On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Chambers.
Defendant Jovan Alvarez appeals his judgment of conviction of August 15, 2008, on the basis that the prosecutor abused his discretion in refusing defendant admission into the pretrial intervention program (PTI) governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey. We agree. Although defendant was accepted into the PTI program, the prosecutor objected to his admission into the program on the basis that defendant did not accept full responsibility for his criminal conduct. The record does not support this assertion. We reverse the conviction and direct that defendant be admitted into the PTI program.
In March of 2007, defendant was a full-time student at the William Paterson University scheduled to receive a BA Degree in Music Performance that summer. He planned to pursue a masters degree in music and was considering studying at The Juilliard School. He was living with college roommates.
On two occasions defendant sold marijuana to confidential informants working with the Passaic County Prosecutor's Office. The confidential informants were individuals known to defendant. As a result, on March 22, 2007, the Prosecutor's Office executed a search warrant on defendant's apartment and found seventeen bags containing marijuana, some bags and a container with marijuana residue, a pack of rolling papers, a silver grinder, two boxes of empty bags, and a pipe with suspected marijuana residue.
Defendant's roommate provided the Prosecutor's Office with a written, signed statement dated April 13, 2007, in which he advised that on occasion he would purchase marijuana from defendant and that on other occasions defendant would give him the marijuana free. The roommate would pay defendant between twenty to fifty dollars for the marijuana when he purchased it, and he would buy marijuana from defendant about once every week or two.
Defendant was indicted on May 31, 2007, for fourth-degree possession of marijuana in excess of fifty grams, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11) (count two); and third-degree possession of marijuana with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three).
On July 9, 2007, the prosecutor consented to allow defendant to apply to PTI out of time. At the time of the PTI evaluation, defendant was living with his parents, attending school, working as a freelance musician, teaching music, and undergoing substance abuse counseling. He had no prior criminal or juvenile proceedings. The Director of the PTI program found defendant suitable for the program based on the following four factors: (1) defendant accepted responsibility for his involvement in the offenses, expressed remorse and was amenable to rehabilitation; (2) defendant, twenty-two years old, had no prior arrest history or "severe correctional problem" and PTI should be a sufficient sanction to deter future criminal activity; (3) defendant was willing to pay fines and perform in community service, thereby demonstrating amenability to rehabilitation; and (4) a causal connection appeared to exist between the offense and a need for rehabilitation, since defendant had a "significant history of marijuana use" and was receiving substance abuse treatment.
Despite this favorable recommendation, the prosecutor objected to defendant's enrollment into PTI. Before doing so, the Prosecutor's Office had requested defendant to serve as a confidential informant. Defendant had declined.
Pursuant to Rule 3:28(h) defendant moved for admittance into PTI despite the prosecutor's objection. In his motion, defendant contended that the prosecutor objected to his enrollment into PTI because he refused to serve as a confidential informant. The Prosecutor's Office denied this assertion and maintained that it objected to the enrollment because defendant had not accepted responsibility for his conduct and was minimizing what he did. The Prosecutor's Office noted that defendant's activity took place within 1,000 feet of a school and that the marijuana was in defendant's possession for distribution and not personal use.
At oral argument on the motion before the trial court on November 13, 2007, the Prosecutor's Office reiterated that it objected to PTI enrollment because defendant would not accept responsibility for his conduct. Upon inquiry by the trial court, the defense indicated that defendant would plead guilty to the distribution charges as part of an arrangement to be admitted into PTI. The Prosecutor's Office rejected this alternative. Its offer was a plea with a three-year sentence of imprisonment, eighteen months without parole. ...