STATE OF NEW JERSEY v. JOSEPH R. LIZARDI

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5364-09T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSEPH R. LIZARDI,

Defendant-Respondent.

___________________________________________

April 25, 2011

Submitted March 23, 2011 - Decided

Before Judges Fuentes and Newman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-01-0171.

Edward J. De Fazio, Hudson County Prosecutor, attorney for appellant (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

Robert J. Baron, attorney for respondent.

PER CURIAM

Plaintiff, the State of New Jersey by the Hudson County Prosecutor, appeals from the order of June 25, 2010 admitting defendant Joseph Lizardi into the pre-trial intervention program (PTI). That order has been stayed pending review by this court.

On September 2, 2009, defendant was a former New York City police detective employed by a security agency and licensed to carry a handgun in the State of New York. Defendant's employer had a contract effective the day before with the Hoboken Housing Authority to provide security for properties in Hoboken. Defendant responded to a sudden emergency to deliver keys and radios to security guards stationed at senior citizen residences. He forgot that he had the handgun with him, but locked it in his glove compartment before exiting the vehicle. Defendant did not have a New Jersey handgun permit. He was arrested and was charged with unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b) and possession of hollow point bullets in violation of N.J.S.A. 2C:39-9(f)(1).

Defendant applied to PTI and was accepted into the program by the Hudson County Criminal Division Manager. Notwithstanding, the Hudson County prosecutor rejected defendant's PTI application and defendant appealed the rejection to the Law Division.

Defendant presented compelling reasons for admission into the program. Judge Lourdes I. Santiago overruled the prosecutor's rejection and permitted defendant's admission into PTI. The trial court found that the prosecutor committed a clear error of judgment by not admitting defendant into PTI. By not consenting to admission, the prosecutor's decision could not have reasonably been reached after a proper weighing of all the relevant factors following the criminal division's approval of admission into PTI. See State v. Brooks, 175 N.J. 215, 225 (2002); State v. Bender, 80 N.J. 84, 93 (1979).

On appeal, the prosecutor raises the following argument for our consideration:

THE TRIAL COURT ERRED IN ADMITTING DEFENDANT INTO THE PRETRIAL INTERVENTION PROGRAM OVER THE STATE'S OBJECTION.

After consideration of the briefs submitted in light of the record, we reject the prosecutor's argument and affirm substantially for the reasons expressed in Judge Santiago's comprehensive letter opinion of June 25, 2010.