NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0077.
Joseph Krakora, Public Defender, attorney for appellant (M. Virginia Barta, Designated Counsel, on the brief)
Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Waugh and St. John.
Defendant Anhel Carrillo appeals from the denial of his application for entry into a Pre-Trial Intervention (PTI) program. We affirm.
The record discloses the following facts and procedural history leading to the determination under review.
On February 26, 2008, Hunterdon County Indictment No. 09-02-0077 was filed charging defendant with one count of third-degree causing death while driving unlicensed, contrary to N.J.S.A. 2C:40-22; two counts of third-degree tampering with public records or information, contrary to N.J.S.A. 2C:28-7(a)(1) or (2); and two counts of fourth-degree falsifying or tampering with records, contrary to N.J.S.A. 2C:21-4(a).
On April 2, 2008, the Criminal Division Manager of Hunterdon County PTI did not recommend defendant's application to PTI. On January 8, 2009, Judge Mahon granted defendant's motion to dismiss the causing death while driving unlicensed count, and also defendant's motion for a change of venue, transferring venue to Mercer County. As a result of the dismissal, defendant was permitted to reapply to PTI. However, the Mercer County Assistant Division Manager rejected defendant's application. The reasons given for the rejection included that even though the charge was dismissed, "we can not overlook the fact that a death did occur and it is a factor to consider. Your decision and affirmative actions to fraudulently obtain driving credentials enabled you to drive on the road which had fatal results."
Defendant appealed. He argued that State v. Brooks, 175 N.J. 215 (2002), allowed consideration of dismissed charges solely for the limited purpose of determining whether those charges should have deterred him from committing a subsequent offense, and should not have been considered in rejecting his application. The State contended that Brooks permitted it to consider the fatality as part of the case, and but for defendant's fraudulent license, the fatality would not have occurred.
Judge Gerald Council denied defendant's appeal setting forth his reasons in an oral opinion. The judge determined that the PTI coordinator "appropriately considered the total circumstances in arriving at the conclusion. That the defendant lacks the rehabilitative qualities that suggested he would be amenable to pretrial intervention treatment." The judge noted that the record demonstrated defendant's lack of truthfulness on numerous occasions. He concluded by stating, "[a]nd quite frankly, I'm satisfied ...