STATE OF NEW JERSEY v. LEON JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4809-04T44809-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEON JACKSON,

Defendant-Appellant.

 

Submitted January 25, 2006 - Decided February 7, 2006

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 01-01-0127-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Barbara A. Hedeen, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant Leon Jackson pleaded guilty to third-degree possession of cocaine on January 13, 2003, he was admitted into the pretrial intervention (PTI) program. He appeals from an order of the Law Division that terminated his participation in that program and sentenced him to one year probation in accordance with his prior guilty plea. We affirm.

By letter of April 11, 2003, defendant was informed that he was approved for participation in the PTI program effective April 8, 2003, subject to certain terms and conditions. Among those conditions was that he report to his pretrial counselor at such times and places as directed, perform community service, pay court-ordered fines and surcharges, and submit to random urine screenings.

In July 2004, defendant appeared before the court for failure to perform the community service component of his program; the court vacated that condition and defendant continued in the program.

On February 8, 2005, defendant was informed by a probation officer that termination from the program was being requested for the following reasons:

Defendant has failed to report to PTI counselor as directed. Specifically on 12/21/04 & 2/3/05[.] The last date in which defendant report[ed] was on 11/30/04. Defendant has failed to submit to random urine screens as a result of his non-reporting. Defendant has failed to pay court ordered fines. At the time of enrollment the defendant was ordered to pay $35.00 per month. He did not comply with that agreement. On 10/25/04, the defendant was then given a new payment plan of $70 per month thru CEP Court. The second agreement wiped out defendant's arrears [and] afforded him an opportunity to start over with his payments. Since that time defendant has only made one payment of $72.00 on 12/1/04. He is now in arrears again for $210.00

Recommendation: PTI case to be terminated and returned to normal course of prosecution. This defendant keeps falling short with the conditions of PTI despite the fact that he has been given several opportunities to comply. Not paying monthly on his fines is one thing, but now coupled with not reporting and not reporting for urine screens leaves this defendant questionable as to his seriousness of completing PTI successfully.

On March 18, 2005, the Law Division judge terminated defendant's participation in the PTI program on the grounds that defendant failed to report when he was directed to, which concomitantly resulted in his failure to provide urine screening, a condition of his continuation in the program.

On appeal, defendant makes the following legal argument:

POINT ONE

BECAUSE DEFENDANT HAD PAID A SUBSTANTIAL AMOUNT OF HIS FINE AND ASSESSMENTS, HAD NOT BEEN ARRESTED AND HAD REMAINED DRUG-FREE DURING THE TWO YEARS OF PTI SUPERVISION, IT WAS ERROR FOR THE TRIAL JUDGE TO TERMINATE HIM FROM PTI FOR MISSING TWO REPORTING SESSIONS.

We have reviewed defendant's arguments in light of the record and the controlling law. We conclude that his arguments are without merit.

If a PTI participant violates the conditions of supervisory treatment, the court may dismiss the participant from the program. N.J.S.A. 2C:43-13e. Upon dismissal from the program, the charges against the participant "may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced." Ibid. Whether to terminate a participant from the PTI program lies within the discretion of the court. State v. Devatt, 173 N.J. Super. 188, 195 (App. Div. 1980); State v. Lebbing, 158 N.J. Super. 209, 217-18 (Law Div. 1978).

Defendant was convicted of a drug offense. He failed to report to probation as directed and, consequently, he failed to submit to urine screening, which, following his drug conviction, was a key condition of his PTI program. Judge Garofolo did not abuse his discretion in terminating defendant from the program for this reason. We affirm substantially for the reasons the judge gave in his oral decision on March 18, 2005.

 
Affirmed.

(continued)

(continued)

4

A-4809-04T4

February 7, 2006