STATE OF NEW JERSEY v. BRIAN LIPPAI

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0986-08T40986-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BRIAN LIPPAI,

Defendant-Respondent.

________________________________________________________________

 

Submitted March 24, 2009 - Decided

Before Judges Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-05-00320.

Wayne J. Forrest, Somerset County Prosecutor, attorney for appellant (Anthony J. Parenti, Jr., Assistant Prosecutor, of counsel and on the brief).

Richard P. Schubach, attorney for respondent, joins in the brief of appellant State of New Jersey.

PER CURIAM

The State appeals from an order entered on October 7, 2008 admitting defendant into the Somerset County Pre-Trial Intervention (PTI) program over the State's objection.

Defendant was indicted on one count of third degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and -5b(11). On June 17, 2008, he applied pro se for admission into PTI. On June 18, the PTI director recommended against admitting defendant into the program. On the recommendation form, the PTI director checked only the box indicating that the "nature of the offense" was the reason for his recommendation. The State agreed with the recommendation and denied defendant's admission into the program. Defendant then moved in the trial court for admission into the program over the State's objection.

At the September 29, 2008 hearing on the motion, the State simply argued that the recommendation form was the one the criminal division manager chose to use and did not require any further reasons or a statement of facts for the rejection. When pressed by the court, the prosecutor stated that, although defendant filed a brief stating all the reasons why he should be entered into PTI, he did not provide that information when he made his initial application. We note, however, that defendant submitted his application pro se, without having had the advice of counsel.

The prosecutor represented that the State had

considered the defendant's age, the defendant's lack of record, the defendant's work history, and employment at Somerville Lumber, and taking some courses at community college. The State's reason for rejection, despite those factors, is that in certain cases the nature of the offense is appropriate, and also the interest of society. That's in [N.J.S.A.] 2C:43-12e and also Rule 3[:]28, Guideline (3)(1) . . . . That is the basis for the State's rejection.

The trial court rejected the State's reasons and noted that to overcome the prosecutor's veto of PTI, a defendant must clearly and convincingly establish that the prosecutor abused his discretion. The court reviewed all of the statutory factors set forth in N.J.S.A. 2C:43-12e, as well as the factors included in the guidelines under Rule 3:28, and concluded that defendant should be entered into PTI.

After the hearing, the trial court rendered a lengthy decision on the record and supplemented it on September 30, 2008 with a written statement of reasons in which it noted that the PTI director provided no specific reasons for the rejection. The court considered "[t]he nature of the offense" as the sole reason for denying PTI to be "inadequate on its face" in view of this defendant's circumstances. The court relied on State v. Ridgway, 208 N.J. Super. 118, 125 (Law Div. 1985), for the proposition that "a purported statement of reasons which . . . does no more than parrot, in truly conclusory terms, the language of the Guidelines is not [a] statement at all."

In this appeal, the State argues:

POINT ONE

THE COURT BELOW ERRED BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE PROSECUTOR WHERE THE PROSECUTOR CONSIDERED ALL OF THE RELEVANT FACTORS, DID NOT CONSIDER IRRELEVANT FACTORS, AND DID NOT SUBVERT THE GOALS OF PTI WHEN DENYING DEFENDANT'S PTI APPLICATION

A. Review of a prosecutor's decision to deny admission into PTI is extremely limited

B. The court below erred because Defendant was informed of the basis for his PTI rejection and failed to respond with compelling reasons to admit him over the prosecutor's objection

We have carefully considered the State's arguments in light of the record and the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Robert B. Reed on the record of September 29, 2008 and in his written statement of reasons dated September 30, 2008.

Affirmed.

 

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A-0986-08T4

 

June 22, 2009