RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1649-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOMYKO A. RAMOS,
Defendant-Appellant.
________________________
Submitted June 1, 2022 – Decided July 12, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 18-10-0823.
Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary Markarian, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Leandra Cilindrello, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jomyko A. Ramos appeals from the January 7, 2020 order of
the Law Division terminating his enrollment in the pretrial intervention (PTI)
program and reactivating a criminal charge to which he previously pled guilty.
We affirm.
I.
In 2019, defendant pled guilty to fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-2(c)(1) and 2C:14-3(b), in exchange for the State's
recommendation, with the victim's consent, that he enter PTI for twenty-four
months. He admitted to having engaged in intercourse with the victim, an
acquaintance, without her consent.
The court sentenced defendant to the recommended term of PTI. The
conditions of PTI supervision included that defendant was to: (1) complete
domestic violence counseling; (2) undergo a substance abuse evaluation and
follow the resulting recommendation; and (3) submit to random urine
monitoring to ensure that he refrained from using illegal substances. The
substance abuse conditions arose from defendant's admitted daily use of
marijuana.
Defendant began PTI supervision on April 12, 2019. One month later, he
failed to report to probation. He offered no explanation for the missed
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appointment. A week after that, he failed to appear for his substance abuse
evaluation. He later claimed not to have received the scheduling notice mailed
to him. On August 14, 2019, he again failed to report to probation. He offered
no excuse for the missed appointment. On September 5, 2019, defendant failed
to appear for his rescheduled substance abuse evaluation. He again claimed not
to have received the scheduling notice mailed to him. Finally, defendant failed
to enroll in domestic violence counseling and admitted to marijuana use on four
occasions.
On September 11, 2019, a special probation officer (SPO) filed a violation
of PTI setting forth these transgressions. He recommended defendant be
terminated from PTI.
On October 15, 2019, the SPO sent a letter to the court retracting his
termination recommendation and requesting defendant be continued on PTI,
subject to completing domestic violence counseling and submitting to a
substance abuse evaluation. The SPO stated that after issuance of the violation
defendant came into compliance with the conditions of PTI by enrolling in
domestic violence counseling and providing a negative random urine sample.
Prior to making a decision on the SPO's recommendation, the court gave
defendant the opportunity to have a substance abuse evaluation. He was given
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written notice, which he signed in the presence of the court, that the evaluation
was scheduled for October 22, 2019 at 9:00 a.m.
Defendant appeared on October 22, 2019, at 10:15 a.m., more than an hour
late for his appointment. Because the evaluator had left to perform an evaluation
scheduled for another location, defendant was not evaluated.
The trial court subsequently held a PTI termination hearing. The SPO, in
effect, repeated the allegations in the September 11, 2019 violation report. With
respect to defendant's failure to appear on time for the October 22, 2019
evaluation, the SPO testified that defendant told him he did not bring the written
notice with him and mistakenly believed the appointment was scheduled for
10:00 a.m. The SPO acknowledged that defendant appeared late even under his
mistaken belief with respect to the time of the appointment.
The SPO also testified defendant did not have insurance to cover the cost
of domestic violence counseling and suggested financial uncertainty may have
delayed his enrollment in counseling. The SPO testified that defendant lives
with his parents, works intermittently as a freelance computer repair technician,
and did not attempt to obtain insurance or a full-time position to cover the cost
of counseling. The SPO explained:
It was five months that I had been trying to get
[defendant] to act upon what to do. I know there [were]
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numerous conversations that we did have at our report
dates of the importance of getting into the program
especially . . . we talked about the timeline of the
program, how long it normally takes, how much time
he had remaining on his term of PTI and trying to
solidify how long the program would take, which is
normally a [twenty-six] week program, approximately
six months, and then how long he had remining on his
term of supervision. By the time the violation was
filed, there [were] already five months gone, so in those
five months we had numerous conversations of, you
know, we got to get on this, we got to get going,
because there's sometimes a hesitation to start with the
program because they want to clear all of financial
barriers and such, so, yes, the violation was filed and
then [defendant] entered [domestic violence
counseling].
According to the SPO, defendant obtained $750 to cover the cost of the
counseling from a family member after issuance of the written violation. He
acknowledged defendant had complied with the counseling since his enrollment.
In response to questions posed by the court, the SPO opined with respect
to defendant's efforts to obtain health insurance or the funds to enroll in domestic
violence counseling as follows: "I think he was trying, but he wasn't trying hard
enough. He was doing just enough to skirt by . . . ." He continued, "I don't think
he took the overall big picture of PTI . . . the opportunity afforded to him by the
[c]ourt . . . fully seriously. . . . [W]e had numerous discussions about this, about
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what this could lead to if he kept on the same path." The SPO also testified that
he believed defendant had no empathy for the victim.
The SPO testified that the written notices of defendant's substance abuse
evaluation appointments were sent to defendant's home address and that
defendant had not changed his residence. The September 11, 2019 violation,
the SPO testified, was sent to defendant by registered mail, which he failed to
pick up at the post office.
An employee of the judiciary testified that she prepares written notices of
substance abuse evaluation appointments for participants in the PTI program.
Those notices are placed in a bin to be picked up by another employee
responsible for mailing the notices. She testified that although she sometimes
receives notices that are returned as undeliverable by the postal service, the
notices she prepared for defendant were not returned to her.
On cross-examination, the SPO acknowledged defendant missed only two
appointments to report to probation and the missed appointments were not in a
row. He also agreed defendant had not missed an appointment since issuance of
the written violation.
The Assistant Prosecutor informed the court that the victim had been
consulted and was of the opinion that defendant's participation in PTI should be
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terminated. She noted that the victim had expressed the extent to which the
crime had negatively affected her life and her belief that defendant had been
given a second chance, of which he failed to take advantage, when enrolled in
PTI with her consent. Defendant did not testify at the hearing.
Judge Marilyn C. Clark issued an oral opinion terminating defendant's
enrollment in PTI. Having determined the witnesses to be credible, Judge Clark
found that defendant received the two notices of his substance abuse evaluation
appointments and disregarded them. She also found that defendant did not
testify because he would have been compelled to admit he received the notices
or face a perjury charge. The judge also found defendant's claim to not have
known the time of the third evaluation appointment to lack credibility, given
that he signed the written notice that included the date and time of the
appointment. In addition, the judge noted defendant offered no excuse for his
missed reports to probation.
Judge Clark found that defendant failed to take his obligations under PTI
seriously. She explained,
I am absolutely mindful that it is sometimes, perhaps
often, difficult for people to get insurance, but my firm
conclusion here is that [defendant] has made virtually
no efforts to find consistent gainful employment or to
obtain insurance. He is now [twenty-seven] years old
with a high school diploma and post-graduate
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certificates in the area of computers. In my mind there
is no valid reason why he has not been gainfully
employed except for lack of effort and I think,
notwithstanding his recent couple of negative tests, the
substance abuse issue, which has strongly affected his
functioning for a long time.
The judge noted testimony from the SPO that shortly after entering PTI
defendant stated his intention to move to Oregon or Michigan, without any
specific employment or other plans in place. The judge found that, "[t]his, right
in the beginning, indicates to me, along with all the other evidence, little to no
interest in PTI from the beginning." The judge also found that she "fully share s"
the SPO's view that defendant lacked empathy for the victim of his criminal
sexual act, which she considered significant to her analysis.
Having "strongly conclude[d] that [defendant] had no good answer for any
of the allegations, which occurred over many months," the judge terminated
defendant from PTI. The judge acknowledged defendant had "made some effort
since the violation[s,]" but found that he did "too little too late[,]" particularly
given his failure to appear at the third substance abuse evaluation appointment.
A January 7, 2020 order terminates defendant's enrollment in PTI and
reactivates the charges against him.1
1
The court later sentenced defendant to a sixty-day term in the county jail and
an eighteen-month period of probation. Defendant's sentence is not before us.
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This appeal followed. Defendant makes the following argument.
THE COURT ERRED IN TERMINATING RAMOS
FROM PTI WITHOUT MAKING ANY FINDING AS
TO WHETHER HE REMAINED A SUITABLE
CANDIDATE FOR PTI, DESPITE TESTIMONY
FROM HIS PROBATION OFFICER THAT HE
WOULD SUCCEED IF CONTINUED IN PTI.
II.
Termination from PTI is governed by N.J.S.A. 2C:43-13(e), which
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.
"[T]he conditional liberty at stake in [PTI] termination proceedings is
closely analogous to that involved in probation or parole revocation
applications." State v. Devatt, 173 N.J. Super. 188, 194 (App. Div. 1980).
"[B]efore termination may be ordered, minimum due process requires the State
to afford defendants an opportunity to be confronted with evidence in support
of or to present evidence against the conclusion that mere noncompliance with
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a condition justifies withdrawal of the diversionary privilege." Ibid. Failure to
comply with a condition of PTI is insufficient, standing alone, to warrant
termination. The State must establish that defendant's failure or refusal to
cooperate with the conditions of the program was done in "such a wil[l]ful and
knowing manner as to have forfeited their right to further participation." Ibid.
An "honest and unintentional" violation of a condition will not support revival
of the criminal process against a defendant. Ibid.
In addition, whether termination is warranted "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." Id. at 195. "This
requires a conscientious judgment which takes into account the particular
circumstances of the individuals in deciding their fitness to continue with in the
diversionary program." Ibid.
It is undisputed that defendant was provided a hearing that comports with
Devatt. In addition, there can be no serious doubt that the record contains
sufficient evidence to support Judge Clark's conclusion that defendant willfully
and knowingly violated the conditions of PTI by failing to report to probation
on two occasions and consuming marijuana. Our review of the record also
revealed sufficient support for the judge's finding that defendant received the
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notices for his first two substance abuse evaluations and willfully failed to
appear for those appointments. We also find support for the trial court's
conclusion that defendant offered no legitimate explanation for arriving at his
third evaluation appointment more than an hour late.
There is sufficient support in the record for Judge Clark's conclusion that
defendant willfully failed to secure insurance or independent funding during a
five-month period to enroll in domestic violence counseling. The rapidity with
which defendant raised the funds needed to enroll in the counseling once he
received the written violation is a telling indication of defendant's previous
lackluster efforts to comply with this important PTI condition.
We are not persuaded by defendant's argument Judge Clark erred by
allowing the victim to, in effect, determine whether defendant should be
continued on PTI. The judge more than once acknowledged that the victim's
opinion was not binding and the judge would determine whether termination of
PTI was warranted. We see no error in the court considering that the victim,
who had expressed the long-lasting harm she suffered as a result of defendant's
acts, and who originally agreed to his admission to PTI, viewed defendant's
behavior as a failure to take advantage of the opportunity afforded to him to
avoid a criminal record.
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While we agree with defendant's observation that Judge Clark did not
expressly state that she found that defendant was not fit to continue in PTI, it is
evident from the record that the judge reached that conclusion after carefully
considering the circumstances of defendant's multiple violations. Judge Clark,
who presided when defendant entered his plea and was familiar with the
underlying negotiations that ultimately resulted in the State agreeing to
defendant's admission to PTI, carefully considered the testimony adduced at the
termination hearing. We cannot conclude that she mistakenly exercised her
discretion when she determined that termination of PTI was warranted.
We have carefully considered defendant's remaining arguments and
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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