On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-09-00655.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 3, 2010 - Decided Before Judges Parrillo and Espinosa.
The State appeals from an order that admitted defendant, Sindad Ansari, into the pretrial intervention program (PTI) over its objection. We affirm.
Investigators from the Somerset County Prosecutor's Office made three controlled buys of marijuana from defendant. The aggregate quantity was less than two ounces and sold for a total of $530. After the third sale, defendant and his two co-defendants were arrested.
Defendant was indicted on five counts: fourth-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(12) and N.J.S.A. 2C:5-2; two counts of fourth-degree distribution of marijuana, N.J.S.A. 2c:35-5a(1) and N.J.S.A. 2C:35-5b(12); and one count of third-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11). The third-degree distribution count was subsequently amended to a fourth-degree offense. Defendant, who was nineteen years old with no prior criminal history, applied for admission to the PTI program. The PTI director recommended that he be admitted.
However, by letter dated November 30, 2009, the State rejected defendant's admission. In its letter, the State provided detailed information about the undercover buys. In the undercover agent's first contact with him, defendant instructed the agent how to contact him for weight, what codes to use when calling, and advised that he had the capability to supply ounces of marijuana. After a second purchase, the investigators obtained a search warrant for defendant's residence and executed it after a third sale. The items seized during the search included a digital scale and a grinder, which the State described as paraphernalia associated with distribution, a tin container with marijuana, five zip-lock bags of marijuana, and a zip-lock bag containing marijuana stems and seeds.
The State acknowledged that defendant was nineteen years old, with no known criminal record or history of violence, and that the offense was neither assaultive nor "traditional organized crime." The letter also purported to address the reasons for the State's rejection of defendant's application. Among the reasons offered, the State opined that it "could adversely affect the prosecution" of the two co-defendants to admit defendant into PTI but, aside from stating that defendant was more culpable, did not explain how that was so. Addressing the nature of the offense as one of the factors set forth in N.J.S.A. 2C:43-12(e), the letter recited the following:
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 the defendant are felt not only by the user but that person's friends and family and the countless innocent third parties who become victims of burglaries and thefts. Drug distribution, whatever the drug may be, is quite serious.
The State echoed this sentiment in addressing factor (7), the needs and interests of the victim and society, noting the "strong societal interest to prosecute those who deal drugs, especially when one considers, as noted above, the ripple effects of this behavior." Among the other factors discussed, the State said regarding factor (8) that "defendant's crime constitutes part of a continuing pattern of anti-social behavior."
Defendant appealed the rejection to the Law Division and provided the court with additional information in support of his application. The court remanded the matter to the State for reconsideration of the rejection based upon the new information.
After review, the State noted defendant's rehabilitation efforts, psychological treatment and other steps taken after his arrest but found that rejection remained warranted. Although describing the steps defendant had taken as "laudable," the State viewed the steps as "not so unique." The State also discounted defendant's substance abuse and psychological problems as unremarkable, stating:
Multitudes of defendants have drug and alcohol dependency issues. Multitudes of defendants have psychological issues. Multitudes of defendants are in need of career and educational counseling.
The State noted that these issues can be addressed through "[n]ormal criminal prosecution" and that the services available are not "provided more effectively through supervisory treatment[.]" The State's letter reflected no consideration, individualized to this defendant, as to his amenability to correction and ...