NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-05-00817.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kevin J. Logan, Legal Assistant, on the brief).
Before Judges Yannotti and Leone.
Defendant pled guilty to conspiracy to possess a controlled dangerous substance, specifically cocaine, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1). He appeals from the judgment of conviction entered by the Law Division on December 13, 2011.
Defendant was charged under Monmouth County Indictment No. 10-05-00817 with third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1). Defendant thereafter filed an application for admission to pre-trial intervention (PTI). The PTI investigator recommended that defendant be admitted to the program, but the county prosecutor denied the application.
Defendant appealed to the Law Division, which remanded the matter to the prosecutor's office for clarification of the bases for denying the application and for reconsideration. The prosecutor reconsidered its decision and again determined that defendant should not be admitted to PTI. Defendant appealed to the Law Division, which affirmed the prosecutor's decision.
Defendant then filed a motion to suppress evidence obtained when the police stopped defendant for certain bicycle violations. The trial court conducted an evidentiary hearing on the motion and on August 9, 2011, entered an order denying the motion. On October 3, 2011, defendant pled guilty to an amended charge of third-degree conspiracy to possess CDS, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1), reserving the right to appeal the denial of his application for admission to PTI and the denial of his suppression motion. The court sentenced defendant to one year of probation and imposed appropriate fines and penalties.
Defendant appeals and raises the following argument for our consideration:
THE PROSECUTOR'S DENIAL OF SMITH'S APPLICATION FOR PRETRIAL INTERVENTION CONSTITUTED A PATENT AND GROSS ABUSE OF DISCRETION WHERE REJECTION WAS BASED ON INAPPROPRIATE FACTORS, FAILED TO CONSIDER ALL RELEVANT FACTORS, AND WAS CONTRARY TO THE PROGRAM DIRECTOR'S DETERMINATION THAT HE WAS AN "APPROPRIATE CANDIDATE FOR PTI"
BECAUSE THE OFFICER EXTENDED THE DURATION OF THE STOP BEYOND WHAT WAS NECESSARY TO CITE SMITH FOR THE BICYCLE VIOLATIONS, SMITH'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED
Defendant argues that the prosecutor's decision to deny his application for admission to PTI constituted a patent and gross abuse of discretion. We disagree.
As we noted previously, defendant filed an application for admission to PTI and, although the PTI investigator recommended his admission, the prosecutor denied the application. In a memorandum dated August 11, 2010, an assistant prosecutor noted that defendant was a fifty-eight-year-old father of three. He was self-employed in metal restoration, clean-up and garbage businesses.
The assistant prosecutor cited N.J.S.A. 2C:43-12(e)(3), which allows the prosecutor to consider a defendant's motivation and age when determining whether to admit a defendant to PTI. The prosecutor noted defendant's age. The assistant prosecutor stated that defendant lacked motivation to succeed in PTI. She pointed out that, since March of 1992, defendant has been charged thirty-seven times with various offenses and violations. His prior sentences included jail time, suspended jail ...