May 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENDALL L. JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-07-0963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 6, 2009
Before Judges Axelrad and Lihotz.
Defendant, Kendall Jones, appeals from the court's denial of his application for entry to the Drug Court Program, finding no patent and gross abuse of prosecutorial discretion. He also challenges the imposition of consecutive sentences on his plea to the new offenses and the violation of probation. We affirm.
On April 21, 2004, defendant was indicted under Ocean County Indictment No. 04-04-778, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three), and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b (count four).
On May 14, 2004, defendant was indicted under Ocean County Indictment No. 04-05-964, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count fifteen).*fn1
On June 7, 2004, pursuant to a plea agreement, defendant pled guilty to counts three and four of Indictment No. 04-04-778, and to count fifteen of Indictment No. 04-05-964. On July 23, 2004, he was sentenced to three years' probation on all counts concurrent to each other with applicable fines and penalties.
On June 28, 2005, defendant was indicted under Ocean County Indictment No. 05-06-890, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one) and second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count two).
On July 20, 2005, defendant was indicted under Ocean County Indictment No. 05-07-963, charging him with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count three); and fourth-degree possession of a prohibited weapon, brass knuckles, N.J.S.A. 2C:39-3e (count four).
On April 5, 2006, defendant was indicted under Ocean County Indictment No. 06-04-550. The single count of the indictment charged defendant with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1).
Defendant timely filed an application to the Ocean Vicinage Drug Court Program, but on August 11, 2006, the Prosecutor's Office submitted a legal rejection, as a result of which defendant was informed by the Drug Court Team Leader he was denied entry. Defendant appealed to the Superior Court, Law Division and on October 17, 2006, a hearing was held before Judge Villano. The court denied admission into Drug Court, finding no patent and gross abuse of prosecutorial discretion.
On November 3, 2006, defendant pled guilty to count two of Indictment No. 05-06-890 (second-degree possession of cocaine with intent to distribute) and count two of Indictment No. 05-07-963 (third-degree possession of cocaine with intent to distribute). This was a negotiated plea as per the Brimage*fn2 guidelines, which sought a ten-year custodial term with a forty-eight-month period of parole ineligibility on the second-degree count with a concurrent five-year custodial term on the third-degree count. All other charges were to be dismissed. Defendant reserved the right to appeal his rejection from the Drug Court Program and to argue at sentencing that the pending Violations of Probation (VOP) should run concurrent to the sentence on his plea.
On January 5, 2007, defendant pled guilty to the VOP on Indictment Nos. 04-05-964 and 04-04-778. Judge Citta granted the State's motion for a mandatory extended term. N.J.S.A. 2C:43-6f. The court sentenced defendant to concurrent custodial terms on the VOP of four years on Indictment No. 04-05-963, and on Indictment No. 04-04-778 to four years on count three and twelve months on count four. In accordance with the plea agreement, the court then sentenced defendant to ten years in custody with a forty-eight-month period of parole ineligibility on count two of Indictment No. 05-06-890, and a concurrent five years in custody on count two of Indictment No. 05-07-963. The court ordered the sentences on these indictments to be served consecutively to the sentences imposed on the VOP, resulting in an aggregate sentence of fourteen years with forty-eight months of parole ineligibility. All remaining charges were dismissed. This appeal ensued.
Defendant admitted as part of his plea to possessing less than half an ounce of cocaine on March 1, 2005, while in the Borough of Seaside Heights, with the intent to sell it, and between half of an ounce and five ounces of cocaine on April 7, 2005, while in the Township of Lakewood, with the intent to sell it.
The State objected to defendant's application for Drug Court admission, a form of special probation, under N.J.S.A. 2C:35-14c. That statute provides in pertinent part that:
A person convicted of or adjudicated delinquent for an offense under section 1 of P.L.1987, c.101 (C.2C:35-7), subsection b. of section 1 of P.L.1997, c.185 (C.2C:35-4.1), or any crime for which there exists a presumption of imprisonment pursuant to subsection d. of N.J.S.2C:44-1 or any other statute, or who has been previously convicted of an offense under subsection a. of N.J.S.2C:35-5 or a similar offense under any other law of this State, any other state or the United States, shall not be eligible for sentence in accordance with this section if the prosecutor objects to the person being placed on special probation. The court shall not place a person on special probation over the prosecutor's objection except upon a finding by the court of a gross and patent abuse of prosecutorial discretion. . . .
The prosecutor's rejection form listed the reasons for rejection as weapons history, profit motive and a significant threat to the community. In the prosecutor's letter objecting to defendant's placement in the Drug Court Program, he summarized the events involved in defendant's charges. The prosecutor noted defendant's admission that he sold drugs, and that brass knuckles were found on his person, and two knives and a sword were found in his motel room, along with the cocaine and marijuana. Defendant also had $1,775 in cash, in small bills divided among his three pockets,*fn3 as well as $1,100 in cash in the room. Defendant was picked up with cocaine, marijuana, over 100 small plastic baggies, and $1,294 in cash in his Lakewood motel room.
At the hearing before Judge Villano the State emphasized the weapons possessed in connection with the drugs and the evidence supporting that defendant was a drug dealer who was selling for profit, not one merely seeking to fund his own habit. The State further commented on defendant's prior record, notably his convictions for third-degree possession of cocaine with intent to distribute and carrying a prohibited weapon in 1992, and third-degree possession with intent to distribute in 1996. The State argued that defendant was "a significant threat to the community" and, under the totality of the circumstances, the State's objection to defendant's admission into Drug Court was appropriate and was not a gross and patent abuse of discretion.
Defendant admitted he was a narcotics abuser but his position was that any profit he was gaining by dealing drugs was to fund his own drug habit and perhaps the habits of his friends. The defense emphasized the thirty-three year old was never given the opportunity to participate in rehabilitation, and requested a Task evaluation by the Drug Court team to determine whether defendant was an appropriate candidate to move forward in the program.
Judge Villano declined to override the State's objection, finding the prosecutor's decision was not a gross and patent abuse of discretion. The judge noted she found the case "troublesome" as she believed the letters from defendant indicated he had a "sincere conviction toward recovery." However, she explained that when there are charges involving distribution of drugs as an ongoing business enterprise, the law affords the prosecutor the right to object to a defendant's admission to drug court and the judge has limited discretion in overriding that determination. The court concluded:
Now, we have a weapon situation. I agree that the brass knuckles qualify as a weapon and so does the sword, but certainly it's not a handgun. And if it were just the weapons situation without the prior history and the money and the circumstances, I would be more inclined to consider this for gross and patent abuse of discretion. But under the totality of the circumstances here, the felony convictions, the distribution, the prior conviction of the prohibited weapon, there is no conceivable way that this Court can find that the Prosecutor is acting patently and grossly outside of their permitted guidelines and criteria.
Defendant concedes this case falls squarely under N.J.S.A. 2C:35-14c and that defendant is not legally entitled to be admitted into Drug Court over the prosecutor's objection unless the court finds a gross and patent abuse of prosecutorial discretion. He argues, however, the court should have found that the prosecutor's focus on his dealing for profit was misplaced since defendant was more likely selling to support his addiction than from a pure profit motive, that the weapons involved in defendant's history were not firearms, and that the "danger to the community" lies more in failing to admit defendant into drug court and treatment than in rejecting him from the program. According to defendant, by denying him entry into this diversionary program, the prosecutor created a greater potential that upon defendant's release from state prison he will be undeterred, as his drug addiction will not have been addressed, creating a further likelihood that he will spiral out of control and engage in an endless cycle of violating the laws of the State, including the drug laws. Accordingly, defendant urges that the court should have concluded that he met all of the eligibility criteria under N.J.S.A. 2C:35-14 and that the prosecutor's opposition to his application was a gross and patent abuse of prosecutorial discretion.
We are not persuaded by defendant's arguments. The gross and patent review standard applying to drug court admission was articulated in State v. Hester, 357 N.J. Super. 428 (App. Div.), certif. denied, 177 N.J. 219 (2003), as follows:
To succeed on this appeal, therefore, "defendant must show that the prosecutor's decision '(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.'" Moreover, to rise to the level of "patent and gross abuse of discretion," it must be shown "that the prosecutorial error complained of would clearly subvert the goals underlying" the Drug Court program. Thus, "a prosecutor's decision to reject a [Drug Court] applicant 'will be rarely overturned.'" [Id. at 443 (quoting State v. Brooks, 175 N.J. 215, 225 (2002) (internal citations omitted)).]
In a case involving an application for pretrial intervention, containing a similar "gross and patent abuse" review standard as drug court admission, our Supreme Court discussed the concept of a "clear error of judgment," stating:
The concept of a "clear error of judgment" is a familiar one in the criminal practice.
In other contexts we have explained that an error in applying guidelines to the facts of the case must be "clearly unreasonable so as to shock the judicial conscience," before it may be branded a clear error of judgment.
Such an error is one that "could not have reasonably been made upon a weighing of relevant factors." We seek to avoid the substitution of appellate judgment for the judgment of the agency responsible for the function involved, be it prosecutorial or judicial. [State v. Nwobu, 139 N.J. 236, 253-54 (1995) (internal citations omitted.)]
Defendant has several drug charges with a large quantity of cocaine and was found with several thousand dollars in cash. As articulated by the State, this was far beyond selling to support a drug habit. Even if we were to assume that the cash found was not from the sale of narcotics, then defendant had ample funds to support his habit without selling drugs. Moreover, despite defendant's prior conviction for a weapons offense, he continued to carry weapons while distributing drugs. Simply because the weapons were not firearms does not minimize the danger to the community. The record is clear that defendant is a career drug dealer with multiple convictions and continuing contact with the criminal justice system despite prior probation. Under the totality of the circumstances, the State was well within its discretion to object to defendant's entry into Drug Court. We discern no basis to interfere with the court's acceptance of that rejection.
We are also not persuaded by defendant's challenge to the consecutive sentences. Under the plea agreement, defendant reserved the right to argue that concurrent sentences be imposed on the VOP and new offenses, which he did. In rejecting the argument, the court noted primarily the new crimes occurred while defendant was on probation. It commented that there are no free crimes and that defendant disregarded the opportunity to address his substance abuse problems while on probation and instead "continued to be active not only in his substance abuse but in the criminal vein of distributing narcotics." Defendant argues the court failed to consider all of the Yarbough*fn4 criteria, which would have militated for concurrent sentences, urging that all the crimes and their objectives were inextricably interrelated as they were all based on, and driven by, defendant's drug addiction.
We discern no basis to second-guess the sentencing judge's discretionary decision. In State v. Sutton, 132 N.J. 471, 484 (1993), the Court concluded that N.J.S.A. 2C:44-5 "create[s] a presumption of consecutive terms, subject to the exercise of judicial discretion, whenever a defendant commits an offense while released on probation . . . ." Moreover, the crimes to which defendant violated his probation were two counts of possession of cocaine and hindering apprehension, which occurred in December 2003 and January 2004 in Dover Township, while the newer charges occurred in March and April 2005 in Seaside Heights and Lakewood, respectively. Merely because all involved drug charges does not negate that the crimes involved separate acts, at separate times, and in separate places, meriting consecutive terms. Yarbough, supra, 100 N.J. at 643-44.