On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-08-00545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Parrillo and Espinosa.
The State appeals from an order that admitted defendant into the pretrial intervention program (PTI) over its objection. We affirm.
Defendant was the driver of an automobile that was stopped in June 2009 by a Warren Township police officer for a motor vehicle infraction. The officer observed a partially smoked marijuana cigarette and a plastic bag containing marijuana in the vehicle in plain view. After defendant declined to give his consent to a search, he and his passenger were arrested and the automobile was impounded. The police obtained a search warrant for the automobile and discovered approximately two pounds of marijuana, a digital scale, five empty plastic bags, a glass pipe and a grinder. A detective from the Somerset County Prosecutor's Office prepared an expert report in which he stated that the value of the marijuana seized was approximately $2000 to $4000 if sold in quantities of one pound and a value of $9920 to $14,880 if broken down into one-eighth ounce quantities.
Defendant was indicted for third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(11), and was also issued four summonses for motor vehicle violations, including possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1.
Defendant applied for PTI. The PTI Director recommended that he be admitted into PTI and cited the following reasons:
(1) "the crime . . . charged represent[s] an isolated event, the defendant does not have a record of criminal and penal violations, and the defendant does not present a substantial danger to others. N.J.S.A. 2C:43-12c(8); N.J.S.A. 2C:43-12c(9)" and (2) "A Somerset County TASC [Treatment Assessment Services for the Courts] evaluation determined that the defendant is Cannabis dependent and recommends a Level 1 Outpatient treatment program.*fn1 The defendant is currently enrolled in treatment at White Deer Run Treatment Center. The defendant tested negative for CDS at his TASC evaluation."
By letter dated November 13, 2009, the State rejected defendant's application pursuant to Rule 3:28. In setting forth its reasons, the State reviewed the criteria in N.J.S.A. 2C:43-12e and the guidelines in R. 3:28.
Noting that the impact on the prosecution of the co-defendant was a relevant consideration pursuant to Guideline 3(j), the prosecutor stated, Here, there is a co-defendant  who is charged with joint possession of the marijuana and the paraphernalia. While the recommendation lists truthful testimony against co-defendant, defendant did not give a statement; there is no indication what that statement will be. In this case, the bulk of the marijuana was recovered in the trunk of the car, which is registered to [defendant's mother]. . . . Thus, adverse consequences would flow to the State in its prosecution of co-defendant  by permitting defendant entry into PTI.
The prosecutor's comments regarding each of the criteria set forth in N.J.S.A. 2C:43-12e follow:
(1) The nature of the offense;
Here defendant is charged with possession with the intent to distribute. The distribution of drugs and its harmful effects are well known. It is not just this case, but the ripple effects that drug dealing has upon society. The consequences of the acts of those who become addicted to drugs that are dealt to them by individuals like defendant are felt not only by the user but that person's friends and families and the countless innocent third parties who become victims of burglaries and thefts. Drug distribution, whatever the drug may be, is quite serious.
(2) The facts of the case;
Defendant was in possession of a large quantity of marijuana - two pounds. This is not a situation where defendant is sharing a joint with a friend. This is a situation where defendant and co-defendant have an amount of marijuana that will yield thousands of joints and thousands of dollars.
(3) The motivation and age of the defendant;
[T]he State notes that defendant is 20 years old and . . . is enrolled in treatment. However, the State has been provided with no specifics.
(4) The desire of the complainant or victim to forego prosecution; Not applicable.
(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;
(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;
The State responded to factors five and six in one response:
Treatment for defendant's cannabis addiction is available through the criminal justice system. There is nothing unique about that. Those issues can be just as ...