The defendants in this matter were passengers in an automobile stopped on the New Jersey Turnpike and found to be carrying 85 pounds of marijuana. The vehicle did not belong to them. They have been indicted for possession of C.D.S. and for possession with intent to distribute C.D.S. They claim innocence, saying they knew nothing about the marijuana. They applied for admission to the PTI Program and have had their application denied by the Director, a denial which the Prosecutor supports. The denial has been appealed to this court.
The principal objection to the admission of the Paynes into the program is the conclusion of the Director and the Prosecutor that they were involved in what is referred to in R. 3:28, Guideline 3(i), as "organized criminal activity" or "a continuing criminal business or enterprise." The guideline provides, that if such is the case, "the defendant's application should be generally rejected." It also provides that the applicant is to have an opportunity to present clear facts or materials demonstrating his (sic) amenability to the rehabilitative process, showing compelling reasons justifying his (sic) admission and establishing that a decision against enrollment would be arbitrary and unreasonable."
The Director and the Prosecutor take the position that the involvement of the Paynes in such criminal activity or business is to be inferred from the quantity of marijuana being transported. An amount so large could not have been possessed for personal use only; it was most likely intended for sale to others in small quantities once the defendants' destination was reached. Consequently, the criminal activity observed on the
Turnpike would have continued, involving profit-making activities with others and therefore meeting the language of Guideline 3(i). The defendants argue to the contrary, claiming that a series of separate undertakings occurring over a period of time is necessary in order to establish the activity or business to which the Guideline refers. A number of cases have addressed the issue but have not provided a definition of the terms in question. Typical cases are the following:
(1) In State v. Bender, 80 N.J. 84 (1979), the defendant had stolen cocaine from the drug store in which he worked as a pharmacist over a period of four years. However, he stole the cocaine for his own use only. The Court, holding that this was not a continuing criminal business, said that the course of conduct must involve commercial overtones, that it must be undertaken for the purpose of enriching the defendant in some material way.
(2) State v. Sutton, 80 N.J. 110 (1979). Four and one half years of welfare fraud was found to be a continuing criminal business.
(3) State v. Smith, 92 N.J. 143 (1983). The defendant was found to be engaged in an organized criminal activity since, if convicted, he would have been involved in gambling activities over a period of eight years.
(4) State v. Barrett, 157 N.J. Super. 96 (App.Div.1978). Stock frauds were committed over a substantial period of time and were therefore found to be part of an organized and continuing criminal activity.
(5) State v. Markt, 156 N.J. Super. 486 (App.Div.1978). The defendant engaged in a series of embezzlements and forgeries over a period of several months. He was held to be engaged in an ongoing criminal activity.
(6) State v. Masucci, 156 N.J. Super. 272 (Law Div.1978). The defendant admitted that he sold marijuana on the street for profit at $25 a half-ounce. A large amount of that drug was found in his home. He was held to be involved in a continuing criminal enterprise. The court said:
The defendant admitted that he sells marijuana for a profit. It is everywhere recognized that the street sale of marijuana is a part of a larger drug traffic which has its genesis outside of this country. His participation in this insidious venture is clear evidence of his ...