On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, Indictment No. 08-08-2589.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Messano and LeWinn.
Defendant David Halperin appeals from the January 5, 2009 order that affirmed the rejection of his application for admission to the Pre-trial Intervention Program (PTI) by the program director and the Essex County Prosecutor. He argues that the rejection by the director "represented a gross and patent abuse of discretion because [she] failed to consider all of the pertinent factors." As to the prosecutor, defendant contends that her "decision not to join in [defendant's] application represented an abuse of discretion because undue weight was placed on an inappropriate factor and the factors were inappropriately weighed." Defendant further contends that "application of the facts of [his] situation to the statutory criteria for PTI admission reveals that [he] is an ideal candidate for PTI."
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The Essex County grand jury returned Indictment No. 08-08-2589 charging defendant and Morgan McAllister with possession of heroin in the third degree, N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3); and second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1(a).*fn1 In a separate complaint, defendant was also charged with possession of drug paraphernalia, N.J.S.A. 2C:36-2, two tightly-rolled dollar bills. Defendant applied for PTI.
On October 17, 2008, defense counsel submitted a letter to the Criminal Case Manager and the prosecutor in which he noted that because defendant was charged with a second-degree offense, "[he] must present compelling reasons for his admission into the [PTI] program." The letter addressed each of the seventeen "criteria" that "[p]rosecutors and program directors shall consider in formulating their recommendation of an applicant's participation" in the program. See N.J.S.A. 2C:43-12(e).
In particular, defendant, who was twenty-two years old when arrested, claimed that the 150 "slips of heroin" he possessed with McAllister were for his personal use; that he immediately entered an in-patient substance abuse program after his arrest, and was continuing his treatment in an "in-patient halfway house"; that he was a third-year student at Marywood University in Scranton, Pennsylvania, "majoring in nursing"; and that he had no prior arrests. Also attached were sixteen letters from defendant and various friends and family members in support of his admission.
On October 22, the director responded. While noting that defendant's "dependency on illegal narcotics[,] . . . the length of time [he] has been drug dependent, [his] recognition of his addiction[,] and the impact on [his] completion of the nursing program . . . supported . . . defendant's acceptance into . . . PTI[,]" the director also noted that defendant was charged "with a . . . second-degree offense." Concluding defendant's "submission [did] not show compelling reasons justifying his admission," the director rejected the application.
On November 5, the prosecutor notified defense counsel that she "w[ould] not consent to [defendant's] enrollment into" PTI. She noted that on the night of his arrest, defendant was a passenger in a car driven by McAllister that was parked at a shopping center in West Orange. After police officers noticed both were acting suspiciously, they approached the car and asked to speak to defendant. McAllister began to cry and blurted out that she "had only come for the ride." In her wallet, police found a small envelope of heroin; in a green canvas bag on the floor of the car near the passenger seat, police found 150 folds of heroin, and additional heroin was found in cigarette boxes in the car.
In the balance of her six-page letter, the prosecutor reviewed the statutory criteria, and concluded there were eight "aggravating factors . . . relevant in th[e] case." Concerning "[t]he nature of the offense[,]" N.J.S.A. 2C:43-12(e)(1), she noted that defendant "[wa]s presumptively ineligible for PTI due to the serious nature of the" crime, i.e., a second-degree offense. She further noted that "[t]he facts of the case" suggested that defendant possessed the heroin with intent to distribute it for financial profit, as opposed to personal use. See N.J.S.A. 2C:43-12(e)(2). Citing the myriad consequences of drug distribution on individuals and society, the prosecutor noted that "[t]he needs and interests of the victim and society[,]" N.J.S.A. 2C:43-12(e)(7), favored prosecution over diversion.
The prosecutor further observed that defendant's admission that he was using heroin since age sixteen demonstrated "a continuing pattern of anti-social behavior[,]" N.J.S.A. 2C:43-12(e)(8), and that "the public need for prosecution" outweighed any supervisory treatment. N.J.S.A. 2C:43-12(e)(14). Noting McAllister's open indictment, the prosecutor concluded that the State's interests would be better served "through traditional criminal justice system procedures[,]" N.J.S.A. 2C:43-12(e)(15), and that defendant's admission into PTI "w[ould] adversely affect the prosecution of McAllister. See ...