September 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 rejection from the PTI program.
R. 3:28, Guideline [3(i)] provides that "[a] defendant charged with sale or dispensing of Schedule I or II narcotic drugs as defined in N.J.S.A. 24:21-1 et seq. by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program . . . .
The letter went on to indicate that although "[d]efendant admits to self-medicating with marijuana," she also "sold marijuana on several occasions to an undercover police officer introduced to her by the CI. This fact suggests that she was willing to expand her business beyond simply distributing to friends and sharing her marijuana with them, as she asserts."
The prosecutor also went on to state that "the offense appears to be part of an ongoing criminal business, pursuant to Rule 3:28, Guideline 3(i)." The prosecutor explained the rule applied because the search "found evidence of ongoing CDS distribution, including plastic baggies, a scale, a grinder, and a price list. These materials suggest that defendant was engaged in the business of selling marijuana."
Defendant's motion to appeal the PTI rejection was heard and denied on December 7, 2009. Her application for reconsideration was heard and denied on May 17, 2010.
The purpose of PTI "is to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system." State v. Watkins, 193 N.J. 507, 513 (2007). The statutory criteria for eligibility are found in Rule 3:28 and N.J.S.A. 2C:43-12. Despite the intent to expeditiously address those criminal cases in which there is a likelihood that the impetus for criminal conduct can be addressed through "participation in supervisory treatment," N.J.S.A. 2C:43-12(e)(6), Guideline 3(i) contains presumptions against acceptance into PTI for defendants whose crimes fall into certain specified categories. Watkins, supra, 193 N.J. at 519 (citing State v. Baynes, 148 N.J. 434, 442 (1997)). In order to overcome those presumptions against admission, a defendant must establish compelling reasons. State v. Nwobu, 139 N.J. 236, 252 (1995).
Generally, in order to overturn a prosecutor's rejection from PTI, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion. Nwobu, supra, 139 N.J. at 246 (citing State v. Kraft, 265 N.J. Super. 106, 112 (App. Div. 1993)); State v. Motley, 369 N.J. Super. 314, 321 (App. Div. 2004). This heavy burden is difficult to overcome. Nwobu, supra, 139 N.J. at 246-47.
As our Supreme Court has reiterated, however:
Where the prosecutor has made a legal error, there is a relatively low threshold for judicial intervention because "[t]hese instances raise issues akin to questions of law, concerning which court should exercise independent judgment in fulfilling their responsibility to maintain the integrity and proper functioning of PTI as a whole." [Watkins, supra, 193 N.J. at 521 (citing State v. Dalglish, 86 N.J. 503, 510 (1981)).]
In our view, legal errors have occurred here, thereby requiring defendant to meet a "relatively low threshold for judicial intervention." Ibid.
First, as stated in the prosecutor's initial discussion of Guideline 3(i), a person who is not drug dependent is ordinarily presumed not to be an appropriate candidate for enrollment in PTI. But in that letter the prosecutor goes on to discuss defendant's admission that she used marijuana habitually; in fact, the letter states that she "self-medicate[d]." In other words, defendant's drug abuse is acknowledged simultaneously with her rejection from the program because she is not drug dependent.
The prosecutor's letter does not address defendant's consumption of numerous medications, including Alprazolam, at the time of arrest, and Xanax at the present time. It is not clear from the record if the information was provided prior to the office's consideration of her application. It is clear that the rejection letter was written before the prosecutor had the opportunity to review a report dated November 30, 2009, from defendant's mental health provider, which includes a diagnosis of "cannabis dependence (currently in remission)." In any event, the prosecutor applied a portion of Guideline 3(i) to bar defendant's admission as a dealer for profit when it seems defendant is a drug dependent person.
Second, the prosecutor concluded that defendant's conduct constituted part of a continuing criminal enterprise pursuant to Guideline 3(i). This is not legally correct either. That defendant engaged in three or more drug sales does not in and of itself make her conduct a "repetitive criminal activity . . . ." Watkins, supra, 193 N.J. at 524. Defendant's crime did not involve a web of other associates beyond the purchasers. See id. at 525. Although defendant was indisputably engaged in the enterprise of selling drugs, and bought the marijuana she sold from someone, the length of time during which she engaged in such activity is unknown. The substantial proofs the State possesses about her criminal conduct relate to three drug transactions over two months. That is insufficient to conclude that defendant was presumptively inadmissible because of her involvement in a continuing criminal enterprise. See Watkins, supra, 193 N.J. at 524-25.
In the absence of presumptions against admission, namely, that defendant was a for-profit drug dealer and not drug dependent, and that she was engaged in an ongoing criminal enterprise, she is entitled to have her application given individualized scrutiny. See Watkins, supra, 193 N.J. at 527.
Accordingly, we reverse the order denying admission and remand the matter to the prosecutor for reconsideration of her application in light of the within discussion.
Reversed and remanded.