STATE OF NEW JERSEY v. ROLANDO PATRICIO DIAZ-CALLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1115-08T41115-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

vs.

ROLANDO PATRICIO DIAZ-CALLE,

Defendant-Respondent.

__________________________________

 

Submitted: May 28, 2009 - Decided:

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-00643.

Wayne J. Forrest, Somerset County Prosecutor, attorney for appellant (Matthew Murphy, Assistant Prosecutor, on the briefs).

Law Offices of Ronald D. Istivan, attorneys for respondent (Steven F. Kaplan, on the brief).

PER CURIAM

By leave granted, we review an order admitting defendant Rolando Patricio Diaz-Calle to the Pre-Trial Intervention Program (PTI) over the objection of the Somerset County Prosecutor. We affirm.

On June 28, 2008, defendant was operating a registered and insured motor vehicle. Unknown to him, his Bound Brook destination was a suspected illegal "fill-recycling" transfer station and local, county and State authorities had commenced an investigation of activities at the site. On June 28, the dump truck operated by defendant was stopped by the local police after a police officer noticed an equipment violation. Defendant produced a Florida commercial driver's license that bore his photograph, the name "Amado Sancho Fernandez," and a Florida address.

The officer quickly determined that the license was fictitious. He also noticed that the transaction number on the bottom of the license was the subject of a New Jersey State Police "Track Bulletin." When the officer requested defendant to write his name and date of birth on a piece of paper, the name written by defendant did not match the name on the license. A Florida Identification Card found in defendant's wallet contained the same information as the license.

A subsequent search of defendant's wallet revealed three more items of fraudulent identification: a United States Department of Homeland Security Employment Authorization Card, a Federal Medical Examiner's Certificate, and a Bank of America VISA Debit Card. The latter document was the only document bearing defendant's name. When asked, defendant informed the officer that Rolando Diaz was a friend. Defendant was placed under arrest.

On July 8, 2008, defendant was charged with one count of third degree exhibiting a simulated document and the disorderly persons offense of hindering apprehension by volunteering false information to a law enforcement officer. He was also charged with two motor vehicle offenses: operating a motor vehicle without a license and failing to maintain lamps. On September 2, 2008, a grand jury issued an indictment charging defendant with third degree exhibiting simulated documents, N.J.S.A. 2C:21-2.1c; two counts of fourth degree possession of simulated documents, N.J.S.A. 2C:21-2.1d; and one count of third degree tampering with public records, N.J.S.A. 2C:28-7a(2).

On July 11, 2008, defendant filed a PTI application. On July 15, the PTI Program Director issued a Notice of PTI Rejection; the county prosecutor concurred that day. The prosecutor cited two reasons for the rejection. First, "[t]he crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others." Second, "[r]ecords indicate that the defendant is in the United States illegally. The fact that the defendant became involved in the instant offense while in the U.S. illegally is indicative that PTI would not serve as sufficient sanction to deter the defendant from future criminal activity in the United States."

It is undisputed that defendant was born on June 8, 1983, in Ecuador. He arrived in the United States by way of Mexico in 2001. He is not a legal alien. At the time of his arrest, he lived with a woman with whom he has two daughters. He has never been convicted of a crime in this or any other country.

Defendant filed an appeal pursuant to Rule 3:28(h) and N.J.S.A. 2C:43-12d. On October 2, 2008, Judge Edward Coleman granted defendant's appeal and admitted him to the PTI program. In his oral opinion, Judge Coleman recognized that defendant must demonstrate that the prosecutor patently and grossly abused the discretion reposed in him to administer the PTI program. On the other hand, guidelines and decisional authority exist to inform the exercise of this discretion. The judge noted that one such rule prohibits the denial of PTI admission solely because the defendant is an illegal alien. State v. Liviaz, 389 N.J. Super. 401, 406 (App. Div.), certif. denied, 190 N.J. 392 (2007).

In Liviaz, the defendant was an illegal alien. He had remained in this country for a substantial period of time. Id. at 405. He came to the attention of police when he attempted to obtain a driver's license using fraudulent documents. Id. at 404. Unlike defendant in this case, however, Liviaz had been arrested in 2002, released, failed to appear for a pre-arraignment conference, and had been a fugitive for three years. Id. at 406. He also failed to appear for his arraignment on the instant charges and a warrant issued to obtain his appearance. Ibid.

Judge Coleman found that the continuing illegal activity cited by the State was no more than defendant's continuing status as an illegal alien. He further found that the State had no reason to deny defendant admission to PTI other than his illegal status. The judge stated:

[I]t appears in looking at the factors that were taken into consideration it really boils down to he's here illegally for seven years and hasn't made any attempt to gain legal status. So, therefore, he's involved in a continuing illegal activity, which has been clearly indicated [by] the Appellate Division that that's an abuse of discretion. You can't make your decision solely on that. You have to have something further. The State here doesn't have anything further. Everything they point to surrounds this criminal event. Nothing other than this criminal event.

So I do find that the State [ha]s abused their discretion, that the defense has shown a patent abuse of discretion, that the defendant should be admitted into the PTI program . . . .

We, too, have canvassed the record and concur that at base the only continuing criminal activity cited by the State is defendant's status as an illegal alien. This is insufficient as a matter of law to support rejection from PTI. We, therefore, affirm substantially for the reasons expressed by Judge Coleman in his October 2, 2008 oral opinion.

Affirmed.

The State argues that Judge Coleman overlooked the continuing nature of the illegal dumping operation, the on-going investigation of that operation, and defendant's use of stolen personal identification information. However, the record is devoid of any evidence that defendant was involved in the continuing operation of the illegal dump, he was not charged with any offense even remotely related to that enterprise, the record is devoid of any evidence of identity theft, and the false information used to obtain his driving credentials was the very offense with which he was charged.

(continued)

(continued)

6

A-1115-08T4

June 30, 2009