On appeal from the Superior Court of New Jersey, Law Division, Warren County, Accusation No. 10-03-94.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant appeals his rejection from the Pretrial Intervention (PTI) Program. Although we agree that the prosecutor's two-tiered approach to rejecting defendant denied him due process and that consideration of Guideline 5 as a basis for rejection was improper, we are nonetheless satisfied the denial was not a patent and gross abuse of discretion. We therefore affirm.
On September 24, 2009, defendant drove his two co-defendants, Tiffany Moore and Donnetta Jackson, to the Phillipsburg Mall, where he gave the women ten fake one-hundred-dollar bills. He told them to use the bills to make purchases, and for every one-hundred-dollar bill used, defendant was to be paid eighty dollars, while Moore and Jackson would keep the remainder, along with any item they purchased. All three were subsequently arrested after mall security became aware of the activity and alerted local police. In one municipal complaint, defendant was charged with four counts of fourth-degree conspiracy, N.J.S.A. 2C:5-2a, to commit theft by deception, N.J.S.A. 2C:20-4a, and four counts of third-degree conspiracy, N.J.S.A. 2C:5-2a, to commit forgery, N.J.S.A. 2C:21-1a(3). In a second municipal complaint, defendant was charged with three counts of fourth-degree conspiracy, N.J.S.A. 2C:5-2a, to commit theft by deception, N.J.S.A. 2C:20-4a; three counts of third-degree conspiracy, N.J.S.A. 2C:5-2, to commit forgery, N.J.S.A. 2C:21-1a(3); three counts of third-degree conspiracy, N.J.S.A. 2C:5-2, to commit theft by deception, N.J.S.A. 2C:20-4a; and three counts of third-degree conspiracy, N.J.S.A. 2C:5-2a, to commit forgery, N.J.S.A. 2C:21-1a(3). In a statement given to police after his arrest, defendant admitted to engaging in similar conduct in Massachusetts.
Defendant applied for entry into the PTI Program. The program director rejected the application, citing the following reasons: "The defendant provided false information or was not being honest during his PTI [i]nterview (G-5). His attitude is such that he seems to be avoiding recognition of the extent of his role/responsibility in the instant offense, and his attitude would render PTI services ineffective (G-4)." By way of further explanation, the program direction stated:
The defendant provided false information by stating "if anything, they (the co-defendants) encouraged him to do it" (commit the instant offense). Co-defendants Tiffany Moore and Donnetta Jackson have at no time admitted they encouraged the defendant to commit these offenses.
In addition, the defendant denied passing fake bills in Massachusetts although he admitted Post-Miranda to authorities that he had done so.
The defendant's attitude is such that he seems to be avoiding recognition of the extent of his role/responsibility in the instant offense, and his attitude would render PTI services ineffective. He suggested that his co-defendant was the "mastermind" of the operation and that he was encouraged to participate. He claims that he found money in a bag at a bar, forgotten by a group playing pool. However, instead of turning the bag of money over to the police, he gives it to his co-defendants to spend while he waits inside and outside the Phillipsburg Mall. He initially advised this officer his co-defendants, after passing a phony $100.00 bill, would give him $80.00 and they would keep the balance. When this writer questioned him on why they would volunteer for such a low profit for themselves, he stated the co-defendants at first wanted 35%, but since they wanted to come to the Phillipsburg area and he paid for the gas, they agreed to a 20/80 split. Throughout the interview, the defendant suggests his co-defendants influence[d] and encourage[d] him to participate in these acts.
The prosecutor also rejected defendant's application, stating: "The State agrees that rejection is appropriate for the reasons expressed above. Should an appeal of this decision be filed, the State reserves the right to respond with a comprehensive analysis, including a statement of facts, reasons for rejection, and a citation of supporting legal authority."
Defendant appealed the rejection to the Law Division. Following oral argument on March 4, 2010, the court issued a written decision denying defendant's motion for admission into PTI. This appeal ensued. On appeal, defendant raises the following points for our consideration:
THE PROSECUTOR'S REJECTION OF MR. DELPECHE'S PTI APPLICATION FAILED TO PROVIDE ADEQUATE NOTICE OF THE GROUNDS FOR REJECTION, VIOLATING MR. DELPECHE'S RIGHT TO DUE ...