STATE OF NEW JERSEY v. SINDAD ANSARI

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4978-09T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SINDAD ANSARI,

Defendant-Respondent.

________________________________________________________________

December 28, 2010

Submitted November 3, 2010 - Decided

Before Judges Parrillo and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-09-00655.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for appellant (William A. Guhl, Assistant Prosecutor, on the brief).

Aiello, Harris, Devero, Marth & Schiffman, P.C., attorneys for respondent (James R. Pastor, on the brief).

PER CURIAM

The State appeals from an order that admitted defendant, Sindad Ansari, into the pretrial intervention program (PTI) over its objection. We affirm.

Investigators from the Somerset County Prosecutor's Office made three controlled buys of marijuana from defendant. The aggregate quantity was less than two ounces and sold for a total of $530. After the third sale, defendant and his two co-defendants were arrested.

Defendant was indicted on five counts: fourth-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(12) and N.J.S.A. 2C:5-2; two counts of fourth-degree distribution of marijuana, N.J.S.A. 2c:35-5a(1) and N.J.S.A. 2C:35-5b(12); and one count of third-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11). The third-degree distribution count was subsequently amended to a fourth-degree offense. Defendant, who was nineteen years old with no prior criminal history, applied for admission to the PTI program. The PTI director recommended that he be admitted.

However, by letter dated November 30, 2009, the State rejected defendant's admission. In its letter, the State provided detailed information about the undercover buys. In the undercover agent's first contact with him, defendant instructed the agent how to contact him for weight, what codes to use when calling, and advised that he had the capability to supply ounces of marijuana. After a second purchase, the investigators obtained a search warrant for defendant's residence and executed it after a third sale. The items seized during the search included a digital scale and a grinder, which the State described as paraphernalia associated with distribution, a tin container with marijuana, five zip-lock bags of marijuana, and a zip-lock bag containing marijuana stems and seeds.

The State acknowledged that defendant was nineteen years old, with no known criminal record or history of violence, and that the offense was neither assaultive nor "traditional organized crime." The letter also purported to address the reasons for the State's rejection of defendant's application. Among the reasons offered, the State opined that it "could adversely affect the prosecution" of the two co-defendants to admit defendant into PTI but, aside from stating that defendant was more culpable, did not explain how that was so. Addressing the nature of the offense as one of the factors set forth in N.J.S.A. 2C:43-12(e), the letter recited the following:

The distribution of drugs and its harmful effects are well known. It is not just this case, but the ripple effects that drug dealing has upon society. The consequences of the acts of those who become addicted to drugs that are dealt to them by individuals like the defendant are felt not only by the user but that person's friends and family and the countless innocent third parties who become victims of burglaries and thefts. Drug distribution, whatever the drug may be, is quite serious.

The State echoed this sentiment in addressing factor (7), the needs and interests of the victim and society, noting the "strong societal interest to prosecute those who deal drugs, especially when one considers, as noted above, the ripple effects of this behavior." Among the other factors discussed, the State said regarding factor (8) that "defendant's crime constitutes part of a continuing pattern of anti-social behavior."

Defendant appealed the rejection to the Law Division and provided the court with additional information in support of his application. The court remanded the matter to the State for reconsideration of the rejection based upon the new information.

After review, the State noted defendant's rehabilitation efforts, psychological treatment and other steps taken after his arrest but found that rejection remained warranted. Although describing the steps defendant had taken as "laudable," the State viewed the steps as "not so unique." The State also discounted defendant's substance abuse and psychological problems as unremarkable, stating:

Multitudes of defendants have drug and alcohol dependency issues. Multitudes of defendants have psychological issues. Multitudes of defendants are in need of career and educational counseling.

The State noted that these issues can be addressed through "[n]ormal criminal prosecution" and that the services available are not "provided more effectively through supervisory treatment[.]" The State's letter reflected no consideration, individualized to this defendant, as to his amenability to correction and potential responsiveness to rehabilitation despite his acknowledged "laudable" efforts.

The State did not invoke the presumption against acceptance applicable to defendants charged with a crime that is "part of a continuing criminal business or enterprise." R. 3:28, Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, Guideline 3(i) at 1082 (2011). However, in adhering to its decision to reject defendant, the State also stated that it "cannot overlook the continual course of criminal conduct committed by this defendant." The State observed that defendant's instructions and statements to the undercover agent regarding future sales and the seizure of items used for distribution supported a conclusion that defendant intended to continue to distribute marijuana in ever increasing amounts. Finally, the State rejected as irrelevant defendant's argument that a conviction could result in his deportation.

The court heard oral argument on defendant's appeal and thereafter issued a written opinion and order that admitted defendant to PTI over the State's objection. The court acknowledged that the possibility of deportation as a collateral consequence of criminal prosecution is not among the criteria it should consider in deciding to grant admission to PTI over the State's objection. However, recognizing that "the main objective" of PTI was "to divert 'individuals with high rehabilitative prospects from the traditional channels of criminal process[,]'" the court found that this case fell squarely within that objective. The court observed, "Defendant's enrollment in several treatment programs undoubtedly qualifies him as an individual with 'high rehabilitative prospects' as he has voluntarily sought out treatment for the issues which led to his arrest . . . ." While acknowledging the deference to be accorded to the prosecutor's decision on PTI applications, the court concluded that the rejection of defendant constituted a patent and gross abuse of discretion that warranted defendant's admission over the objection of the State.

As all parties agree, 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), and the prosecutor's decision is accorded 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). In short, it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting State v. Leonardis, 73 N.J. 360, 380 (1977) (Leonardis II)). 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). 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 County Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).

The question presented by the State's appeal here is whether the State's decision to reject defendant from PTI, even after a remand to consider additional information, constituted such a patent and gross abuse of discretion or a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention."1 We conclude that it does.

Generally, the defendant who seeks to overcome a prosecutor's rejection of his admission into PTI must satisfy the heavy burden of showing clearly and convincingly that the prosecutor's decision constitutes a patent and gross abuse of discretion. State v. Negran, 178 N.J. 73, 82 (2002); State v. Nwobu, 139 N.J. 236, 246 (1995) (citations omitted). "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 courts should exercise independent judgment in fulfilling their responsibility to maintain the integrity and proper functioning of PTI as a whole.'" State v. Watkins, 193 N.J. 507, 520-21 (2008) (quoting State v. Dalglish, 86 N.J. 503, 510 (1981)).

"A prosecutor's discretion in respect of a PTI application is not without its limits[.]" Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002). The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (citations omitted). But, most important for the rehabilitative goals of PTI, the prosecutor's assessment must be "individualized," evaluating the individual defendant's "'amenability to correction' and potential 'responsiveness to rehabilitation[.]'" Watkins, supra, 193 N.J. at 520. See also State v. Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). To this end, the prosecutor's statement of reasons for rejection "may not simply 'parrot' the language of relevant statutes, rules, and guidelines[,]" Nwobu, supra, 139 N.J. at 249, and "must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584.

While we recognize that the decision as to which offenses to prosecute vigorously is a prosecutorial function, that policy determination cannot trump the prosecutor's obligation to conduct such a review. In commenting upon the nature of the offense, the State employed language that we can only regard as boilerplate to be applied in cases involving drugs.2 The parroting of language regarding "the ripple effects that drug dealing has upon society" adds nothing to what must be an assessment that is individualized to the defendant and the facts of his case.

In such an assessment, it is evident that the prosecutor must evaluate a defendant's potential for rehabilitation. As the trial court noted, defendant voluntarily enrolled in several treatment programs. He began counseling services even before he was indicted. He submitted to an evaluation at an accredited intensive outpatient substance abuse treatment center where he was found to meet the DSM-IV diagnostic criteria for cannabis dependence. Defendant entered and successfully completed a chemical dependency intensive outpatient program (IOP) that consisted of daily educational, presentation, and group therapy sessions and required attendance at three to five Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings per week. After the cannabis left his system, his drug screens were negative for all mood-altering substances. He attended daily AA/NA meetings and obtained both a sponsor and a home group. He continued treatment with admission into a Mentally Ill Chemically Addicted track of the IOP's adult psychiatric program and continued to participate in the family program. Reports from the IOP showed that, despite the usual initial denial of his chemical dependence, defendant demonstrated "very satisfactory" progress, "quickly became a very active and motivated group member," and "verbaliz[ed] a prodigious gain of knowledge, understanding, and insight into the disease of Chemical Dependency, and the Recovery Process." Defendant also sought psychological assessment and treatment. In his report, the psychologist described defendant as "very committed to both substance abuse treatment and his current psychotherapy[,]" "highly motivated to change[,]" and stated that "his prognosis is highly favorable with continued treatment." Finally, defendant also sought and obtained career counseling. The court found such information to be evidence that defendant was an individual with "high rehabilitative prospects."

Clearly, defendant's efforts were substantial, and were even described as "laudable" by the State. Yet, the State utterly failed to evaluate such information in terms of defendant's "amenability to correction" and potential "responsiveness to rehabilitation." See N.J.S.A. 2C:43-12b; Watkins, supra, 193 N.J. at 520. Its consideration of defendant's efforts can fairly be characterized as dismissive, stating only, "they are not so unique." Even after a remand to consider defendant's substantial efforts, the State failed to conduct an individualized assessment of defendant's rehabilitative potential. The State's decision was therefore flawed by both a failure to give any cognizable weight to defendant's efforts at rehabilitation and an inordinate reliance upon the "continuing" nature of his offense. This weighing process was sufficiently inappropriate to amount to a "patent and gross abuse of discretion," Caliguiri, supra, 158 N.J. at 37, and a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg, supra, 171 N.J. at 572.

1 The State also argues that the trial court improperly cited an unpublished opinion in its decision. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

2 In a case we recently reviewed, State v. Anasti, No. A-3172-09 (App. Div. Oct. 12, 2010), the prosecutor rejected the PTI application of a defendant charged with possession of marijuana with intent to distribute and the trial court admitted the defendant over the prosecutor's objection. The prosecutor used virtually verbatim language in its statement of reasons to explain the rejection.