NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-01-0012.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Riether, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ashrafi and St. John.
Defendant Kyle Hickman was indicted on third-degree charges of aggravated assault on a police officer and resisting arrest. He appeals from denial of his application for enrollment in the Pretrial Intervention Program (PTI), pursuant to N.J.S.A. 2C:43-12 to -14 and Rule 3:28. We affirm.
On October 28, 2011, at approximately 11:00 p.m., a Penns Grove police officer patrolling in his vehicle saw defendant in the middle of the street yelling obscenities in the presence of other juveniles. As the officer approached and stopped his vehicle, defendant challenged him, saying, "Get out of the patrol car, you pussy. I ain't scared of you." The officer believed that defendant was intoxicated because of his slurred speech and erratic behavior. As the officer stepped out of his vehicle, defendant stepped toward him and took a boxer's stance with clenched fists. The officer announced that he was placing defendant under arrest. When the officer moved closer, defendant punched him in the face.
The blow caused the officer's face to swell and his contact lens to embed in his eye. The officer partially subdued defendant in a headlock. Defendant continued to fight and resist by flailing his arms and legs. With the help of another officer, defendant was handcuffed and restrained.
A Salem County grand jury returned a two-count indictment against defendant: third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest with the use of physical force and violence, N.J.S.A. 2C:29-2(a).
Defendant was twenty years old at the time of his arrest. He had two prior contacts with the criminal justice system as a juvenile but no record of adjudication as a juvenile delinquent, and no record of criminal charges as an adult. He applied for admission to PTI. The prosecutor rejected the application.
Defendant appealed the denial to the Law Division pursuant to Rule 3:28(h). In support of the appeal, defendant and his mother wrote letters. Defendant referred to his record as an honor student and varsity athlete in high school, and he blamed his family's financial difficulties since that time for leading him astray. Describing his mistake as "turn[ing] to partying and alcohol as an escape, " defendant offered to make a presentation to high school students about the dangers of under-aged drinking in the context of problems it can lead to other than driving while drunk. Defendant's mother wrote that her son was also a victim on the night of the incident, suggesting that his actions were a product of financial problems, alcohol, and, generally, police abuses.
The Law Division referenced its limited role in reviewing the prosecutor's decision and denied the appeal. Defendant then entered into a plea agreement with the prosecution and pleaded guilty to third-degree resisting arrest. He was sentenced to one ...