Opinion
DOCKET NO. A-5060-09T3
09-21-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEIDRA ANN BEWLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-03-0398.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On June 18, 2008, defendant Deidra Ann Bewley pled guilty to a single-count indictment charging her with third-degree theft, N.J.S.A. 2C:20-3(a). She was admitted to the Morris County Pre-trial Intervention program (PTI) and all further proceedings were postponed for a period of twelve months. Specific conditions imposed upon entry into PTI included the payment of fines and restitution at the rate of $50 per month and fifty hours of community service.
Defendant's failure to comply with these conditions resulted in administrative hearings on October 6, 2008, and April 29, 2009. At the latter, in an attempt to gain her compliance, the term of defendant's PTI supervision was extended for an additional twelve months.
In November 2009, the probation officer assigned to defendant's case recommended her termination from PTI based upon her failure to report since April, make any payments after July and perform her community service. An administrative hearing was set for December 7; defendant failed to appear, and an order of termination was issued. The judge issued a warrant for her arrest.
Defendant voluntarily surrendered on March 1, 2010 and
appeared before a different Law Division judge on March 5. Defense counsel sought an adjournment of defendant's sentence to present evidence why she failed to appear at the administrative hearing and comply with the conditions of PTI. Defense counsel explained the proffer as follows:
[Defendant] has provided me with proof that within a very short period of time, andDefense counsel sought additional time to file a motion for reconsideration of defendant's termination from PTI.
during all of this time where the violation occurred, she lost her mother, her father, her step-father, her uncle . . . and her cousin . . . . And I have proof of all of that as well.
I also have proof that she herself was admitted to the hospital during this same time period and was given discharge instructions in regards to her own hospitalization and she . . . now has the care of her 91-year old grandmother, who was also hospitalized and needs therapy.
The judge denied defendant's request, noting:
PTI had been extended on one . . . prior occasion.Defendant was sentenced to eighteen months probation, ordered to pay the balance of her restitution obligation, and appropriate financial penalties were imposed.
. . . .
[L]et me also . . . say that I am certainly sympathetic to Ms. Bewley's position. It is not easy to lose a loved one and Ms. Bewley was faced with numerous people in her family that she lost and the Court is . . . certainly sympathetic to that. . . . [S]he also had her gallbladder out . . . but her gallbladder was out after the Administrative Hearing was scheduled, almost a month later. And then . . . nearly another two months went by . . . and there was no reporting or phone calls or anything to advise as to her whereabouts. She certainly knew of the Administrative Hearing. So, for those reasons, I am going to deny the request . . . .
In a single point, defendant raises the following argument for our consideration:
THIS COURT SHOULD REMAND THE MATTER FOR A FULL PTI TERMINATION HEARING WHERE DEFENDANT IS GIVEN "THE OPPORTUNITY TO BE HEARD IN PERSON AND TO PRESENT WITNESSES AND DOCUMENTARY EVIDENCE." STATE V. FENTON, 221 N.J. SUPER. 16, 19 ([LAW DIV.] 1987)We have considered this argument in light of the record and applicable legal standards. We affirm.
N.J.S.A. 2C:43-13(e) provides:
Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of the participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.In State v. Devatt, 173 N.J. Super. 188, 195 (App. Div.), certif. denied, 84 N.J. 441 (1980), we remanded to the trial judge for reconsideration of the termination of the two defendants from the PTI program based upon their inability to make restitution payments. We held:
On remand the judges must determine whether the failure to comply with the condition for restitution within the time allowed under the circumstances which are shown to have existed supports the conclusion that termination of defendants' participation in the program is justified. The proof need not be established to any particular degree but must satisfy the judge in the exercise of sound discretion that the application to terminate is warranted. This requires a conscientious judgment which takes into account the particular circumstances of the individuals in deciding their fitness to continue within the diversionary program.
[Ibid. (emphasis added).]
In State v. Fenton, 221 N.J. Super. 16, 19-20 (Law Div. 1987), cited by defendant in her point heading, the judge relied extensively upon our holding in Devatt.
We conclude the judge did not abuse his discretion in denying defendant's request for an adjournment to file a motion for reconsideration of her termination from PTI. "New Jersey long has embraced the notion that '[a] motion for an adjournment is addressed to the discretion of the court, and its denial will not lead to reversal unless it appears from the record that the defendant suffered manifest wrong or injury.'" State v. Hayes, 205 N.J. 522, 537 (2011) (quoting State v. Doro, 103 N.J.L. 88, 93 (E. & A. 1926) (citations omitted)).
Here, defendant was not prejudiced in any way because defense counsel addressed all the relevant information that formed the basis of any motion to reconsider termination from PTI. It is clear from the colloquy presented above that the judge considered the arguments defendant would have raised regarding the merits of her termination from PTI as if the adjournment had actually been granted.
Had a formal motion been made and denied, we would review the judge's decision under an abuse of discretion standard. See Devatt, supra, 173 N.J. Super. at 195. We find no reason to disturb the conclusion that defendant's termination from PTI was appropriate.
Defendant's inability to comply with the conditions of the program has not been disputed, however, she never apprised her probation officer of the various circumstances in her personal life that she claims, well after the fact, led to her non-compliance. As the judge noted, defendant's initial failure to comply led to the extension of her supervision for an additional year.
Defendant was aware of the third, and final, administrative hearing that resulted in her termination, but she failed to attend or advise probation or the court of the reasons for her absence. And, as the judge observed, defendant's failure to contact the court continued for nearly three months before she surrendered on the outstanding bench warrant.
In State v. Pellegrino, 254 N.J. Super. 117, 120 (App. Div. 1992), we noted that "[t]here is no standard of excusable failure or requirement of willful failure in the PTI termination statute as in the probation revocation statute." Under the circumstances presented, defendant's termination from PTI was regrettable but did not result from the mistaken exercise of the court's discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION