STATE OF NEW JERSEY v. BRIAN S. RAPCAVAGE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5008-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN S. RAPCAVAGE,

Defendant-Appellant.

________________________________________________________________

May 4, 2011

Submitted April 12, 2011 - Decided

Before Judges Carchman and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-12-2770.

Robert Carter Pierce, attorney for appellant.

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Brian Rapcavage, appeals from an order of the Law Division denying his admission into the Pretrial Intervention Program (PTI). R. 3:28. Following an initial denial by the Monmouth County Prosecutor's Office (MCPO or the prosecutor), the Law Division remanded the application to the MCPO for reconsideration. The MCPO again denied the application, and the Law Division affirmed. Defendant appealed, and we affirm.

These are the relevant facts. A Monmouth County Grand Jury returned an indictment charging defendant with three counts of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-(10a)(1); three counts of third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-(5b)(5); three counts of third-degree possession of CDS within 1,000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7; three counts of third-degree distribution of CDS, N.J.S.A. 2C:35-(5b)(5); and three counts of third-degree distribution of CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7.

These charges arose out of three CDS sales that defendant made to members of the MCPO's Narcotic Strike Force during a series of undercover buys between April and June 2008. Defendant was not arrested at the time of these sales.

In July 2008, defendant enlisted in the United States Army. In August, Detective Sergeant Gary Freidoff attempted to arrest defendant at his home, but defendant's father advised Freidoff that defendant was away at basic training. In December 2008, while home on leave from the Army, defendant was stopped by officers from the Union Beach Police Department and apprehended on a fugitive warrant. Rolling papers, a green and brown leafy substance appearing to be marijuana and a small white pill were found on defendant's person. Defendant was then charged with possession of marijuana, N.J.S.A. 2C:35-10a(4); possession of drug paraphernalia, N.J.S.A. 2C:36-2; and possession of CDS, N.J.S.A. 2C:35-10a(1).1

Following the grand jury indictment, defendant then applied to PTI. The Criminal Division Manager approved defendant's application, but the MCPO rejected the application. In its rejection memo, the prosecutor cited the facts of the case, N.J.S.A. 2C:43-12e(2), including the fact that defendant was a non-drug addicted individual who was selling narcotics for profit pursuant to the New Jersey Guidelines for Operation of Pretrial Intervention 3(i) (Guideline), Rule 3:28; and that defendant lacked motivation to succeed in PTI, N.J.S.A. 2C:43-12e(3). As evidence that defendant lacked motivation to succeed in PTI, the prosecutor noted that defendant had previously engaged in unlawful activity and was not deterred. Specifically, the prosecutor explained that "defendant was actively involved in the distribution of CDS" and pointed to the December 2008 arrest, which occurred after the offenses for which defendant applied to PTI and after defendant joined the Army.

Defendant appealed to the Law Division arguing that the State failed to consider his drug dependency and the dismissal of the December 2008 charges, and Judge Ronald Reisner remanded the case for the prosecutor to consider these issues.

Defendant then produced a letter from his expert, George M. Snider, M.A., who opined that defendant qualified as drug dependent. Defendant also produced a letter from Commanding Officer Brian Knutson indicating that it would be recommended that defendant be discharged under "honorable conditions" and that he would be ineligible for enlistment in the Army for a period of two years after discharge.

The MCPO again rejected defendant's application. Defendant again appealed, arguing that he could re-enlist in the Army if he enrolled in PTI, and denying his admission into PTI would ruin his military career. The prosecutor argued that upon reviewing defendant's concerns with Captain Bateman of the Army, it was revealed that there was no guarantee that defendant would be able to re-enlist. The judge affirmed the denial of defendant's entry into PTI.

In his oral opinion the motion judge explained:

In this case, the Prosecutor relied upon two factors to reject the application. The first is factor 12(e)(2), which is found in N.J.S.A. 2C:43-12(e)(2). That factor is the facts of the case. In this case . . . the facts of the case show that over a period of several months, the defendant was actively involved in the distribution of CDS. He had the ability and the wherewithal[] to obtain several types of drugs, and successfully negotiate them, and sell them to members of the public. This was not an isolated event, but an ongoing for profit drug distribution event.

Guideline 3(i) states that [if] the defendant is charged a first or second degree offense, or the . . . dispensing of Schedule 1 or 2 narcotic drugs by a person not drug dependent, that person should not ordinarily be considered for enrollment into PTI.

The defendant argues that because the Prosecutor arbitrarily determined that the defendant was not drug dependent that this was an improper factor. On the other hand, the statute does provide that it's either or. It doesn't necessarily mean that even if he were drug dependent that the Prosecutor could not properly apply this factor.

In this case, the facts of this case, the three drug sales over a period of time was properly relied upon by the Prosecutor, even if the defendant demonstrates that he had used drugs in his youth, and that the CDS sales were only to support his own habit. . . . [B]ased on this factor, there has been no showing that this was either an abuse of discretion, or arbitrary, or capricious determination.

Similarly, the second factor that the Prosecutor relied upon in this case was . . . . under 2C:43-12(e)(3). The . . . Prosecutor, in the denial, indicated that the defendant lacks the motivation to succeed in PTI. His prior contacts with the court have failed to deter him. He continues to offend. He has been charged, subsequent to the present offense, for which he applies to PTI. . . . [H]e was acquitted of that charge. Nonetheless . . . there were two prior contacts with the law. Under the case law, it does not mean that either arrests or charges that . . . do not result in Superior Court convictions of first, second, third, or fourth degree crimes cannot be considered by the Prosecutor in determining the PTI application. They clearly can, under the case law.

. . . .

Accordingly, under these circumstances, the Court does not find that the Prosecutor's decision in this case was arbitrary, capricious, or unreasonable.

Defendant then pled guilty to third-degree distribution of CDS within a school zone, N.J.S.A. 2C:35-7(b) and reserved the right to seek a sentence of non-custodial probation. His motion for probation was granted, and defendant was sentenced to a three-year probation term conditioned on serving 180 days in the county jail.

On appeal defendant argues that 1) the trial court erred in not ordering defendant's enrollment into PTI over the State's objection; 2) that the prosecutor employed a "blanket policy" rejecting all PTI applicants charged with a school zone offense; and 3) the trial court failed to consider the recent amendment to N.J.S.A. 2C:35-7.

We first restate the basic principles governing our review of the State's denial of admission to PTI. We afford prosecutors "wide latitude" in selecting those to admit to PTI, and our review of such rejection is "severely limited." State v. Mosner, 407 N.J. Super. 40, 56 (App. Div. 2009) (citations and quotations omitted). To set aside a prosecutorial denial of admission to PTI, a defendant must "clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Id. at 55 (citations and quotations omitted). Patent and gross abuse of discretion requires that a decision "'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" State v. Watkins, 193 N.J. 507, 520 (2008) (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979).

Here, the motion judge correctly concluded that there was no gross abuse of discretion. As the motion judge explained, the prosecutor evaluated the appropriate factors in rejecting defendant's application.

In applying N.J.S.A. 2C:43-12(e)(2), which requires prosecutors to consider the facts of the case, the prosecutor concluded that defendant was not drug dependent and distributed CDS over a period of several months. The prosecutor applied Guideline 3(i), which states that "[a] defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program . . . ."

Defendant argues that the prosecutor misapplied Guideline 3(i) because "the evidence clearly established that he was a drug-dependent individual." Regardless of defendant's drug dependency status, the prosecutor's reliance on Guideline 3(i) was not an abuse of discretion. Guideline 3(i) creates a presumption that a non-drug dependent individual charged with distributing Schedule I or II narcotics will not be admitted to PTI. When the Guidelines express a presumption against eligibility, the prosecutor may reject an applicant solely on the nature of the offense. State v. Caliguiri, 158 N.J. 28, 42 (1999). When no presumption applies, the prosecutor must make an "individualistic" assessment of defendant's background and prospect for rehabilitation. State v. Nwobu, 139 N.J. 236, 255 (1995). Defendant only produced the report from Snider indicating that he was drug dependent, which the court rejected, but even if we agree that he is drug dependent, it is not dispositive. As the trial court concluded, even if the prosecutor had considered defendant drug dependent and not relied on Guideline 3(i), that factor was not dispositive, and the remaining factors relied on by the prosecutor still support a rejection.

The prosecutor applied N.J.S.A. 43-12(e)(3), which requires the prosecutor to consider the motivation of the defendant, and concluded that defendant did not have the motivation to succeed in PTI. The prosecutor considered defendant's prior contacts with the law, which include a juvenile charge in 2005 and a conviction and fine for disorderly conduct in the following year, and concluded that his prior unlawful activity and its consequences failed to deter him. There was a basis in evidence for the prosecutor's reliance on N.J.S.A. 43-12(e)(3) and it did not constitute an abuse of discretion.

Defendant argues that the court erred in not considering the amendment to N.J.S.A. 2C:35-7. N.J.S.A. 2C:35-7(a) states that,

Any person who . . . distribut[es], dispens[es] or possess[es] with intent to distribute a [CDS] . . . while on any school property . . . or within 1,000 feet of such school property . . . is guilty of a crime of the third degree and shall . . . be sentenced by the court to a term of imprisonment. . . .

On January 12, 2010, three days before defendant's PTI appeal hearing, N.J.S.A. 2C:35-7(b) was amended to make school zone offenders no longer presumptively ineligible for PTI. The amendment allows a court to reduce the period of parole ineligibility or sentence a defendant to a non-custodial probationary term for a third-degree school zone conviction upon consideration of a number of factors. These include defendant's prior criminal record; the location of the offense relative to the school property; whether school was in session; and whether children were present. The amendment further requires that a court not waive or reduce the minimum term of parole ineligibility or sentence to probation if the offense took place on school property or the defendant used or threatened violence in the commission of the offense.

This amendment is not relevant to defendant's PTI suitability. First, the prosecutor considered, among other factors, Guideline 3(i) in denying defendant's application. Guideline 3(i) was not amended, and it creates the presumption that if not drug dependent, defendant should not be considered for PTI because he dispensed Schedule II narcotics.

Even excluding any consideration of Guideline 3(i), the Prosecutor has sufficient other reasons, including defendant's prior contact with the law and the facts of the case, on which to support his decision. We conclude that there was no abuse of discretion.

Defendant asserts, without more, that the prosecutor employed a "blanket policy" and excluded all individuals charged with school zone offenses from PTI. As we have discussed, the prosecutor has set forth sufficient independent grounds for the denial. We find no merit to this argument.

A

1 These charges were later dismissed.