581 A.2d 1333 (N.J.Super.A.D. 1990), State v. Davis

Citation:581 A.2d 1333, 244 N.J.Super. 180
Opinion Judge:[10] Shebell
Party Name:STATE of New Jersey, Plaintiff-Respondent, v. Robert DAVIS, Defendant-Appellant.
Attorney:[7] Dennis T. Kearney argued the cause for appellant (Pitney, Hardin, Kipp & Szuch, attorneys; Dennis T. Kearney and Martin J. Tuohy, on the brief; J. Michael Nolan, Jr., Martin J. Tuohy, and Amy J. Wolin, on the reply brief).
Case Date:October 25, 1990
Court:Superior Court of New Jersey
 
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Page 1333

581 A.2d 1333 (N.J.Super.A.D. 1990)

244 N.J.Super. 180

STATE of New Jersey, Plaintiff-Respondent,

v.

Robert DAVIS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

October 25, 1990

Argued Oct. 3, 1990.

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[244 N.J.Super. 182] Dennis T. Kearney argued the cause for defendant-appellant (Pitney, Hardin, Kipp & Szuch, attorneys; Dennis T. Kearney and Martin J. Tuohy, on the brief; J. Michael Nolan, Jr., Martin J. Tuohy, and Amy J. Wolin, Morristown, on the reply brief).

Robin R. Parker, Deputy Atty. Gen., argued the cause for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Steven E. Lessick, Trenton, of counsel and on the brief).

Before Judges GAULKIN, SHEBELL and SKILLMAN.

The opinion of the court is delivered by

SHEBELL, J.A.D.

Defendant, Robert Davis, appeals the denial of his application for Pretrial Intervention (PTI), the denial of his motions seeking dismissal of the charge of a violation of N.J.S.A. 2C:17-6b [244 N.J.Super. 183] on the grounds that the statute is unconstitutional, his jury convictions, and the denial of his several motions for a new trial.

On August 11, 1986, a State Grand Jury indicted defendant on one count of third-degree

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conspiracy ( N.J.S.A. 2C:5-2); three counts of third-degree receiving stolen property valued in excess of $500 ( N.J.S.A. 2C:20-7(a) and N.J.S.A. 2C:2-6); three counts of third-degree possession of a motor vehicle valued in excess of $500 with removed or altered identification marks ( N.J.S.A. 2C:17-6(b)), and one count of fourth degree unlawful purchase of a firearm ( N.J.S.A. 2C:39-10(a)).

Following his indictment defendant applied for entry into the Cape May County PTI program. On September 30, 1986, the Cape May County PTI Coordinator forwarded to the defendant a preliminary rejection of his application. The preliminary rejection notice outlined the background of defendant's case and concluded that due to "the on-going nature of the offense this case falls within the exclusionary intent of Guideline 3i(1)[,] 'part of a continuing business or enterprise.' " On October 8, 1986, defendant's attorney wrote to the PTI Coordinator requesting reconsideration of the defendant's application, or, alternatively, that the Coordinator "at least table it" until the defendant received discovery from the State. Defendant's attorney urged the PTI Coordinator to consult the Attorney General's Office regarding the disposition of defendant's PTI application. On December 2, 1986, the PTI Coordinator sent a letter to defendant's attorney advising him that the Coordinator spoke with the Deputy Attorney General (DAG) in charge of defendant's case who informed the Coordinator that the Attorney General's Office decided to reject defendant.

Notwithstanding the rejection notices from the PTI Coordinator, defendant's attorney wrote to the DAG in charge of defendant's case to once again request that defendant be permitted to enter the PTI program. Defendant's attorney also suggested that defendant forfeit any interest he had in the alleged [244 N.J.Super. 184] stolen vehicles and compensate those parties that suffered a loss as a result of the vehicles' theft.

On June 3, 1987, the DAG wrote to the Cape May County PTI Coordinator to advise her that the Attorney General's Office reconsidered defendant's PTI application and was "now prepared to admit Mr. Davis, subject to the conditions set forth herein, into the program." Specifically, the State enumerated the following conditions for admission:

The State's consent to admission of Mr. Davis into Pre-Trial Intervention is conditioned upon his forfeiting any claim he might have to a 1985 Chevrolet rollback towtruck, identified as V-48 in the police reports and his indemnifying the appropriate parties for those items of stolen property found on a 1976 Chevrolet towtruck, V-49, and a 1981 Chevrolet towtruck, V-50. He must also forfeit any interest he might have in a .22 caliber Magnum Ruger revolver found during the execution of a search warrant at the defendant's place of business.

With regard to the earlier reasons stated by the Coordinator for rejection, the DAG stated that "the evidence does not support the inference that Mr. Davis was part of organized criminal activity or a continuing criminal business or enterprise of which he can demonstrably be said to have had knowledge." On June 18, 1987, the same DAG wrote to the Cape May PTI Coordinator, enclosed a copy of a Camden County indictment, and advised her that it was his intention "that P.T.I. for Mr. Davis include this indictment as well." The Camden County indictment involved an apparently unrelated offense.

On June 26, 1987, the county PTI Coordinator signed an "Eligibility Report-Rule 3:28" which stated:

that in accordance with the policy of the court, the defendant is eligible for participation and it is recommended that all further proceedings be adjourned for a period of six months and that the defendant be continued in the Pre-Trial Intervention program subject to the conditions set forth in the Participation Agreement.

Subsequently, defendant, his attorney, and PTI Coordinator signed a notice of first postponement of the proceedings. 1

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[244 N.J.Super. 185] Defendant signed the participation agreement referred to in the Eligibility Report. It included the following special conditions:

5. To report as directed to Mr. John Schofield at the Cape May County Probation department--PHONE: (609) 465-1121 for the purpose of counselling and case supervision.

6. Defendant agrees to forfeit any claim to the 1985 Chevrolet rollback tow truck.

7. Defendant agrees to indemnify the appropriate parties for the stolen engines found in his trucks.

Three and a half months later, on October 14, 1987, the Chief of the Litigation Section of the Criminal Division of the Attorney General's Office wrote to the Cape May County Criminal Case Management Office to inform it that the Attorney General's Office was reversing its position regarding defendant's PTI application. In pertinent part the letter stated:

Since the departure of Deputy Attorney General Leo Cox, these matters have been transferred to Deputy Attorney General Raymond S. Gurak for review and completion. Recently, D.A.G. Gurak has informed me that Mr. Davis' receiving stolen property offenses are significant offenses and thus his entry into P.T.I. is unwarranted. I have discussed these cases with D.A.G. Gurak and have concluded that the State should oppose P.T.I. for Mr. Davis and proceed with the prosecution of his indictments. Accordingly, please restore these cases to the active calendar as soon as possible.

Following the State's change in position, on December 15, 1987, defendant moved before the Law Division to compel his admission in the PTI program.

The Law Division conducted a hearing on December 15, 1987. After oral arguments, the court concluded that defendant's application had been rejected as of December 1986 and, therefore, denied defendant's motion to compel admission into PTI. The court reasoned that all negotiations which occurred between defendant's attorney, the PTI Coordinator, and the DAG formerly in-charge of defendant's case, after the initial December 1986 rejection, were out of time and beyond their authority. The judge stated:

I am not able to compel admission of the defendant over the Attorney General's objection based upon a couple of factors. First, as I've indicated, I think the application is substantially out of time. Second, even if under the authorize [sic ] authority of the rules, which I have, I relax the time in the interest of [244 N.J.Super. 186] justice, I do not perceive on the facts that I have before me the requisite showing of patent and gross abuse of the discretion in a substantive fashion.

On June 1, 1988, the Cape May County Grand Jury issued a superseding indictment against the defendant. The new indictment charged defendant with three counts of third-degree receiving stolen property in violation of N.J.S.A. 2C:20-7 and one count of third-degree possession of a motor vehicle or a part thereof valued in excess of $500 with removed or altered identification number or mark in violation of N.J.S.A. 2C:17-6(b). It further charged, as an element of N.J.S.A. 2C:17-6b, that defendant failed to file a verified report within ten days of receipt of the vehicle informing the Director of the Division of Motor Vehicles of altered or missing identity numbers or marks.

On July 20, 1988, the DAG who had taken over control of defendant's case sent a letter to the Cape May County Criminal Case Management Office advising that although the pretrial judge "indicated that defendant would be allowed to reapply for PTI in the interest of fairness, given his superseding indictment.... [T]his substitute indictment does not change the posture of the case at all...." The letter also explained the State's opposition to any renewed PTI application by defendant. The DAG forwarded a copy of this letter to defendant's attorney.

On August 3, 1988, the PTI Coordinator, over the objections of the State, recommended the approval of defendant's renewed PTI application citing "the defendant's amenability and lack of any prior

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criminal record...." In...

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