On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-01-00038-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and King.
In this appeal, we reverse the trial judge's order that set aside the prosecutor's rejection of defendant for enrollment in the pretrial intervention program (PTI).
The record reveals that Officer Thomas Valente of the Bedminster Police Department responded to a call for assistance at Rattlesnake Bridge Road near Interstate 78. Upon his arrival, Officer Valente observed a 1995 BMW with New York plates stuck in mud and snow. Defendant was standing next to the vehicle while his female passenger, Jazmyn Yearwood, remained in the front passenger seat.
After calling for a tow truck, Officer Valente asked for driving credentials. Defendant stated that Yearwood, who only had a learner's permit, was driving; he also advised the officer that his license was suspended. Yearwood told the officer she had no driving credentials. Upon further investigation, Officer Valente confirmed that defendant's New York license was suspended and, also, learned that defendant was wanted as a fugitive from Maryland.
Defendant and Yearwood were taken to police headquarters, as was defendant's vehicle, which had to be towed. Yearwood consented to a search of the vehicle; inside the trunk was a shopping bag and inside the shopping bag was a sealed plastic bag, which contained five and three-quarter ounces of marijuana. Yearwood was placed under arrest.
After being advised of his Miranda*fn1 rights, defendant gave a statement in which he admitted he was driving the vehicle and that the marijuana belonged to him. Defendant was later indicted and charged with third-degree possession of over one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(11), and fourth-degree possession of over 50 grams of marijuana, N.J.S.A. 2C:35-10a(3). Defendant was also issued three motor vehicle summonses.
Defendant's application for enrollment in the pretrial intervention program (PTI) was rejected by the prosecutor, who explained that the offenses charged were part of a continuing pattern of antisocial behavior, which included assault and reckless endangerment charges pending against him in Maryland. When defendant appealed his rejection, the prosecutor provided a more detailed explanation, including the following analysis:
An analysis of the Guidelines in R. 3:28 and of the factors listed in N.J.S.A. 2C:43-12e demonstrates that defendant is not an appropriate candidate for [PTI].
To allow defendant into [PTI] would circumvent Guideline 1 to R. 3:28. Guidelines 1(a), (b) and (e) all speak to deterring future criminal behavior. As the PTI rejection indicates, defendant has a pending assault and reckless endangerment case from the State of Maryland. Defendant was wanted as a fugitive on that case. He was driving the car while his license was suspended. Thus, his prior arrest has not deterred him from engaging in crime. The fact that his license has been suspended has not deterred him from not only driving, but also transporting narcotics.
The considerations in N.J.S.A. 2C:43-12e and Guideline 3 also demonstrate that this defendant is not an appropriate candidate for PTI.
Among  those considerations are N.J.S.A. 2C:43-12e(1) and (2), the nature of the offense and the facts of the case. Here defendant was in possession of almost six ounces of marijuana for its intended distribution. The distribution of drugs is quite serious. That also implicates N.J.S.A. 2C:43-12e(7), the need of ...