On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-05-0453.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued September 2, 2011
Before Judges Alvarez and Nugent.
Defendant P.A.C. appeals the May 17, 2010 denial of a motion for reconsideration of the denial of her pretrial intervention (PTI) application, N.J.S.A. 2C:43-12 to -22. For the reasons that follow, we reverse and remand for the prosecutor to consider defendant's application in accord with this opinion.
Defendant, a thirty-seven-year-old college graduate, suffers from a host of chronic diseases including a neurological "dysfunction" requiring use of a wheelchair for mobility. She has been a resident at various long-term care facilities over the years, and at the time of the event which resulted in the indictment against her, resided in a specialized Department of Housing and Urban Development/Federal Housing Administration complex designed to house special needs tenants. Defendant is visited by home health aides on a daily basis.
In addition to her physical challenges, defendant has been diagnosed with major depressive disorder and anxiety. Her prescribed medications as of June 15, 2009, include: Dicyclomine, Lomotil, Omeprazole, Lasix, Potassium chloride, Compazine, Lyrica, Luvox, BuSpar, Adderall, Voltaren, Requip, Skelaxin, Advair, Imitrex, Xanax, Seroquel, Percocet, Acidophilous, Calcium with Vitamin D, Flora-Q, and Zinc.*fn1 This medication regimen was essentially the same at the time of her arrest, except that she was then also prescribed Alprazolam.
A confidential informant (CI) advised the Burlington County Prosecutor's Office Gangs, Guns, and Narcotics Task Force during the week of January 11, 2009, that a woman named "Patty," defendant, was selling marijuana and Alprazolam from her apartment. The CI claimed he bought both drugs from her, and that he had seen as much as fourteen to twenty-eight grams of marijuana at one time on the premises. The CI said he could contact Patty any time during the day or night to make purchases, and she would be willing to sell "at any hour." Acting on the tip, an undercover agent, accompanied by the CI, purchased marijuana from defendant on January 18, 2009. The undercover agent made two additional buys of marijuana and Alprazolam on January 26, 2009, and of Alprazolam only on February 5, 2009. Based on these purchases, a warrant issued and on February 13, 2009, a search was conducted of defendant's apartment.
Investigators seized marijuana, baggies, a scale, a silver grinder, rolling papers, and a price list found posted on an interior wall of defendant's apartment. As a result, defendant was indicted for two third-degree counts of drug distribution, N.J.S.A. 2C:35-5(a)(1) and 5(b)(13), one count of fourth-degree drug distribution, N.J.S.A. 2C:35-5(a)(1) and 5(b)(12), three counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(13), one count of fourth-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(12), and fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3). Once rejected from PTI, defendant filed a motion to compel admission and an application for reconsideration, both of which were denied. She thereafter entered a guilty plea to fourth-degree possession of marijuana on May 17, 2010, and was sentenced to a year of probation on August 18, 2010.
Defendant's PTI application was preliminarily approved by the criminal division manager's office. On August 26, 2009, however, the prosecutor denied defendant's admission to the program. The rejection letter stated in pertinent part that:
The nature of the offense and facts of this case, as detailed above, warrant defendant's ...