On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-04-00769.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2011 - Decided Before Judges Parrillo and Espinosa.
Defendant L.M. appeals from his sentence and from an order that denied his application for admission into the pretrial intervention program (PTI) over the objection of the prosecutor. For the reasons that follow, we affirm the denial of his admission into PTI, reverse his sentence and remand.
In April 2009, defendant, a pharmacist, was indicted on two counts of second-degree distribution of prescription legend drugs, N.J.S.A. 2C:35-10.5a(4). These charges arose from two separate sales. On October 1, 2007, defendant sold one hundred Aricept pills, two hundred Avadart pills, three hundred Flomax pills and twenty-seven Zyrtec pills to a witness cooperating with authorities, for $1,014 in cash. On October 30, 2007, defendant again met with the cooperating witness and sold him three hundred Flomax pills, three hundred Singulair pills, three hundred Cozair pills, three hundred Detradia pills, two hundred Nexium pills, one hundred Plavix pills, one hundred Euista pills, and sixty Zegerid pills for $3,400.
Defendant applied for admission into PTI in May 2009. His application was denied by both the Bergen County Criminal Division Manager and the Bergen County Prosecutor. The prosecutor's letter denying his application set forth the following analysis of factors and conclusion:
In making our determination as to defendant's amenability to diversionary treatment, we have considered the following factors:
The facts of the case. (N.J.S.A. 2C:43-12e(2)). Defendant was engaged in the black market sale of prescription legend drugs.
On two occasions, Detectives observed defendant participate in covert meetings with the [cooperating witness] in parking lots. The pills were repackaged in plastic bags and secured within gift wrapped boxes to conceal the items from law enforcement detection. The actions of [defendant] clearly demonstrate a certain level of thought and planning underlying these transactions.
The motivation and age of the defendant. (N.J.S.A. 2C:43-12e(3)). Defendant was 73 years old at the time he performed these illegal drug transactions and committed the instant acts for money.
The crime constitutes part of a continuing pattern of defendant's anti-social behavior. (N.J.S.A. 2C:43-12e(8)). Defendant engaged in two separate illegal transactions involving the sale of black market pharmaceutical drugs which involved pre-planning. Several conversations preceded these transactions and defendant also exchanged a fax detailing the prescription drugs that he had available for sale. Defendant also repackaged the pills in plastic bags which he placed inside a box that was later gift wrapped to avoid suspicion from law enforcement. The charges contained in this indictment do not represent an isolated incident.
The harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program. (N.J.S.A. 2C:43-12e(17)). Our legislature has recognized the escalating problem of black market distribution of pharmaceutical drugs and enacted legislation to elevate the distribution of 100 or more dosage units to a second degree crime. To permit defendant to enter PTI would violate the PTI Guidelines as they relate to crimes that carry the presumption of incarceration.
Based upon my review of the defendant's case file and the supplemental information I have received from your office, I have determined that the early rehabilitative services and minimal supervisory treatment offered by the Pretrial Intervention Program could not reasonably be expected to deter future criminal behavior by the defendant or serve the interests of the State of New Jersey. Accordingly, the State hereby opposes defendant's application for admission to the Pretrial Intervention and joins the May 26, 2009 denial by the Program Director.
Defendant appealed the prosecutor's rejection of his application. After considering oral argument and the parties' submissions, the trial court concluded that defendant had failed to demonstrate by clear and convincing evidence that the prosecutor's decision ...