STATE OF NEW JERSEY v. KEVIN FRANCO (2017)

Defendant Kevin Franco appeals from an order of the Law Division denying his admission to the Pretrial Intervention Program (PTI). As we conclude the appellate record is inadequate for purpose of our review, we remand to the Law Division. We add only the following.

Franco was indicted by a Hudson County Grand Jury on second-degree attempting to disarm a police officer, N.J.S.A. 2C:12-11(a) (counts one and three), and third-degree resisting arrest by physical force, N.J.S.A. 2C:29-2(a) (count two). Pursuant to a negotiated plea agreement, Franco pled guilty to the resisting charge in exchange for which, the State dismissed the two second-degree charges. The agreement also permitted Franco to apply to PTI.

Upon Franco's application, the criminal division manager recommended admission to PTI predicated upon an individualized assessment of Franco's eligibility. R. 3:28(h). Without submitting the required individualized assessment, the prosecutor noted an objection by referencing a prior denial in its reply brief on Franco's PTI appeal. See State v. Roseman, 221 N.J. 611, 621-22 (2015).

We criticized this practice in State v. Rizzitello, 447 N.J. Super. 301, 311 (App. Div. 2016). In Rizzitello, we held the prosecutor's failure “to perform this important, legally required evaluation” was “unacceptable.” Ibid. Here, as in Rizzitello, the method of objection employed by the prosecutor precludes meaningful appellate review.

Similarly, we are hampered in our review by the lack of a transcript of the plea proceedings. While Franco was permitted to apply to PTI pursuant to the plea, we are uninformed whether, for purpose of eligibility, the dismissed second-degree charges could still be considered as a factor in Franco's admission.

As such, we are constrained to remand to the Law Division for a de novo hearing after compliance by the prosecutor with the individualized assessment mandate of Rule 3:28(h). In reaching our decision, we express no view regarding the remand proceeding's outcome.

Remanded. We do not retain jurisdiction.

PER CURIAM