NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 29, 2014
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-02-0364.
Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney for appellant; Ms. Foddai, of counsel and on the brief).
Paul S. Chiaramonte argued the cause for appellant.
Before Judges Fuentes, Fasciale and Haas.
The State appeals from July 15, 2013 order reversing the prosecutor's rejection of defendant's application into the Pre-Trial Intervention (PTI) Program established pursuant to N.J.S.A. 2C:43-12 and Rule 3:28, and ordering defendant's enrollment into that program. We reverse and remand for further proceedings.
Defendant was involved in an automobile accident on the Garden State Parkway and sustained injuries. Emergency Medical Technicians (EMTs) arrived at the scene to provide medical attention, and as the EMTs assisted him, defendant stated to a nearby trooper that he possessed permits to carry a handgun. Defendant pulled from his pocket an unloaded nine-millimeter semi-automatic handgun, which he had previously stored in the glove compartment, and gave it to the trooper. Defendant also told the trooper that the handgun's magazine had fallen inside his automobile during the accident. The trooper saw the magazine, which was loaded with hollow point bullets, in plain view on the driver's side floor of defendant's vehicle.
Although defendant had permits to carry the firearm issued by the States of Pennsylvania and New York, he did not have a similar permit from New Jersey. The trooper informed defendant that it was illegal to carry a firearm on his person in New Jersey without a permit issued by this State, and arrested him for unlawful possession of a firearm under N.J.S.A. 2C:39-5b.
On February 28, 2013, a grand jury indicted defendant for second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3f. Defendant applied for admission into the PTI program and, on April 26, 2013, the criminal division manager, not the prosecutor, wrote defendant and stated in part that:
First and second degree crimes . . . are specific categories of offenses that establish a rebuttable presumption against admission of defendants into a PTI program. . . . PTI programs should ordinarily reject applications by defendants who fall within these categories unless the prosecutor has affirmatively joined in the application. A heavy burden rests with the defendant to present . . . (a) proof that the prosecutor has joined in the application and (b) any material that would otherwise rebut the presumption against enrollment. [R. 3:28, ] Guideline 3[(i).]
[The] Assistant Prosecutor . . . has informed the PTI Director that the [S]tate is not joining in this application . . . and is not ...