On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-07-894-A.
Before Judges Stern, Coburn and Alley.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2002
Pursuant to N.J.S.A. 2C:35-14(c), *fn1 the State appeals from the sentencing of defendant, over its objection, to "special probation," which the parties also refer to as a "Drug Court program." On appeal, the State argues that the trial court's decision must be reversed "because the prosecutor did not commit a patent and gross abuse of discretion in vetoing defendant's application" for admission into the program. According to the prosecutor, "defendant's criminal history, his previous apathy towards rehabilitation and his prior poor performance on probation more than justified the prosecutor's position" rejecting the "Drug Court" application. The State also objects to the fact that the judge decided to permit defendant's entry into the program before the charges were disposed of and, after the sentence was imposed, vacated the stay of sentence before the appeal was decided. We conclude that the admission of defendant into the program over the prosecutor's objection was improper, and remand for further proceedings.
According to the State's submission to the trial court, on August 8, 2001, a Morristown police officer observed the defendant ingesting CDS while sitting on a bench in Abbett Avenue Park. The officer approached defendant and "a fold containing suspected heroin residue was recovered from the bench." Defendant was arrested, and incident thereto, another fold was recovered. A plastic bag containing 50 "small 'corner bags' of suspected cocaine" was found during a search of defendant at the time of his commitment to the County Jail.
Defendant was 42 years old at the time of arrest. As reported in a "Chemical Dependency Evaluation" prepared for the Office of the Public Defender by Thomas Melahn, a licensed social worker, defendant began consuming alcohol when he was seventeen years old. He began using cocaine while socializing in New York City in his twenties. Within six months of his first introduction to cocaine, he began purchasing cocaine in the Morristown area, and ingesting cocaine three to four nights during the week and on the weekends. Defendant became "hooked" on heroin immediately after first using it in July 2001. He used two bags each day until his arrest on August 8, 2001.
Defendant held several jobs over his lifetime. In 1979, he worked as an orderly in the Morris View Nursing Home. After a year there, he worked in a Friendly's Restaurant. From 1982 to 1993, he worked in the bookstore and the kitchen at the College of Saint Elizabeth. In 1996, he worked cleaning floors with an uncle. After this uncle moved from the area, he worked at the Mennen Arena in Morristown and at other jobs.
Defendant has six prior convictions; all were drug- related. On April 16, 1992, he was convicted of third degree distribution of cocaine, in violation of N.J.S.A. 2C:35- 5(b)(3). He was sentenced to two years of probation. *fn2 On October 23, 1992, he was placed on probation for two years for possession of cocaine under N.J.S.A. 2C:35-10(a). On August 6, 1993, defendant was again placed on probation for possession of CDS, N.J.S.A. 2C:35-10(a)(1). He was required to enroll in an inpatient drug program as a condition of that probation. On October 2, 1997, defendant was sentenced on two accusations charging possession of cocaine and possession of cocaine and heroin, in violation of N.J.S.A. 2C:35-10(a)(1). He was placed on probation for two years with 50 days to be served in the county jail. He was required to "attend and com[p]lete an outpatient-drug/alcohol treatment program approved by probation." On April 4, 1998, defendant was again sentenced for possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1). The court ordered him to serve two years probation with urine monitoring. On December 22, 1998, defendant was again convicted of possession of cocaine under N.J.S.A. 2C:35-10(a)(1) and sentenced to the custody of the Commissioner of Corrections for four years. *fn3 On March 19, 2002, defendant filed an "Application to the Drug Court Program" with respect to the August 8, 2001 arrest.
On April 22, 2002, the State filed a letter memorandum in opposition to the application, asserting that (1) defendant's performance while on probation "was horrendous," (2) he failed to take advantage of an earlier opportunity to enter an inpatient drug treatment program in lieu of the four year custodial sentence, (3) he was a "significant street-level drug dealer," (4) he was found with fifty bags of cocaine in a playground "frequented by juveniles," and (5) the community's "interest in seeing the defendant punished" outweighed his "interest in rehabilitation." On May 3, 2002, the Morris County Drug Program issued a "Notice of Legal Eligibility Decision" rejecting the application because defendant posed a "significant threat to the community," and because of his "profit motive" in dealing drugs.
Defendant appealed the rejection and, on June 17, 2002, the prosecutor filed a letter "brief in opposition" to his appeal. The State noted the pending charges of possession of cocaine and heroin and possession with intent to distribute cocaine, and added that "[a]lthough not charged on a complaint, there is probable cause to believe that [defendant] committed the crime of possession of cocaine with intent to distribute within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1." The State noted that N.J.S.A. 2C:35- 14(c) provided that the court could not place defendant in the program over the State's objection because of the "earlier distribution conviction," and "rejected the defendant's Drug Court application" because of his prior conviction under N.J.S.A. 2C:35-5 and "the facts and circumstances of the current offense."
On June 20, 2002, the trial court held a hearing on the application. The defendant offered the Melahn report. In his report, Melahn analyzed the nine criteria for admission into the program, as embodied in N.J.S.A. 2C:35-14(a). In a supplemental report, Melahn concluded:
Prior to his introduction to narcotics, [defendant] was a gainfully employed individual with no prior criminal history . . . He has not shown in any manner to be a threat to the community. Even his criminal history has no acts of violence. Mr. Hester may have difficult time coming to the reality of his drug problems and a need to gain treatment, but he is certainly a viable candidate for rehabilitation. Additionally, the Drug Court's "task evaluator," Samantha Brennan, noted at the hearing that defendant "appears motivated" and that "whatever his motivation is, clinically he is appropriate for Drug Court." Also, defendant asserted that his willingness to remain in the County Jail while his application was being processed and until program bed space became available, without obtaining post-judgment credits, reflected his commitment to the program.
On June 27, 2002, the judge "overrule[d] the rejection," and found that the State committed a "patent and gross abuse of prosecutorial discretion" in rejecting defendant's application. He applied the standard used in evaluating the State's decisions on admissions to the Pretrial Intervention 6 Program ("PTI"), although he "question[ed] the application of this standard" with respect to the Drug Court program because PTI dealt with pretrial diversion from prosecution. In finding a "patent and gross abuse of discretion," the judge noted that defendant's prior convictions were symptomatic of his drug addiction. The judge concluded that defendant's prior conviction for distribution of a "small amount of CDS" was motivated by his need to generate income to purchase drugs for his own consumption and not "strictly for profit." He determined that the State was incorrect in labeling defendant a "street level dealer" without reference to his addiction. The judge found that defendant's possession of fifty bags of cocaine in this case was not conclusively for sale because the record indicated that an addict could consume such amounts and the defendant was supported by his mother, with whom he lived. *fn4 The judge further found that the prosecutor failed to acknowledge that defendant's prior behavior, including his non-compliance with probation, was caused by ...