On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-0097.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Fisher and Baxter.
The State appeals from a February 25, 2011 Law Division order that overruled the prosecutor's objection to defendant's participation in the pretrial trial (PTI) program, and ordered defendant's enrollment in the program effective March 14, 2011. We agree with the State's contention that the judge impermissibly substituted his judgment for that of the prosecutor, and failed to afford the prosecutor's decision the strong presumption of validity to which it is entitled by law. We reverse.
Defendant was charged with fourth-degree possession of less than one ounce of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12) (count one); and third-degree possession of less than one ounce of marijuana with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count two). Before the charges were presented to the grand jury, defendant applied for admission to the PTI program. By letter of November 12, 2010, the Union County Prosecutor's Office rejected defendant's application, relying principally on State v. Caliguiri, 158 N.J. 28 (1999). The prosecutor's November 12, 2010 rejection letter asserted that in Caliguiri, the Court held that a defendant charged with a violation of N.J.S.A. 2C:35-7 is "presumptively ineligible" for admission to the PTI program, and is required to show "compelling reasons" to overcome the presumption against admission to PTI. The State notified defendant that because he was charged with a violation of that statute, he was presumptively barred from participating in PTI unless he presented compelling reasons sufficient to overcome the adverse presumption; and he had not done so.*fn1
The State additionally asserted in its rejection letter that any benefit to defendant resulting from his diversion into PTI was outweighed by the "interest of society in prosecuting and deterring this type of conduct[,] . . . particularly when it takes place close to school property."
The State's letter of rejection closed with its observation that the State had considered the fact that defendant was twenty-three years old and had incurred no prior arrests or convictions. Nonetheless, there was "nothing extraordinary, unusual or persuasive enough in his background to overcome the serious nature of the offense and the presumption against his admission into PTI."
On November 23, 2010, defendant filed an appeal from the denial of PTI. At the conclusion of the hearing, the judge overruled the prosecutor's objection to PTI. The judge recognized that Guideline 3(i)(4) was applicable and creates a presumption against admission to PTI for an applicant such as defendant, charged with a drug distribution offense. Guideline 3(i)(4) provides:
A defendant charged with a . . . sale or dispensing of Schedule I or II narcotic drugs as defined in [N.J.S.A. 2C:35-5(b)(1) to (14)] by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable. [(Emphasis added).]
After reading Guideline 3(i)(4) verbatim, the judge held that the presumption against PTI eligibility established by Guideline 3(i)(4) was no longer applicable in light of the recent legislative amendment to N.J.S.A. 2C:35-7 (school zone statute). In particular, the judge noted that the January 12, 2010 amendment to N.J.S.A. 2C:35-7 authorizes a judge to "waive or reduce the minimum term of parole ineligibility required under [N.J.S.A. 2C:35-7(a)] or place the defendant on probation." See N.J.S.A. 2C:35-7(b)(1).*fn2 The judge reasoned that because the Legislature had seen fit to "loosen" the mandatory parole ineligibility period for persons convicted ...