Before Judges Stern and Wefing.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
After defendant's application for enrollment in the Pretrial Intervention Program ("PTI") was denied in June 1996, he pled guilty to a count of an indictment charging him with distribution of marijuana in a school zone. *fn1 Defendant was sentenced to four years in the custody of the Commissioner of Corrections with one year before parole eligibility. Defendant neither appealed to the designated PTI Judge from the denial of his application, see R. 3:28(h), and in the absence thereof did not appeal to us notwithstanding his guilty plea, as authorized by R. 3:28(g).
More than one year after sentencing, which occurred in December 1996, defendant sought post-conviction relief ("PCR") by virtue of the rejection of his application for PTI. The trial Judge denied the application, and defendant argues to us that "[t]he Pretrial Intervention Program in conjunction with the Monmouth County Prosecutor's Office failed to properly consider Mr. Staruch's application into the Pretrial Program of Monmouth County," and that "[t]he remedy sought is entirely appropriate for post-conviction relief." We disagree with the latter contention and hold that the PCR petition was not cognizable under R. 3:22-2. Accordingly, we affirm the denial of PCR.
In State v. Baynes, 148 N.J. 434, 451 (1997), the Supreme Court made clear that rejection of a PTI application based merely on a policy of denying enrollment for someone charged with a drug offense in a school zone constitutes a "patent and gross abuse of discretion." Baynes involved simple possession of CDS within a school zone, not an offense in violation of N.J.S.A. 2C:35-7. See also State v. Caliguiri, 308 N.J. Super. 214 (App. Div. 1998), aff'd and modified, 158 N.J. 28 (1999), in which the Supreme Court held "that prosecutors may treat N.J.S.A. 2C:35-7 as equivalent to a second-degree offense and consider PTI presumptively unavailable," 158 N.J. at 43, and that a defendant so charged had to "show 'compelling reasons' to rebut the presumption against PTI." Id. at 44.
Defendant here was indicted for various violations of the Comprehensive Drug Reform Act, including possession with intent to distribute and distribution of marijuana within a school zone, N.J.S.A. 2C:35-7. He contends that because the Monmouth County Prosecutor "had a stated policy of denying admission into PTI" with respect to school zone offenders at the time of his rejection and "there was no case law in this state specifically dealing with PTI and a per se denial of a defendant charged with . . . a school zone [offense]," he is now entitled to have his application reconsidered on the merits. Defendant asserts that:
It was not until October 6, 1997 that the appellate division in the case of State v. Caliguiri, 305 NJ Super. 9 (App. Div. 1997) . . . decided that the per se prohibition was also applicable to defendants who were charged with possession with intent to distribute and/or distribution of a controlled dangerous substance within a school zone. It was this case that makes it clear that Mr. Staruch was denied the rights to which he was entitled under the pretrial intervention statute.
Under the principles enunciated by the Supreme Court in State v. Afanador[,] 151 NJ 41 (1997) the defendant is entitled to be admitted into the pretrial intervention program under the principles enunciated in State v. Baynes, supra, that later became applicable by the application of State v. Caliguiri, supra. Consequently, it is clear by subsequent decisional law that the defendant experienced a substantial denial of his rights under the laws of the State of New Jersey which should be corrected by the granting of post conviction relief.
We conclude that the defendant's petition for PCR was properly denied. Except as provided in the New Jersey Constitution, Rule 3:22 provides "the exclusive means of challenging a judgment rendered upon conviction of a crime." R. 3:22-3. "It is not, however, a substitute for appeal from conviction . . . ." Ibid. See also R. 3:22-4, -5. R. 3:22-2 provides:
A petition for post-conviction relief is cognizable if based upon any of the following grounds:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution ...