On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-12-2770.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Graves.
Defendant, Brian Rapcavage, appeals from an order of the Law Division denying his admission into the Pretrial Intervention Program (PTI). R. 3:28. Following an initial denial by the Monmouth County Prosecutor's Office (MCPO or the prosecutor), the Law Division remanded the application to the MCPO for reconsideration. The MCPO again denied the application, and the Law Division affirmed. Defendant appealed, and we affirm.
These are the relevant facts. A Monmouth County Grand Jury returned an indictment charging defendant with three counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-(10a)(1); three counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-(5b)(5); three counts of third-degree possession of CDS within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7; three counts of third-degree distribution of CDS, N.J.S.A. 2C:35-(5b)(5); and three counts of third-degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7.
These charges arose out of three CDS sales that defendant made to members of the MCPO's Narcotic Strike Force during a series of undercover buys between April and June 2008. Defendant was not arrested at the time of these sales.
In July 2008, defendant enlisted in the United States Army. In August, Detective Sergeant Gary Freidoff attempted to arrest defendant at his home, but defendant's father advised Freidoff that defendant was away at basic training. In December 2008, while home on leave from the Army, defendant was stopped by officers from the Union Beach Police Department and apprehended on a fugitive warrant. Rolling papers, a green and brown leafy substance appearing to be marijuana and a small white pill were found on defendant's person. Defendant was then charged with possession of marijuana, N.J.S.A. 2C:35-10a(4); possession of drug paraphernalia, N.J.S.A. 2C:36-2; and possession of CDS, N.J.S.A. 2C:35-10a(1).*fn1
Following the grand jury indictment, defendant then applied to PTI. The Criminal Division Manager approved defendant's application, but the MCPO rejected the application. In its rejection memo, the prosecutor cited the facts of the case, N.J.S.A. 2C:43-12e(2), including the fact that defendant was a non-drug addicted individual who was selling narcotics for profit pursuant to the New Jersey Guidelines for Operation of Pretrial Intervention 3(i) (Guideline), Rule 3:28; and that defendant lacked motivation to succeed in PTI, N.J.S.A. 2C:43-12e(3). As evidence that defendant lacked motivation to succeed in PTI, the prosecutor noted that defendant had previously engaged in unlawful activity and was not deterred. Specifically, the prosecutor explained that "defendant was actively involved in the distribution of CDS" and pointed to the December 2008 arrest, which occurred after the offenses for which defendant applied to PTI and after defendant joined the Army.
Defendant appealed to the Law Division arguing that the State failed to consider his drug dependency and the dismissal of the December 2008 charges, and Judge Ronald Reisner remanded the case for the prosecutor to consider these issues.
Defendant then produced a letter from his expert, George M. Snider, M.A., who opined that defendant qualified as drug dependent. Defendant also produced a letter from Commanding Officer Brian Knutson indicating that it would be recommended that defendant be discharged under "honorable conditions" and that he would be ineligible for enlistment in the Army for a period of two years after discharge.
The MCPO again rejected defendant's application. Defendant again appealed, arguing that he could re-enlist in the Army if he enrolled in PTI, and denying his admission into PTI would ruin his military career. The prosecutor argued that upon reviewing defendant's concerns with Captain Bateman of the Army, it was revealed that there was no guarantee that ...