STATE OF NEW JERSEY v. LATISHA N. DRAKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1031-03T41031-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LATISHA N. DRAKE,

Defendant-Appellant.

______________________________

 

Argued November 9, 2005 - Decided

Before Judges Kestin and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division,

Union County, 01-12-1434.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jeffrey S. Mandel,

Designated Counsel, of counsel and on

the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent

(Steven J. Kaflowitz, Assistant

Prosecutor, of counsel and Patricia

L. Cronin, Legal Analyst, on the brief).

PER CURIAM

Defendant, Latisha Drake, having pled guilty to a third-degree crime of conspiracy to possess a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a, applied for acceptance into a pretrial intervention program. On March 18, 2003, she received a notice of rejection and was, thereafter, sentenced, on June 23, 2003, to a two-year probationary term and assessed the appropriate monetary penalties. The remaining counts of the indictment, including a count charging the second-degree crime of possession with intent to distribute within 500 feet of a public park, in violation of N.J.S.A. 2C:35-7.1, were then dismissed. On August 15, 2003, the rejection decision was upheld, R. 3:28(h), and this appeal followed. We affirm.

We note, initially, that none of the submissions relating to defendant's PTI application or her rejection are included in this record. We take our information, therefore, from what appear to be uncontested facts contained in the parties' briefs and in their representations before the judge who upheld the rejection.

Defendant's rejection was premised on

(1) the serious nature of the offense;

(2) defendant's prior juvenile and adult record; and

(3) defendant's failure to demonstrate necessary behavioral modifications.

Defendant had a long history of involvement with the criminal justice system. She had a prior juvenile record that included five arrests and an adjudication for drug distribution. She had thirteen adult arrests and two disorderly persons convictions. There were active warrants and unpaid fines as of the time of her arrest on these charges. All of these factors are appropriately considered by the director of the program and the prosecutor. N.J.S.A. 2C:43-12e; State v. Brooks, 175 N.J. 215, 229 (2002). They amply support the decision to reject a pretrial intervention application, even without the "enhanced deference" we are required to afford to that determination.

State v. Brooks, supra, 175 N.J. at 225. Defendant's claim that her rejection was a "patent and gross abuse of discretion," is without sufficient merit to justify discussion in a written opinion. R. 2:11-3(e)(2).

Defendant argues that when the appeal of the rejection of her PTI application was considered, the motion judge inappropriately recognized a presumption against her admission to the program. He recognized that presumption, created by

R. 3:28, Guideline 3(i), because the charge of a second-degree crime had not yet been dismissed as of the date of the rejection. We need not determine whether that presumption should have been applied since the record does not disclose that the PTI administrator utilized the presumption and, in any event, as we have said, the rejection is more than justified even without the presumption.

Finally, defendant claims the two-year probationary term was excessive under these circumstances. This issue was not raised below. The sentencing court had discretion to fix a probationary term of between one year and five years. N.J.S.A. 2C:45-2a. This sentence was well within the judge's discretion.

 
Affirmed.

The Judgment of Conviction identifies defendant as Latisha N. Drake, AKA: Laticia Drake, Latischa Drake. The Notice of Appeal identifies her as Latisha Drake.

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A-1031-03T4

November 23, 2005