STATE OF NEW JERSEY v. BRYAN L. MORRISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5629-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN L. MORRISON,

Defendant-Appellant.

May 13, 2011

Submitted March 28, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-09-1743.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the briefs).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Bryan L. Morrison was denied admission into the Ocean County Drug Court Program. He appeals and, for the reasons that follow, we affirm.

As a result of undercover purchases, defendant was indicted on one count of second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5 (count one); three counts of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (counts two, five, and six); and two counts of third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5 (counts three and four). His application to Drug Court was rejected on December 9, 2009, which decision he subsequently appealed. During the course of oral argument, the prosecutor noted defendant's three prior drug convictions, resulting in sentences of four years, five years with a thirty-six-month parole bar, and ten years with a sixty-month parole bar, respectively. The prosecutor went on to explain defendant's criminal history established that he was a drug dealer for profit and therefore a significant threat to the community. The appeal of his rejection from the Drug Court program was denied by the Law Division on February 22, 2010.

In denying defendant's appeal, the Law Division judge agreed with the State's contention. Recognizing that admission into Drug Court is a privilege and not a right, the court found the prosecutor's rejection of defendant was a reasonable exercise of discretion. Thereafter, on March 15, 2010, defendant entered a guilty plea to second-degree possession with intent to distribute and received fewer years of imprisonment than called for by the plea agreement defendant was sentenced to an eight-year term of imprisonment, subject to a forty-eight-month parole bar instead of a ten-year prison term subject to a forty-eight-month parole bar.

As our Supreme Court has previously explained, drug courts are a "creature of the judiciary." State v. Meyer, 192 N.J. 421, 430 (2007). Admission into the program is based upon "uniform statewide eligibility criteria." Id. at 431. Under the first track, as defined in the Drug Court Manual,1 an applicant such as defendant who is mandatory extended-term-eligible as a multiple-time drug distributor must satisfy the eligibility requirements for special probation under N.J.S.A. 2C:35-14. Id. at 431-32.

Defendant contends that since he was not even granted a Drug Court evaluation, he was denied the opportunity to present his situation in the individualized manner called for by case law and the Drug Court Manual. He claims the court erred by not compelling the evaluation, which would have enabled him to demonstrate his eligibility, and a remand is required for that purpose.

To succeed on an appeal from a Drug Court rejection, a defendant must establish a patent and gross abuse of discretion. State v. Hestor, 357 N.J. Super. 428, 443 (App. Div. 2003). Defendant's position is that the failure to afford him the opportunity to be evaluated meets this standard, particularly in light of his lifetime of drug use, which commenced in childhood, and the personal circumstances which resulted in his life of criminality.

In order to meet the applicable patent and gross abuse of discretion standard, however, a defendant must show the prosecutor's decision was premised upon considerations of irrelevant or inappropriate factors, incomplete consideration of relevant factors, or a clear error in judgment. Ibid. Defendant has not presented any proofs supporting his assertion that the prosecutor considered irrelevant factors or did not consider his complete individual history.

Resources are scant in Drug Court, even for evaluation. The rejection in this case was based on defendant's undisputed prior criminal history and his current charges. Defendant does not proffer how an evaluation would ameliorate the significance of his criminal history and his current charges. Nor does he suggest facts indicating any arbitrariness in the prosecutor's decision. No patent and gross abuse of discretion having been established, we therefore affirm.

1 See Administrative Office of the Courts, Directive #2-02 (July 22, 2002), available at http://www.judiciary.state.nj.us/ directive/criminal/dir_02_02.pdf.