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Wednesday, June 16, 2010

PTI- Criminal Law- State v. Rodriquez (A-5013-07T4)

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County,
Indictment No. 06-06-0258.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse,
Designated Counsel, on the brief).

Patrick Barnes, Hunterdon County J.
Prosecutor, attorney for respondent (Charles
Ouslander, First Assistant Prosecutor, on
the brief).

Defendant Angelo R. Rodriguez, Jr. appeals from an order
entered on October 22, 2007, terminating his participation in
the Pretrial Intervention Program (PTI), and the judgment of
conviction dated January 18, 2008. We affirm the order
terminating defendant's place in PTI but reverse the
judgment of conviction, and remand the matter to the trial court
to permit defendant to withdraw his plea.
The following procedural history and facts are pertinent to
our decision. Defendant was charged under Indictment No. 06-06-
258 with possession of a controlled dangerous substance (CDS)
with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A.
C:2-6(c) and N.J.S.A. 2C:35-5(b)(11) (count one); possession of
CDS, N.J.S.A. 2C:35-10(a)(3) and N.J.S.A. 2C:2-6(c) (count two);
obstructing the administration of the law, N.J.S.A. 2C:29-1
(count three); and resisting arrest, N.J.S.A. 2C:29-2(a)(2)
(count four). Defendant was also separately charged with
possession of drug paraphernalia, N.J.S.A. 2C:36-2; and
resisting arrest, N.J.S.A. 2C:29-2(a).

On November 2, 2006, defendant pled guilty to count one in
Indictment No. 06-06-258, "[i]n exchange" for the prosecutor's
agreement to allow defendant to apply for admission to PTI and
the dismissal of the other charges. At the plea hearing, the
assistant prosecutor stated that the PTI program would be:

for a term of one year with [fifty] hours of
community service, drug testing every week
for the first two months. If all negative
then every two weeks after that. If the

defendant is terminated from PTI he will be
sentenced to three years of probation, non-
custodial. Judge, just on that issue of the
drug testing. The drug testing will occur
through PTI but that will be random. What
the defendant will be required to do is
obtain the outside services . . . through
. . . [Somerset County's probation
department]. But he'll have to get
independent drug testing from whichever
agency is going to be approved by PTI. . . .
In addition there is no loss of license with
PTI if the defendant completes it. And the
municipal charges or the motor vehicle
violations will be remanded to Municipal
Court. So that is my understanding of the
plea agreement in its entirety.

The plea form stated, among other things, that if defendant were
terminated from PTI, he would be sentenced to three years of
On May 18, 2007, the trial court considered defendant's
application for admission to the PTI program. The court
questioned defendant concerning the program:

Q. Mr. Rodriguez, you have been recommended
the pretrial for participation in
intervention program and if you successfully
complete the program the charge or charges
will be dismissed. Do you understand that?

A. Yes.

Q. But to accomplish that you will have to
various program
comply with all the
conditions. I assume that those conditions
have been reviewed with you, is that

A. Yes.
Q. And any questions at this time?

A. No.

The court entered an order of postponement dated May 18,
2007, which deferred further proceedings in the case for twelve
months and authorized defendant's participation in PTI. The
second page of the order set forth the conditions for PTI
supervision. A check was placed alongside of the following
DURATION OF PTI TERM[.] Defendant signed the second page of the
order, beneath the following statement:

I have received a copy of the Special
Conditions of PTI Supervision which have
been read and explained to me. . . . I
understand the conditions of PTI Supervision
and that they apply to me, and I further
understand that failure to comply on my part
constitutes a violation of PTI Supervision
and may cause my termination from the
program and prosecution of the charges
against me.

By letter dated August 8, 2007, the Somerset County
probation officer Lorena DuQue (DuQue) informed defendant that a
to the court to terminate his recommendation would be made
participation in PTI because he failed to schedule a substance
the probation officer. The
abuse evaluation, as directed by
trial court conducted a hearing on the matter on October 22,


At the hearing, DuQue testified that, after the case was
transferred from Hunterdon County, defendant reported to her on
June 19, 2007. She went over defendant's "case plan" with him.
DuQue noted that, as stated on the order of postponement, the
special conditions for PTI required defendant to undergo a
substance abuse evaluation and follow the treatment

recommendations resulting from that evaluation.

DuQue stated that defendant "seemed to be a little
surprised" when she told him that he had to have a substance
abuse evaluation and follow the recommendations for treatment.
Defendant said that his attorney told him that he did not have

to go for treatment. DuQue gave defendant the names of two
agencies and told him to call one of them to set up an
appointment for an evaluation before their next meeting.
Defendant met with DuQue on July 3, 2007. He had not
scheduled a substance abuse evaluation. She told him he had to
make an appointment for the evaluation by the date of their next
scheduled meeting, July 24, 2007. Defendant did not appear on
that date because he was working overtime, and the meeting was
rescheduled for July 31, 2007. At the meeting on July 31,
defendant informed DuQue that he had not scheduled the substance
abuse evaluation. Defendant said that he was going to call his
attorney to discuss the matter.
DuQue testified that defendant "was pretty much in denial."
He said that he was not using drugs, and did not have time for
treatment because he had a full-time job. DuQue showed defendant
the court's order of postponement, which stated that he had to
submit to a substance abuse evaluation and any treatment
On August 8, 2007, DuQue issued the letter advising
defendant that an application would be made to the court to

terminate his participation in PTI. Defendant contacted DuQue on
August 21, 2007, and said that he would go for the substance
abuse evaluation. Defendant stated that he did not want to
return to court, but DuQue told him she intended to proceed with
the termination application.

Defendant went to Guided Life Structures (GLS) for an
evaluation on August 30, 2007. GLS thereafter reported to DuQue
that defendant had "displayed a great deal of denial" and did
not agree with the substance abuse evaluation. According to GLS,
defendant was "arrogant and defiant in his attitude." He refused
treatment and said it was a "waste of time[.]" GLS said that, if
defendant had agreed to treatment, it would have recommended
anger management; drug/alcohol group counseling sessions for a
minimum of ten weeks; and random drug and alcohol screens.

Defendant again reported to DuQue on September 4, 2007.
Defendant told DuQue that he had gone for the evaluation and
said that he did not know whether any treatment had been
recommended. DuQue told him that GLS had reported to her that
he had denied treatment. According to DuQue, defendant became
"agitated[.]" He indicated that he did not need treatment and
was going to seek another evaluation.

Defendant met again with DuQue on October 2, 2007. He said
that he had another evaluation performed by a counseling center
in Woodbridge. Defendant later provided DuQue with a copy of

the evaluation report by Rama Jiandani (Jiandani), in which
Jiandani stated that, based on the information that defendant
had provided to him, he had no reason to believe that defendant
was currently abusing substances. Jiandani suggested, however,
that defendant should be monitored weekly for substance abuse.
DuQue noted that Jiandani's evaluation was "just based on
[defendant's] answers."

Defendant also testified at the hearing. He said that there
had been a misunderstanding about the conditions of PTI. On
cross examination, he conceded that he signed the second page of
the order of postponement with the conditions for the PTI
program. He said, however, that he did not "really read" the
order before signing it. He stated that he "listened to what
[his] lawyer" told him about the order. According to defendant,
his attorney told him that he would be required to have drug
tests but did not mention treatment.

Defendant additionally testified that he did not have a
problem with the evaluation. He said that he was going to get
the evaluation but spoke to his lawyer and asked his advice.
The attorney told him that he was not required to have the
evaluation. Defendant acknowledged that DuQue told him that the
court's order required the evaluation; however, after DuQue
issued the termination letter, the attorney told him that he had
to have the evaluation.

Defendant testified that he went to GLS for the evaluation. Defendant acknowledged that he disagreed with GLS's assessment. He stated that the reason why he refused treatment was because
his attorney told him that he did not have to go through with
it. He denied telling GLS that he did not feel that he needed
treatment. Defendant said that he was not satisfied with the
manner in which GLS had evaluated him.

On re-direct, defendant stated that he did not agree with
GLS's treatment recommendations because it was "hard" for him
"to take off work" for the time required by the treatment. He
asserted, however, that he would make the time for treatment, if
the court agreed to let him continue in the PTI program.
Defendant testified that it was very important for him to avoid
a criminal conviction because, if he were terminated from PTI,
"the rest of [his] life will be really down the drain."
The court placed its decision on the record. The court
determined that defendant's participation in PTI should be
terminated. The court found that defendant was not a credible
witness. The court also found that the there was a "clear
requirement that [defendant] undergo a substance abuse
evaluation and follow any recommendations."

The court additionally stated that defendant had been given
multiple opportunities to comply with that requirement but he
failed to comply and acted in an arrogant, defiant and negative
manner. The court found that defendant had determined that the
treatment program was "a waste of time[,]" and said that

defendant was not someone who would benefit from the PTI
program. The court noted that, while defendant ultimately had a
substance abuse evaluation, he only did so "grudgingly . . . and
after much prodding[.]"

In addition, the court stated that, after he was
dissatisfied with the result, defendant had another evaluation
with the hope that there would be "a different result." The
court concluded that defendant's participation in PTI should be
terminated because of his unwillingness to comply with the
directions of the probation officer and his attitude of
resistance. The court entered an order dated October 22, 2007,
memorializing its decision.

Defendant was sentenced on January 18, 2008. The court
found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk
that defendant will commit another offense); and nine, N.J.S.A.
2C:44-1(a)(9) (need to deter defendant and others from violating
the law). The court also found mitigating factors six, N.J.S.A.
2C:44-1(b)(6) (defendant will participate in a community service
program); and ten, N.J.S.A. 2C:44-1(b)(10) (defendant is likely
to respond affirmatively to probationary treatment). The court
sentenced defendant to three years of probation; and ordered
defendant to submit to drug screens at specified intervals,
perform community service, and pay various fines and penalties.
Defendant filed an appeal from the judgment of conviction
dated January 18, 2008. On March 31, 2009, the appeal was heard

on our excessive sentencing calendar. We entered an order
affirming the sentence but transferred the portion of the appeal
relating to the defendant's termination from PTI to the plenary


Defendant first argues that the trial court abused its
discretion by terminating his participation in PTI. Defendant
contends that a substance abuse evaluation and treatment were
not included in the PTI program requirements that were set forth
on the record when he entered his plea. He maintains that he
fulfilled all of the "legitimate conditions" of PTI, including
the performance of community service and submission to drug
tests. Defendant contends that he was wrongly terminated from
PTI for non-compliance with conditions that were never supposed
to have been imposed in the first place. We disagree with these

We note initially that we must defer to the findings of the
trial court when those findings "'could reasonably have been
reached on sufficient credible evidence present in the record.'"
State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)). Deference to the trial
court's factual findings is especially appropriate, as in this
case, when the court's findings were "'substantially
influenced'" by the court's "'opportunity to hear and see the

witnesses and to have the "feel" of the case, which a reviewing
court cannot enjoy.'" Ibid. (quoting Johnson, supra,
42 N.J. at 161).

Here, the trial court found that a substance abuse
evaluation and compliance with treatment recommendations were
requirements of the PTI program. Although those requirements
were not clearly spelled out on the record when defendant
entered his plea, defendant implicitly agreed to comply with all
PTI program requirements when he chose to seek admission to that
program. Moreover, by signing the court's order of postponement,
defendant acknowledged that a substance abuse evaluation and
treatment were PTI program requirements and he was required to
comply with them.

As we stated previously, defendant testified that he did
not read the court's order of postponement before he signed it.
Defendant asserted that his attorney did not explain that he was
required to have a substance abuse evaluation and follow the
treatment recommendations resulting from the evaluation. The
trial court found, however, that defendant's testimony was not
credible. We are satisfied that there is sufficient credible
evidence in the record to support the court's determination that
a substance abuse evaluation and treatment were PTI conditions
and defendant was required to comply with those conditions when
he was admitted to the program.
We are also satisfied that there is sufficient credible
evidence in the record to support the trial court's finding that
defendant failed to comply with the conditions of the PTI
program. It is undisputed that defendant initially refused to
have the substance abuse evaluation, despite clear directions
from the probation officer that he do so. Defendant had the
first evaluation only after DuQue informed him that she would
make an application to the court to terminate his participation
in the PTI program. The testimony at the hearing established
that GLS had recommended treatment and defendant refused to
comply with that recommendation. Although defendant had Jiandani
perform another substance abuse evaluation, and Jiandani did not
conclude that defendant required treatment, the trial court
properly noted that the results of Jiandani's evaluation were
questionable because it was unclear what information defendant
had provided to Jiandani.

In any event, the record established that defendant
initially failed to have a substance abuse evaluation despite
several directives from his probation officer that he do so. The
record also established that although defendant was eventually
evaluated by GLS, he refused to comply with GLS's treatment
recommendations. We are convinced that, under these
circumstances, the court did not abuse its discretion by
terminating defendant's participation in PTI.
Accordingly, we affirm the trial court's order of October
22, 2007, terminating defendant's participation in the PTI


Defendant also argues that the State violated the rules
governing PTI admission when it required him to enter a guilty
Rule 3:28, Guideline 4, provides in pertinent plea. We agree.
part that, "[e]nrollment in PTI programs should be conditioned
upon neither informal admission nor entry of a plea of guilty."
"As the language of the Guideline makes clear, prosecutors are
forewarned not to condition PTI enrollment upon admissions of
guilt." State v. Maddocks, 80 N.J. 98, 106 (1979).

Here, the State erred by requiring defendant to plead
guilty to count three of Indictment No. 06-06-258, "[i]n
exchange" for the prosecutor's agreement to allow defendant to
seek admission to PTI. In our judgment, defendant should not be
bound to a plea entered into contravention of the PTI
guidelines. Accordingly, the judgment of conviction must be
vacated and defendant should be given the opportunity to
withdraw the plea.

Affirmed in part, reversed in part and remanded to the
trial court for further proceedings in conformity with this