June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE SHABAY MALACHI, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, patent and gross abuse of discretion that should be reversed.
The question whether the State based its decision to reject a PTI application on appropriate factors is a question of law, State v. Nwobu, 139 N.J. 236, 247 (1995), which we review de novo. State v. Gandhi, 201 N.J. 161, 176 (2010).
The scope of judicial review of a prosecutor's decision to reject a defendant's application is severely limited. Nwobu, supra, 139 N.J. at 246. Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra, 178 N.J. at 82-83; State v. Brooks, 175 N.J. 215, 225 (2002); Nwobu, supra, 139 N.J. at 246. In addition, to warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).
"A prosecutor's discretion regarding a PTI application is not without its limits, however." Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225. That discretion has been compared to the discretion exercised by a trial court in imposing sentence, Brooks, supra, 175 N.J. 215, 228-29 (2002); State v. Pickett, 186 N.J. Super. 599, 604 (App Div. 1982), and is subject to the same standard of review. See State v. Roth, 95 N.J. 334, 363-64 (1984). When the Supreme Court believed it necessary to "give content to" the phrase applicable to the review of sentences, "clear abuse of discretion[,]" it announced a three-part test drawn from "analogous areas of appellate review[,]" id. at 363, to determine whether a sentencing decision is entitled to deference:
First, we will always require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence.
Second, we will always require that the factfinder apply correct legal principles in exercising its discretion. . . .
Third, we will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. [Id. at 363-64.]
The Court specifically noted, "We have used this three-part test in defining the phrase 'patent and gross abuse of discretion' by which we restricted appellate supervision of a decision to admit a defendant to a pretrial supervisory program." Id. at 364.
A threshold issue for evaluating the exercise of discretion is whether there is evidential support for the findings that form a basis for the determination under review. In State v. Dalziel, 182 N.J. 496, 501 (2005), the Court observed, "we will always require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence." (Internal citation and quotation marks omitted).
Within the sentencing context, the "fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989) (emphasis added); Roth, supra, 95 N.J. at 365-66. If the finding is not adequately supported, "[c]onsideration of an inappropriate aggravating factor violates the guidelines and thus is grounds for vacating sentence." State v. Pineda, 119 N.J. 621, 628 (1990).
Similarly, the prosecutor is required to evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines in determining whether an applicant should be admitted to PTI. Negran, supra, 178 N.J. at 80-81. As part of a determination that is "primarily individualistic in nature," id. at 80 (internal citation and quotation marks omitted), the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting N.J.S.A. 2C:43-12(b)); see also State v. Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). As the Brooks Court noted, a prosecutor's analysis in these circumstances "'is much like that which is made in connection with sentencing, where the so-called whole man is evaluated by the court in order to arrive at an appropriate disposition.'" 175 N.J. at 229 (quoting Pickett, supra, 186 N.J. Super. at 604). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584; see also Nwobu, supra, 139 N.J. at 249.
The prosecutor's statement of reasons for the rejection of defendant's PTI application fails to reflect the evaluation of all the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines and the "individualistic" determination that is required to merit our deference. Moreover, the sole criterion cited by the prosecutor in denying the application is not supported by the evidence.
As a preliminary matter, the prosecutor's objection letter fails to address any facts relating to defendant's "amenability to rehabilitation" and potential "responsiveness to rehabilitation." Defendant submitted a letter from Manuel Castellanos, the Youth Center Supervisor at Middle Earth, who wrote about defendant's activities there over a period of six years. Castellanos stated that defendant helped with everything from planning to cleaning; helped other youth with problems; was trusted sufficiently to be given "free reign for activities and projects[;]" that defendant is "very reliable, trustworthy, friendly and out going" and "a very big asset" to Castellanos and the center. It was reported that defendant regularly attends a program at Middle Earth that prepares youth for employment and college, as well as a drug counseling program. He graduated from high school where he received certifications for perfect attendance, culinary arts and office occupations. He submitted letters from neighbors, family friends and employers that spoke highly of his character. Although these facts are clearly relevant to a consideration of defendant's amenability and potential responsiveness to rehabilitation, the prosecutor does not acknowledge their existence.
Instead, the prosecutor relied exclusively upon Guideline 3(i) as justification for the rejection, characterizing defendant's conduct as "part of organized, continuing criminal activity." The Guideline relied upon states:
Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L. 1970, c. 226 ([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 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.
Thus, the Guideline identifies certain offenses as presumptively disqualifying, such as a first- or second-degree offense and offenses that are "part of organized criminal activity; or . . . part of a continuing criminal business or enterprise[.]" The nature of such offenses is only presumptively disqualifying, however, and the applicant retains an opportunity to demonstrate compelling reasons for his admission.
In this case, defendant was not charged with an offense that was presumptively disqualifying on its face. For defendant's drug offense to constitute a first- or second-degree offense, he would have had to possess at least five pounds of marijuana, see N.J.S.A. 2C:35-5(b)(10)(b), an amount eighty times greater than the amount for a fourth-degree offense, the offense with which he was charged.
Nonetheless, the prosecutor found that defendant's application should be rejected because the offense was "part of organized, continuing criminal activity." His support for this characterization is that defendant purchased the ounce of marijuana from a supplier and was going to sell it to others. The prosecutor cited no facts showing that defendant engaged in more than one purchase of marijuana or that he made any sales other than those from that one purchase. To conclude that defendant's conduct was "part of organized, continuing criminal activity," the prosecutor deconstructed the offense to its basic components: the act of getting the marijuana and preparing it for sale. Under this analysis, every possession of a drug with intent to distribute is a presumptively disqualifying offense, without regard to the amount of the drug, the number of transactions, the time period over which the offenses were committed or other relevant considerations. This result is at odds with the Legislature's stated intent that drug offenders should not be precluded from PTI. See Caliguiri, supra, 158 N.J. at 39.
We are satisfied that the facts cited by the prosecutor are insufficient to permit reliance upon Guideline 3(i) as a basis for rejecting defendant's PTI application. The prosecutor's exclusive reliance upon this factor was a clear error in judgment that renders his conclusion a patent and gross abuse of discretion. See Caliguiri, supra, 158 N.J. at 37; Wallace, supra, 146 N.J. at 584. Further, the failure to consider facts relevant to a determination of defendant's potential for rehabilitation constituted an additional defect in the prosecutor's review process. As that type of "[f]ailure to provide 'comprehensive and flexible' evaluation 'undermine[s] the efficacy of PTI[,]'" Caliguiri, supra, 158 N.J. at 39 (quoting State v. Leonardis I, 71 N.J. 85, 100 (1976)), we are further satisfied that the prosecutor's judgment "subvert[ed] the goals underlying pretrial intervention[,]" Flagg, supra, 171 N.J. at 572; Caliguiri, supra, 158 N.J. at 37; Bender, supra, 80 N.J. at 93, warranting reversal.
Reversed and remanded for further consideration of this matter by the trial court consistent with this opinion. See Caliguiri, supra, 158 N.J. at 37 ("[I]f a prosecutor fails to consider all the relevant factors or considers inappropriate factors, a court may remand the matter for further consideration."). We do not retain jurisdiction.