On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-03-448.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012 -
Before Judges Messano and Lihotz.
On our leave granted, defendant Tristan Lewis appeals from a May 22, 2012 order denying his motion to dismiss Middlesex County Indictment No. 12-03-448, charging him with fourth degree bail jumping, N.J.S.A. 2C:29-7. The indictment resulted from defendant's guilty plea to several violations of an earlier probationary sentence (VOP). During the VOP hearing defendant admitted, among other things, that he failed to appear at a hearing held on December 5, 2011. The trial court stayed its order pending interlocutory review.
While defendant's appeal was pending, the State orally moved to dismiss the indictment. Neither defendant nor his attorney was present. The trial judge granted the State's motion.
On appeal, defendant argues:
THE PLAIN LANGUAGE OF THE BAIL JUMPING STATUTE, N.J.S.A. 2C:29-7, STATES THAT IT DOES NOT APPLY TO A PROBATIONER'S FAILURE TO APPEAR. AS SUCH, THE INDICTMENT SHOULD BE DISMISSED.
SHOULD IT BE DETERMINED THAT MORE THAN ONE REASONABLE INTERPRETATION OF N.J.S.A. 2C:29 -7 MAY BE MADE, OR THAT THE STATUTE IS AMBIGUOUS, THE STATUTE MUST BE CONSTRUED AGAINST THE STATE AND IN FAVOR OF THE DEFENDANT, WHICH REQUIRES THAT THE INDICTMENT BE DISMISSED.
ALLOWING THE PROSECUTION OF DEFENDANT, A PROBATIONER, UNDER N.J.S.A. 2C:29-7 WOULD REQUIRE AN EX POST FACTO JUDICIAL ENLARGEMENT OF THE ...