On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-12-2246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2012
Before Judges Reisner and Yannotti.
Defendant appeals from an order entered by the Law Division on April 21, 2011, which upheld the denial of his application for admission to Pre-Trial Intervention (PTI). We affirm.
Defendant was charged with second-degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); and third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7) (count two). On December 2, 2010, defendant pled guilty to count one, which was amended to charge third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3.
At the plea hearing, defendant stated that on July 28, 2010, he was in Manalapan, had an encounter with a person identified as M.B., and took money from him. Defendant acknowledged that he had conspired with co-defendants Justin Basilone and Brian Pabian to "get that money" from M.B. Defendant entered his plea, pending consideration of his PTI application.
On January 26, 2011, the county prosecutor issued a memorandum denying defendant's application. The memorandum indicated that on July 28, 2010, a police officer from the Manalapan police department responded to a report of a robbery. The victim was M.B., who said that he had been standing outside of his home with Dennis Hernandez (Hernandez), when two vehicles pulled up: an Infiniti Q45 with two occupants, and a Chrysler 300 with three occupants.
Co-defendant Philip Maritato (Maritato) was the driver of the Chrysler, and defendant was seated in the passenger seat. A third passenger, who was wearing a ski mask, exited the car and began to strike his fist onto the palm of his other hand. The other occupants of the Chrysler exited the car and approached Hernandez. They shouted and cursed and said they would get him. Hernandez went to his back yard to hide and use his cell phone to call the police.
The men caught up with M.B. The man wearing the ski mask ripped off M.B.'s shirt and threw him to the ground. The men sat upon M.B.'s chest and punched him in the face. They went through his pockets, stole his money and fled to their cars. M.B. identified the men who assaulted him. He said they took "a little" less than $2,000 from him.
Another Manalapan police officer was investigating the robbery when he noticed defendant and Maritato walking on the sidewalk. Maritato was found in possession of a sum of money that appeared to be linked to the robbery. Maritato stated that he drove defendant and the other males to the place where the robbery was committed.*fn1
The prosecutor's memo stated that defendant should not be admitted to PTI because the facts of the case indicated that defendant and the others planned and executed the crime, and the victim had sustained injuries to the face, arms and legs in the incident. The memo stated that the offense had been committed deliberately and with violence, and the victim was injured in the assault.
The memorandum also stated that defendant lacked the motivation to succeed in PTI. The memo noted that defendant had not appeared for two meetings regarding PTI admission, and defendant had some contact with the courts, including a charge in the Family Part and two motor vehicle charges. The memorandum concluded that the State had considered the positive factors in defendant's application, but found that the negative factors "significantly outweigh[ed] the positive," making defendant an "inappropriate candidate for PTI."
Defendant filed a motion in the trial court appealing the denial of his admission to PTI. The trial court considered the matter on April 21, 2011, and placed its decision on the record that day. The court determined that defendant had not clearly and convincingly established that the prosecutor's decision was a patent and gross abuse of ...