On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
A Monmouth County grand jury indicted defendant, George A. Adams, on seven counts of drug-related offenses. On April 2, 2007, defendant appeared before Judge Kreizman and entered into a plea agreement under which he agreed to plead guilty to the charge of possession of cocaine with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. In exchange, the State agreed to recommend a three-year custodial sentence with no parole disqualifier, noting that defendant fit the "criteria and qualifies for a flat or what will be... called an open offer" pursuant to State v. Brimage, 153 N.J. 1, 14 (1998). Judge Kreizman indicated that he would sentence defendant to a non-custodial term.
The plea agreement also indicated that "defendant [is] to apply to PTI*fn1 today." When the judge learned of this provision, however, he voiced his objection and advised that "if [defendant] makes an application, my deal's off. As simple as that." In light of this development, the court took a recess to afford defense counsel an opportunity to discuss the matter with defendant. When the matter reconvened defense counsel advised the court that "in light of Your Honor's comments, my client's obviously not going to apply for PTI today." Defendant proceeded to enter a formal plea in accordance with the plea agreement. Thereafter, Judge Kreizman explained why he objected to defendant applying for admission into PTI:
The Prosecutor made an offer of three years flat, and I said that because Mr. Adams had no prior record that I would place him on probation; however, there was a request that they applied [sic] for pretrial intervention. I didn't think that was at all appropriate. He faced a significant jail sentence in this case. If not for my interceding and agreeing to probation, and I think he belongs on probation, not pretrial intervention. He sold drugs. He should have a criminal history because of that, whether it be a small amount, a big amount.
The Asbury Park area is... just inundated with buyers and sellers of drugs, violence, all kinds of things and somebody who gets himself into the position where he's selling drugs within a thousand feet of a school should have a criminal history and should be placed on some pretty intensive supervision.
So that's my reason for saying that I would - - not go along with my recommendation or my promise if he did apply for presentence - - pretrial intervention rather.
On May 18, 2007, defendant applied for admission into PTI. The probation officer who processed defendant's application opined that defendant "[did] not appear to be truthful about his prior criminal history" but nonetheless "cautiously" recommended that he be admitted to the program "as [defendant] has minimal involvement with the law, appeared motivated, and is a full[-] time college student who has taken responsibility for the present offense and is trying to further his education and move forward with his life."
The Monmouth County Prosecutor's Office (Prosecutor) rejected the application, citing: (1) the facts of the case; (2) the fact that defendant dispensed a Schedule I and II drug and was not himself drug dependant; and (3) defendant's absence of motivation to succeed in the program evidenced by defendant's failure to provide proof of educational pursuits to the PTI investigator despite being asked to do so and his denial of any prior criminal involvement, although his criminal history revealed two prior arrests in New York, one of which occurred following his application for admission into PTI.
Defendant appealed the rejection of his PTI application to the Law Division, arguing that the Prosecutor considered inappropriate factors. The matter was heard before a different judge. Judge DeStefano reviewed the statement of defendant's co-defendant that defense counsel had secured following the Prosecutor's rejection of defendant's application. In a written opinion issued November 9, 2007, Judge DeStefano found that the Prosecutor "was wrong to consider the co-defendant's statement as evidence that the defendant's drug sale was a series of ongoing transactions." The judge then found:
The prosecutor was correct however in assessing the next two factors. The fact that the defendant lied about having two prior arrests does raise doubts about his motivation to follow through in the PTI program. Under Guideline 3(i), it states that a person who is charged with the sale of Schedule I or II narcotic drugs who are not drug-dependent, such as this defendant, should not ordinarily be entered into PTI.
That adds to an already high threshold that a defendant must establish in proving that "fundamental fairness and justice require judicial intervention." [State v.] Wallace, 146 N.J. [576,] 582-83 [(1996)]. There may be adequate justification to reject the defendant from PTI based on the second and third factors alone. But because one-third of the prosecutor's reasoning was based on an incorrect and unproven factual basis to justify rejection, the case must be remanded for reconsideration. State v. ...