STATE OF NEW JERSEY v. MARK MEDAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0189-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK MEDAL,

Defendant-Appellant.

__________________________________________________

October 1, 2012

Submitted September 25, 2012 - Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-0937.

The Center for Legal Justice, attorneys for appellant (Karen F. DeSoto, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was indicted with others and charged with conspiracy to possess a controlled dangerous substance, N.J.S.A. 2C:5-2; N.J.S.A. 2C:35-10(a)(1). Negotiations between defense counsel at the time and the prosecutor resulted in an agreement by which defendant would enter the pretrial intervention (PTI) program on the conditions that he forfeit his position as a police officer and be permanently disqualified from any future law enforcement position.

The record reveals that a brief hearing occurred in the trial court on July 27, 2011. At that time, Judge Kevin G. Callahan questioned defendant and elicited testimony from him that demonstrated defendant freely and voluntarily entered into the agreement for entry into PTI that included, as defendant confirmed under oath, a condition that he would "no longer be a police officer" and "will be permanently disqualified from any [law enforcement] position." An order was entered at the same time -- consented to by defense counsel as to both its form and entry -- declaring that defendant would be admitted into the PTI program and that defendant "forfeits, effective July 27, 2011, his position as a Police Officer with the Jersey City Police Department and is permanently disqualified from holding any position in law enforcement."

Defendant then filed this appeal, arguing:

I. NO BASIS IN LAW EXISTS TO REQUIRE A PTI APPLICANT TO TERMINATE THEIR EMPLOYMENT AND ACTUALLY CONTRADICTS THE PUBLISHED PURPOSE AND INTENT OF THE PRE-TRIAL INTERVENTION PROGRAM WHEN THERE IS NO ALLOCUTION OF GUILT.

II. DEFENDANT-APPELLANT DID NOT VIOLATE N.J.S.A. 2C:51-2 AS HIS ACTIONS DID NOT TOUCH OR INVOLVE HIS OFFICE NOR HAS HE ADMITTED GUILT IN ANY CRIME.

III. THE PURPOSE OF PRETRIAL INTERVENTION IS REHABILITA[T]IVE NOT PUN[I]TIVE AND A PROSECUTOR MUST GIVE "APPROPRIATE" WEIGHT TO DEFENDANT'S STATUS.

IV. IT IS CLEAR ERROR FOR A PROSECUTOR TO CONDITION ADMISSION INTO THE PTI PROGRAM ON THE DEFENDANT'S RESIGNATION FROM HIS EMPLOYMENT AS A POLICE OFFICER.

V. THE PROSECUTOR ABUSED HIS DISCRETION WHEN THE PROSECUTOR LEGISLATED NEW LAW BY EXTENDING DISQUALIFICATION STATUTES TO PTI PROGRAM.

VI. THE PROSECUTOR ERRED WHEN HE FAILED TO FOLLOW THE PROPER PROCEDURE FOR ADMITTING DEFENDANT INTO PTI.

We do not reach the merit of these arguments. Instead, we dismiss the appeal because a judgment or order entered with the consent of the parties is not appealable. Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950); Infante v. Gottesman, 233 N.J. Super. 310, 318 (App. Div. 1989). To the extent defendant may still have the opportunity to attack the consent order in question -- an issue we need not decide -- he must first seek relief from that order in the trial court. See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 260-61 (2009).