On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-03-0592.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
On leave granted, the State appeals from a determination of the Law Division that overturned the rejection of an application by defendant Lamar Woodward for participation in the Hudson County Drug Court program. The Drug Court reasoned that (1) the prosecutor's rejection of defendant was a patent and gross abuse of discretion because it was based on unreliable information relating to whether defendant poses a substantial threat to the community due to his alleged membership in a street gang, and
(2) the prosecutor's consent is not required for defendant's admission to the Drug Court program under track two. State v. Clarke, 203 N.J. 166, 176 (2010). After careful consideration of the record and the applicable law, we affirm.
According to the police department investigative report prepared by Jersey City Police Officer J.D. Theodoroleas, on December 19, 2009, officers were interviewing individuals in a public hallway at a housing complex concerning a homicide which occurred the night before, when defendant entered the hallway with his right hand under the front of his jacket. Officer Theodoroleas ordered defendant to show his hands, but defendant did not comply, prompting other officers to stop defendant and search him for weapons. While he was being searched, defendant stated, "I ain't got no gun, I just got a couple of bottles[,]" which the officers understood to be slang for small glass vials used to hold drugs. At that point, defendant opened his hand, in which he held money and glass vials containing suspected cocaine and suspected heroin.
Subsequently, a grand jury returned Indictment No. 10-03-0592, charging defendant with two counts of possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10(a)(1) (counts one and five); two counts of possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (counts two and six); two counts of possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); and two counts of possession of CDS with intent to distribute within 500 feet of real property comprising a public housing facility, a public park, or a public building, N.J.S.A. 2C:39-5(d) (counts four and eight).
On March 18, 2010, defendant filed an application to participate in the Hudson County Drug Court program. The Hudson County prosecutor rejected that application.*fn1 The prosecutor's office indicated its denial was predicated upon defendant's two prior convictions of possession of CDS with intent to distribute within 1000 feet of school property and the significant threat he poses to the community as a member of the Sex, Money, Murder sect of the Bloods' gang.
Defendant filed an appeal with the Drug Court judge in the Law Division, and briefs were submitted by both parties. After considering the respective positions advanced, the court found that the prosecutor's rejection of defendant's application for Drug Court constituted a patent and gross abuse of discretion. The judge explained:
The Court is going to find that based on the statements that I've just made before, in addition to the fact that minus the gang part that the Court finds that there is a patent gross abuse of discretion regarding this individual not being admitted into Drug Court where others have been admitted into Drug Court with a similar[,] if not worse record. Other than the gang affiliation proposition.
So therefore, the Court is going to find that in track one that there was a patent gross abuse of discretion. And also because of the danger part is, danger to the community is a part of track two, that's why I'm going to deal with, I'm dealing with both tracks.
However, for track two there is not enough information to show that there is a significant threat to the community.
The court stayed its preliminary decision, however, and a continuation of the hearing was scheduled. In the interim, defendant was evaluated by a substance abuse evaluator and determined to be clinically suitable for the Drug Court program. The substance abuse evaluator recommended long-term inpatient care.
At the start of the resumed hearing, the State offered to present evidence in camera concerning the State's position that defendant is a gang member; however, the State's proffer, which defense counsel characterized as an improper enlargement of the reasons previously given for rejecting defendant from the program, was so vague the court declined to conduct an in-camera inquiry. In that regard, the court inquired of the assistant prosecutor if the proffered information to be produced in camera would be the same as that which was included in the State's brief. The assistant prosecutor responded, "It could be, Your Honor, I don't know. I don't know how much information was given to me from [the] gang intelligence unit or how much information could be given to me. There might be additional questions that could be asked in camera, by Your Honor to our detective."
At another point, the court asked, "But for the gang, alleged gang membership, would the State be, [its] position be that Mr. Woodward would be a[n] eligible candidate?" To that inquiry, the assistant prosecutor replied, "Respectfully, Your Honor, the State chooses not to answer that question based on the fact that it is part of the formula that we use to assess the files."
Under such circumstances, the court did not conduct an in-camera review and, instead, concluded the prosecutor's rejection of defendant from the Drug Court program, based on an alleged gang affiliation that defendant denies, was unsubstantiated. More specifically, the court found there were no records indicating defendant had self-identified as a Blood, and no report of what gang paraphernalia may have been observed or seized from him. The court also noted that a nickname or "street name" does not demonstrate gang membership. Citing further the State's unwillingness to divulge certain factors used to deny defendant's application, the court found "there was a clear abuse of discretion under track one," and accordingly, ordered that defendant be admitted to the Drug Court ...