On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0754.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Messano and Espinosa.
Defendant appeals from an order that affirmed the prosecutor's rejection of his application to the Pre-Trial Intervention (PTI) program.
On the evening of September 27, 2007, Bound Brook police officers responding to a citizen complaint of drug activity found defendant and his co-defendant, Jeffrey Balaam, in the stairwell of the building where defendant lived. One of the officers observed defendant reaching into his front right pants pocket and instructed him to remove his hand from his pocket. The officer conducted a pat down of the pocket, at which time defendant stated, "all right, man, you got me." Upon inquiry from the officer, defendant stated, "my weed, man, my weeds in there, you got it." The officer arrested defendant and retrieved a bag of marijuana as well as eight smaller plastic bags of marijuana and twelve empty small baggies in defendant's left front pocket.
After receiving Miranda*fn1 warnings, defendant volunteered that he had additional marijuana in his bedroom under his mattress and consented to a search which resulted in the recovery of additional marijuana. Defendant also admitted that he purchased an ounce of marijuana, broke some off and packaged it so he could sell it for ten dollars per bag.
An indictment was returned, charging defendant with a fourth-degree offense, 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), and third-degree possession with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7.
Defendant applied for admission into PTI on November 7, 2007. He had no prior convictions and was nineteen years old.
The Criminal Division Manager found defendant to be an appropriate candidate for PTI and approved his application. However, by letter dated December 3, 2007, the prosecutor objected to defendant's admission into PTI. In providing reasons for the objection, the prosecutor cited Guideline 3(i), that "defendant's conduct was part of organized, continuing criminal activity[,]" and Guideline 3(j), that "PTI diversion of the defendant will deprive the State of truthful testimony against co-defendant Balaam, which the State will require as a condition of any guilty plea."
Defendant appealed from this decision and the trial court directed the prosecutor's office to reconsider its objection. By letter dated August 21, 2008, the prosecutor responded that he continued to object to defendant's admission pursuant to Guideline 3(i) "because defendant's conduct was part of organized, continuing criminal activity." The letter continued:
Here, defendant was arrested in possession of multiple bags of marijuana, along with empty bags. Defendant confessed that he traveled to Newark to buy the marijuana, and then returned to Bound Brook and repackaged the marijuana to sell it to others. Based on this evidence, it is apparent that defendant is involved in the distribution of marijuana. Unless defendant maintains his own marijuana grow, the nature of the business requires that defendant obtain that marijuana from a supplier and then, in turn, sell it to his customers. Accordingly, PTI diversion is not an appropriate resolution of defendant's charges.
After the prosecutor's rejection of his application, defendant entered guilty pleas to the counts against him in the indictment pursuant to a plea agreement. He was sentenced to three years' probation and appropriate fines and penalties. As a condition of probation, the court ordered defendant to serve 180 days in jail and suspended that portion of the sentence.
Defendant appealed from this decision to the Law Division, which affirmed the prosecutor's decision to deny defendant's application. In this appeal, defendant argues that the prosecutor's rejection of his application was an arbitrary, ...