On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-08-00599-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 25, 2009
Before Judges C.L. Miniman and Simonelli.
Plaintiff State of New Jersey appeals from a final judgment admitting defendant Ryan Neff into the Somerset County Pretrial Intervention Program (PTI) over the State's objection. Because the prosecutor's reasons for denying admission into PTI were unfounded, he clearly erred in his judgment and we affirm to avoid an egregious injustice.
Defendant,*fn1 as well as Ian D. Witt, Harrison S. Fischberg, and Tyler J. Wilson, were all arrested on June 24, 2008, and charged with second-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5b(10)(b); second-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(1); and second-degree conspiracy to distribute marijuana, contrary to N.J.S.A. 2C:5-2. However, the grand jury subsequently returned an indictment charging defendant with only third-degree possession of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(11); fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3); third-degree possession of hashish with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(11); and fourth-degree possession of hashish, contrary to N.J.S.A. 2C:35-10a(3).
On June 24, 2008, a Federal Express employee notified the State Police that she opened a suspicious package and found about eleven pounds of suspected marijuana.*fn2 She then entered information into the Federal Express tracking system that the package could not be delivered due to an incorrect address and that the recipient would have to pick up the package in person at the Federal Express store. The State Police responded, inspected the package, and observed clear, heat-sealed bags of suspected marijuana.
While the police were at the store, the sender of the package, Kevin Rose, called inquiring about its status. He told the Federal Express employee with whom he spoke to leave the package at the store and defendant would arrive and accept delivery. The package was resealed and the State Police set up surveillance of the front door.
Later that morning, defendant, Witt, Fischberg, and Wilson arrived in a BMW being driven by defendant. Defendant entered the store alone, inquired about the package, provided identification, signed for the package, and returned to the BMW, placing the package in the trunk. As defendant pulled out of the parking lot, surveillance units followed him for a period of time and then effected a motor vehicle stop. Defendant was asked about his movements and he admitted picking up a package at Federal Express, which he claimed was at the request of his mother. He refused to permit a search of his vehicle. All four occupants were arrested and taken to the Somerville Barracks.
There, a narcotic-detector dog gave a positive alert to the odor of a controlled dangerous substance (CDS) coming from the trunk of the vehicle. A search warrant was sought and issued after which the State Police seized an amount of marijuana and hashish sufficient to indicate intent to distribute.
On September 11, 2008, defendant applied for admission into PTI. He provided ten reasons why he should be admitted: (1) he had no intent to distribute and had invested no money in the transaction; (2) although he had a substance abuse problem, he was not a drug addict; (3) he planned to participate in an Outward Bound program from September 20 to December 20, 2008, to rehabilitate himself; (4) he would then enroll in a community college in Washington, D.C., to "distance himself from the people [with] whom [he] got [him]self into this mess" and to prepare him to return to Fordham University in the Fall of 2009; (5) he had not used marijuana since his arrest and had test results to prove it; (6) this was his first offense; (7) it was a nonviolent offense; (8) the charges were third- and fourth-degree offenses, with the weight of the CDS not being a basis for a PTI decision; (9) he had a very strong desire to enroll in PTI and the testing would prevent him from relapsing; and (10) he had been duped by his friends, was not a drug dealer, never purchased more than one ounce of marijuana at a time, and recognized that marijuana had contributed to his academic suspension from Fordham, vowing never to be one of those people who "drop out of college and live with their parents for the rest of their lives."
While this application was pending, defendant's counsel met with the prosecutor*fn3 and provided him with defendant's resume, which recited his strong academic performance and other achievements and had attached photographs of his volunteer work in restoring homes in flood-ravaged areas of Iowa during July and August 2008. Defendant's counsel outlined the cooperation defendant would provide in the prosecution of Witt, Fischberg, and Wilson. When the prosecutor sought further information about this, defendant's counsel agreed to provide a more detailed description of defendant's offer of cooperation along with reasons why defendant should be admitted into PTI.
On October 7, 2008, the PTI director completed a PTI rejection form. The only reason advanced for not recommending PTI was "[t]he nature of the offense, N.J.S.A. 2C:43-12e(1)."*fn4
At the bottom of the form the following statement appeared: "The State agrees that rejection is appropriate for the reasons expressed above. Should an appeal of this decision be filed, the State reserves the right to respond with a comprehensive analysis, including a statement of facts, reasons for rejection, and a citation of supporting legal authority." Although a space for the signature of the First Assistant Prosecutor followed this statement, the copy in the record on appeal was not signed. Defendant appealed this determination on October 15, 2008.
Also on October 15, 2008, defendant's counsel provided the prosecutor with a further specification of defendant's offer of cooperation, including corroboration of defendant's information respecting the respective roles of Witt, Fischberg, and Wilson, and set forth additional reasons for defendant's admission into PTI. As to the latter, counsel pointed out that defendant was the least culpable of the four defendants and should not be saddled with a criminal conviction where the other three apparently would not even be prosecuted. He argued that defendant satisfied Guidelines 1 and 2 and that the factors in Guideline 3 and N.J.S.A. 2C:43-12e clearly weighed in favor of PTI admission. Specifically, defendant met the age, residency and jurisdictional requirements; was a first offender who had never been on parole or probation; had never received the benefit of a diversionary program; was willing to cooperate and complete community service; and none of the seventeen factors in N.J.S.A. 2C:43-12 provided a reason for rejection.
The prosecutor on October 30, 2008, wrote to the judge, with a copy to defendant's counsel, stating the reason for the rejection was N.J.S.A. 2C:43-12e(2) (the facts of the case), apparently eschewing the nature of the offense cited by the PTI director. He also provided the State's analysis of the factors the statute requires PTI directors and prosecutors to consider. He provided no elaboration as to originally cited factor (1), but stated under factor (2) that the quantities of marijuana and hashish possessed were close to the second-degree range. Under factor (3), he stated that defendant was then twenty and his cooperation "was likely generated by a desire to avoid jail."
The prosecutor acknowledged that there was no identified victim other than society as a whole under factor (4) and that defendant's crime was caused by his substance-abuse problem under factor (5), noting that probation, the State's plea offer, would address this problem just as well as PTI. Under factor (6), he observed defendant's drug use was as likely to change through the criminal justice system as through PTI. As to factor (7), the prosecutor noted that society has a strong interest in prosecuting a defendant involved in the distribution of drugs on such a scale.
As to factors (8) and (9), the prosecutor noted that defendant had two juvenile arrests, one for possession of marijuana and one for underage possession of alcohol, resulting in a requirement for substance-abuse counseling. Under factor (10), the prosecutor stipulated that the crime was not violent. He concluded under factor (11) that prosecution would not exacerbate the social problem that led to defendant's criminal act because defendant's substance-abuse problem would be ...