On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication October 6, 1997.
Before Judges Dreier, Keefe and P.g. Levy. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
In these otherwise unrelated cases, the State of New Jersey appeals from two decisions of the Law Division granting the appeals of each defendant from a decision of the Middlesex County Prosecutor denying the admission of each defendant into the Pretrial Intervention Program. The orders did not direct defendants' admission into the program, because, as we were informed at oral argument, they cannot be admitted into the program until individual rehabilitatory orders are entered after consideration by the appropriate program officials. We have interpreted the Judge's orders as directing admission into the program subject to such individual processing. Because the issues presented in both cases require a common analysis, we have consolidated these appeals for the purpose of this opinion.
Defendant Caliguiri was charged with possession of marijuana over fifty grams, N.J.S.A. 2C:35-10a(3), possession of the marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and
-5b(11), and possession of the marijuana with intent to distribute within 1,000 feet of school property, N.J.S.A.
The police approached Caliguiri in South River at 1:58 a.m. because his car radio was too loud for the time of night. While speaking with the defendant, the officer noticed rolling papers on the driver's side door and loose marijuana on the seat. He then patted-down defendant and recovered a bag of marijuana from his right front pocket. A search of the vehicle revealed another bag of marijuana behind the driver's seat. Defendant then told the officer that a third bag could be found under a carpet in the left rear corner of the trunk. This stop occurred within 1,000 feet of a school. When taken to headquarters, Caliguiri told the officer that the large zip-loc bag found in his trunk contained one and a half ounces of marijuana, and he volunteered the name of the person from whom he had purchased the bag for $150 and where it was purchased. He told the police he was not a distributor of CDS and, according to the police report "most of the marijuana was for personal consumption. However, Mr. Caliguiri ... did state he would distribute marijuana only to close friends." There was no mention of any sale of marijuana to any person.
Caliguiri was rejected for the Pretrial Intervention Program on the basis that the "offense is too serious for Pretrial Intervention." This appears to be a categorical rejection. The assistant prosecutor incorporated within this final rejection the report of the PTI program director who had noted that the offense carries a presumption of incarceration and that "the seriousness of the offense is weighed heavily." We note that Caliguiri had no juvenile or criminal record, had never been arrested, was a high school graduate living at home with his parents and was gainfully employed, and had apparently cooperated with the police both by pointing out where additional marijuana had been hidden in his car and by revealing the name and location of his supplier.
We are governed in this case by a long series of Supreme Court decisions defining the Judiciary's role in reviewing a prosecutor's decision denying a defendant's admission into a Pretrial Intervention Program. Some, including the most recent Supreme Court expression concerning PTI, expressly deal with the specific objection raised by the defendants in both of these cases, namely that they have been excluded from the program solely by virtue of the crimes with which they are charged, irrespective of the merits of their individual situations. See State v. Baynes, 148 N.J. 434, 690 A.2d 594 (1997); see also State v. Wallace, 146 N.J. 576, 684 A.2d 1355 (1996); State v. Nwobu, 139 N.J. 236, 652 A.2d 1209 (1995); State v. Bender, 80 N.J. 84, 402 A.2d 217 (1979); State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977) (Leonardis II) and State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) (Leonardis I). These decisions and others were discussed in detail in State v. Baynes and provide the foundation for judicial review of prosecutorial discretion in this area.
As noted in Baynes, there is no question that Nwobu, Bender, Wallace, and both Leonardis cases require us to accord great deference to a prosecutor's decision to deny PTI to a particular defendant. See Baynes, 148 N.J. at 443-44. We examine the cases before us with this principle clearly in mind. Further, we recognize that the Supreme Court has stated that prosecutors may "base their rejections solely on the ...