STATE OF NEW JERSEY v. ANDREW C. CASTLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW C. CASTLE,

Defendant-Appellant.

July 2, 2015

Submitted June 23, 2015 Decided

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 13-07-0389.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Gregory G. Waterston, Assistant Prosecutor, on the brief).

PER CURIAM

On the same date a Law Division judge heard and denied defendant Andrew C. Castle's motion to suppress evidence, he also heard and denied his appeal from his rejection by the Pretrial Intervention Program (PTI) coordinator. See N.J.S.A. 2C:43-12 to -22; R. 3:28; Pressler & Verniero, Current N.J. Court Rules, Guidelines to R. 3:28 (2015). Defendant thereafter entered a guilty plea to one count of a two-count indictment charging him with third-degree possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10(a)(1). We now reverse and remand the matter for reconsideration of defendant's application.

Defendant was found in possession of cocaine and ketamine on March 2, 2013, during a motor vehicle stop. A few days later, on March 21, 2013, defendant was arrested in South Carolina for possession of marijuana (misdemeanor), driving on the wrong side of the road (misdemeanor), furnishing contraband in county/municipal prison (felony), trafficking MDMA/ecstasy (felony), and two charges of possession of other CDS (misdemeanor). At the time of defendant's initial PTI application, those charges were open and pending. When the judge affirmed defendant's rejection from PTI, they had been dismissed. Defendant was then a twenty-one-year-old employed Maryland resident with no other known arrest history.

The county prosecutor did not enumerate his reasons for rejection until the Office of the Public Defender submitted its brief on defendant's appeal to the Law Division judge. They were

1) The nature and circumstances surrounding the arrest indicate the conduct posed a significant risk to society that must be deterred;

2) The type of drug and likelihood of addiction creates a high probability of relapse, thus, making the defendant less amenable to rehabilitative treatment;

3) Given the type of drug use, likelihood of addiction, and the need of addiction treatment will make proper supervision more difficult given the distance he lives outside of the State of New Jersey; and

4) after evaluating the defendant's subsequent conduct, arrest, and criminal contact, the defendant shows a pattern of antisocial behavior that makes the defendant less amenable to rehabilitative treatment.

As the brief stated, the county prosecutor considered the most "compelling reason" for rejection to be defendant's subsequent arrest.

In denying defendant's appeal, the judge began from the premise that defendant's burden was to prove by clear and convincing evidence that the prosecutor's rejection of his application into PTI was a patent and gross abuse of prosecutorial discretion. The judge said "[t]he State has pointed to the [d]efendant's prior contact with the system and the nature of those contacts. Recognizing that some of those matters were subsequently dismissed, it is allowed to look at the contacts." Additionally, the judge noted that defendant was not a New Jersey resident and that given the nature of the offense, "PTI would be difficult . . . and not sufficient." He therefore concluded that defendant had failed to carry his burden.

Defendant raises two issues for our consideration

POINT I

THE PROSECUTOR VIOLATED STATE V. BROOKS IN USING CASTLE'S SUBSEQUENT ARREST ON DISMISSED CHARGES AS A BASIS FOR DENYING ADMISSION INTO THE PRETRIAL-INTERVENTION PROGRAM AND IMPROPERLY ASSUMED ADDICTION FROM THE MERE POSSESSION OF A SMALL AMOUNT OF NARCOTICS, ESSENTIALLY CREATING A PER SE BAR FOR DRUG USERS ALTHOUGH THE PROGRAM WAS MEANT TO ENCOURAGE THE ADMISSION OF SUCH OFFENDERS.

POINT II

THE COURT ERRED IN IMPOSING A $1000 FINE WITHOUT EVER DETERMINING CASTLE'S ABILITY TO PAY OR PROVIDING A REASON FOR THE FINE.

We do not reach the question of whether the court was compelled to articulate findings regarding defendant's ability to pay a fine pursuant to N.J.S.A. 2C:44-2(a)(1) and (2), as well as Rule 3:21-4(g), in light of the remand for reconsideration of defendant's application.

After defendant's appeal was heard and decided, on January 8, 2015, our Supreme Court held that it is improper to rely upon previously dismissed charges alone as evidence in support of a "continuing pattern of antisocial behavior." State v. K.S., 220 N.J. 190, 201-02 (2015); N.J.S.A. 2C:4312(e)(8). In that case, the Court determined that a prosecutor could no longer consider arrests resulting in diversion or dismissal to bar a defendant's admission into PTI. K.S., supra, 220 N.J. at 202. While acknowledging a prosecutor's "broad discretion to determine if a defendant should be diverted," the Court nonetheless concluded that prior dismissed charges may not be included in the evaluation of a PTI application. Id. at 199-200, 202.

K.S. reiterated that, "[w]hen a reviewing court determines that the 'prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse of discretion,' the reviewing court may remand to the prosecutor for further consideration." Id. at 200 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)). Accordingly, we vacate the trial court's order rejecting defendant from PTI and remand the matter to the prosecutor for further consideration in light of K.S. If on reconsideration, the prosecutor continues to reject defendant for PTI, he may seek review of that decision in the trial court.

Remanded. We do not retain jurisdiction.