STATE OF NEW JERSEY VS. BRIAN D. SOOYÂ (14-12-0675, SALEM COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
                          APPROVAL OF THE APPELLATE DIVISION
         This opinion shall not "constitute precedent or be binding upon any court."
          Although it is posted on the internet, this opinion is binding only on the
             parties in the case and its use in other cases is limited. R.1:36-3.
    
    
    
                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-3253-15T2
    
    
    STATE OF NEW JERSEY,
    
            Plaintiff-Respondent,
    
    v.
    
    BRIAN D. SOOY, a/k/a BJ,
    
         Defendant-Appellant.
    ___________________________
    
    
                  Submitted June 21, 2017 — Decided August 14, 2017
    
                  Before Judges Fuentes and Koblitz.
    
                  On appeal from Superior Court of New Jersey,
                  Law Division, Salem County, Indictment No. 14-
                  12-0675.
    
                  Joseph E. Krakora, Public Defender, attorney
                  for appellant (Alicia Hubbard, Assistant
                  Deputy Public Defender, of counsel and on the
                  brief).
    
                  John T. Lenahan, Salem County Prosecutor,
                  attorney for respondent (William G. Holmes,
                  Assistant Prosecutor, on the brief).
    
    
    PER CURIAM
           Defendant Brian D. Sooy appeals from the December 23, 2015
    
    denial of his application to the Pre-trial Intervention Program
    
    (PTI), Rule 3:28; N.J.S.A. 2C:43-12. A February 17, 2016 judgment
    
    of    conviction   resulted   from   his   guilty    plea   to    third-degree
    
    terroristic threats, N.J.S.A. 2C:12-3(a).           Rule 3:28(g) allows the
    
    appeal of rejection from PTI even after a guilty plea.                 Defendant
    
    was sentenced to probation for four years.           Because the record on
    
    appeal is insufficient for our review, we dismiss this appeal.
    
           Defendant was indicted in three counts for various crimes in
    
    connection    with   comments   he   posted    on   his   own    and   a    police
    
    department Facebook accounts threatening violence towards the
    
    police and a municipal court judge.           Although with the consent of
    
    both parties defendant was initially found incompetent to stand
    
    trial,1 months later he was deemed competent by a different judge
    
    after another court-ordered evaluation.
    
           On December 23, 2015, defense counsel put the following
    
    comments on the record regarding a potential plea agreement, which
    
    were agreed to by the State:
    
                the State offered Mr. Sooy, if we were not to
                do any of the [m]otions, the offer was
                probation, where the defense could argue for
                one-year probation, the State could argue for
                up to five years probation. If the [m]otions
    
    
    
    
    1
        We were not furnished with a transcript of this proceeding.
    
    
                                    2                                          A-3253-15T2
                were filed and unsuccessful, the State was
                going to offer four years probation.2
    
    Defendant nonetheless pursued an unsuccessful motion to dismiss
    
    the indictment.     He also appealed the denial of his admission to
    
    PTI.    Defense counsel stated at the beginning of the hearing that
    
    defendant was accepted by the PTI director.          Later in the hearing,
    
    the    prosecutor   stated   that   the   director   rejected   defendant's
    
    application. The court does not mention in its reasons the posture
    
    of the PTI director.
    
           Defendant raises the following issue on appeal:
    
                POINT I: THE TRIAL COURT ERRED IN FINDING THE
                STATE'S DENIAL OF DEFENDANT'S APPLICATION FOR
                PRE-TRIAL INTERVENTION WAS NOT A PATENT AND
                GROSS ABUSE OF DISCRETION.
    
           In defendant's appellate procedural history, he indicates
    
    again that he was accepted by the PTI director.          In its appellate
    
    brief, the State adopts the defense procedural history as written.
    
    We have not been provided with a copy of the PTI director's written
    
    
    
    
    2
      We note that a plea agreement to a specific agreed-upon, non-
    mandatory sentence is not permitted. State v. Hess, 
    207 N.J. 123
    ,
    151 (2011).   Defense counsel argued for one year of probation.
    The prosecutor stated that "this was a negotiated [p]lea
    [a]greement, in which both parties agreed to four years of
    probation. . . . This is the first time the State's been given any
    notice that the defendant is now requesting a lesser sentence.
    It's the State's position that the four years of probation was the
    negotiated [p]lea, and he should be sentenced to that today."
    Although the court did properly consider a lesser sentence before
    imposing four years of probation, we think it appropriate to point
    out the State's mistaken claim regarding "negotiated" sentences.
                                    3                                   A-3253-15T2
    decision.   See N.J.S.A. 2C:43-12(c) (requiring that all decisions
    
    by directors or prosecutors be written); see also State v. Nwobu,
    
    
    139 N.J. 236
    , 246 (1995).   The prosecutor states that he filed a
    
    written objection to defendant's admission to PTI by way of a
    
    "brief" dated January 21, 2015.    We have not been provided with
    
    this document either.    It is appellant's obligation to include
    
    these documents.   See R. 2:6-1(a)(1)(I) (stating the appendix must
    
    contain "such other parts of the record, excluding the stenographic
    
    transcript, as are essential to the proper consideration of the
    
    issues").
    
         Without the written decisions from the PTI director and
    
    prosecutor, we cannot properly evaluate the judge's decision that
    
    defendant's rejection from the PTI program was not an abuse of
    
    prosecutorial discretion.   We therefore dismiss this appeal.
    
         Dismissed.
    
    
    
    
                                 4                              A-3253-15T2
    

Document Info

DocketNumber: A-3253-15T2

Filed Date: 8/14/2017

Modified Date: 8/14/2017