On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015.
The opinion of the court was delivered by: Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sapp-Peterson.
Defendant Robert Dwayne Green pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and was sentenced to two years probation. He appeals from the October 23, 2007 final judgment of conviction, contending that he was improperly excluded from the pre-trial intervention program (PTI). See R. 3:28(g).
Following his indictment for three related third-degree CDS offenses, based on his alleged sale of $150 worth of cocaine to an undercover detective, defendant attempted to apply to the Monmouth County Vicinage Criminal Division for admission to PTI. However, he received a Notice of PTI Ineligibility dated January 23, 2007 from the Criminal Division Manager. The notice advised that his case had "been pre-screened by the Monmouth County Criminal Division" and that defendant would not be permitted to apply for PTI without the prosecutor's written consent "in accordance with the guidelines for PTI outlined in" Rule 3:28.
The pre-printed notice checked off as the reasons for rejection: that defendant was charged with selling Schedule II narcotic drugs, an offense carrying a presumption of imprisonment; that the prosecutor had not joined in his application; and that defendant had not shown "compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable" (citing Rule 3:28, Guidelines 2, 3i and 3e). However, it appears from the record that the Criminal Division never actually permitted defendant to apply and therefore never considered the possible merits of such an application.
Thereafter, defendant corresponded with the prosecutor's office, providing significant evidence of his rehabilitation during the period between the October 2005 incident on which the charges were based, and the January 2007 indictment. Stating that there was nothing "extraordinary" or "idiosyncratic" about defendant's situation, the prosecutor declined to join in a PTI application. Thereafter, it appears undisputed that the Criminal Division never actually considered an application from defendant, but instead precluded him from applying at all without the prosecutor's consent. On July 12, 2007, defendant filed a "Notice of Appeal from Pretrial Intervention (PTI) Rejection."
From the transcript of the oral argument of defendant's eventual PTI appeal, we discern that the Criminal Division's practice had been to preclude a defendant charged with certain crimes from applying for PTI without a letter of agreement from the prosecutor's office. While the judge indicated on the record that the system had been revised, because it allowed the prosecutor to, in essence, "short-circuit" a defendant's right to even apply for PTI, it does not appear that Green had the benefit of any such change.
In response to defense counsel's inquiry, the judge responded that defendant was "arguing for the ability to apply" to PTI. The judge confirmed that "if I grant the ability to apply, I'm not putting the defendant into the PTI Program. I'm then allowing the director [of the Criminal Division] to do a full evaluation" and make a recommendation. While acknowledging that defendant had not even been allowed to apply for PTI, the judge nonetheless rejected the appeal on the grounds that the prosecutor's refusal to join in the application was not a gross and patent abuse of discretion. We conclude this was error.
We do not reach defendant's appellate contentions concerning whether he should have been admitted to PTI. Instead, we reverse and remand this matter on procedural grounds, because we conclude that defendant was mistakenly deprived of the opportunity to apply for PTI.
It is clear from Rule 3:28 that the Criminal Division must at least allow a defendant to submit an application to PTI, and must evaluate the application:
Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the ...