. He later explained, during an interview with Ocean County Criminal Case Management, that "I walked into Boscov's and saw a DVD player. It was available so I took it [and] walked out the door."
As a result of these incidents, on August 5, 2009, defendant was indicted in two counts for third-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), and fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(3). Several weeks later, on August 20, 2009, defendant was separately indicted in a single count with fourth-degree shoplifting, N.J.S.A. 2C:20-11.
Defendant applied for admission into the PTI program and on October 22, 2009, the Probation Department recommended his admission. However, by letter of November 5, 2009, the prosecutor denied defendant's application based on considerations set forth in N.J.S.A. 2C:43-12e(1), (2), (8), (14) and (17), reasoning: Getting charged with the first case should have deterred the defendant from further criminal activity, but it did not. Additionally, these crimes appear to be part of [a] continuing pattern of anti-social behavior. According to the PTI Director's report, the defendant smoked marijuana "socially" from the time he was seventeen years old until November, 2008. Moreover, the defendant has twenty-three motor vehicle violations dating back to 2003. . . .. . . .
In evaluating this matter, this office gave positive weight to the following: the defendant's young age (22 years old); no criminal or disorderly persons convictions; and the fact that no presumptions against PTI apply. These positive factors, however, are outweighed by the factors against admission.
Defendant appealed his rejection from the PTI program to the Law Division. Following argument, the judge denied the appeal, concluding that the prosecutor's letter "is sufficiently detailed and ...