STATE OF NEW JERSEY v. LUIS E. GAMBOA-APARICIO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4705-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS E. GAMBOA-APARICIO,
Defendant-Appellant.
__________________________
Submitted November 16, 2017 – Decided April 19, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
13-10-1336.
Joseph E. Krakora, Public Defender, attorney
for appellant (Elizabeth C. Jarit, Assistant
Deputy Public Defender, of counsel and on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
This case is back to us after a remand. See State v. Gambao-
Aparicio, No. A-4358-13 (App. Div. Mar. 18, 2015). On remand, the
Middlesex County Prosecutor again rejected defendant Luis E.
Gambao-Aparicio's application for admission into the pre-trial
intervention (PTI) program, and the trial court affirmed. For the
following reasons, we affirm.
A grand jury indicted defendant for third-degree possession
of a controlled dangerous substance (CDS),
N.J.S.A. 2C:35-
10(a)(1); third-degree possession of a CDS with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3); and
third-degree distribution of a CDS,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3). The charges stemmed from defendant's sale
of approximately three grams of cocaine to an undercover narcotics
officer for $80 during an ongoing investigation into defendant's
drug dealing.
Defendant applied for admission into the PTI program. The
record revealed that he emigrated from Mexico at the age of
thirteen and one-half but was residing in this country illegally.
The State provided no record of his criminal history, if any, in
Mexico, and, except for two arrests in New Jersey for non-
indictable offenses, he had no prior juvenile adjudications or
adult convictions in the United States. The charges for those
arrests were dismissed after defendant voluntarily left the United
States. Defendant committed the present offenses after illegally
2 A-4705-15T1
returning to this country. Following his arrest, he obtained
employment and stable housing with family members.
The prosecutor rejected defendant's application for admission
into the PTI program, but the trial court granted defendant's
motion to compel admission. On appeal, we vacated the order
admitting defendant into PTI and remanded for the prosecutor to
reconsider defendant's application. Id. at 4-5. We determined
that defendant's brother's incarceration was irrelevant to whether
defendant qualified for PTI, defendant's employment and housing
were relevant positive factors to be considered, the prosecutor's
reasons for
N.J.S.A. 2C:43-12(e)(14), (15) and (17) were too
generalized, and it was improper to use defendant's prior dismissed
charges alone as evidence supporting
N.J.S.A. 2C:43-12(e)(8). Id.
at 4.
On remand, the prosecutor no longer relied on defendant's
brother's criminal record or defendant's dismissed charges as
factors weighing against admission. The prosecutor reassessed the
statutory factors, and found all but two weighed against
admission.
1 As to N.J.S.A. 2C:43-12(e)(1), "[t]he nature of the
offense[,]" the prosecutor reasoned:
1
The prosecutor did not consider
N.J.S.A. 2C:43-12(e)(12), "[t]he
history of the use of physical violence toward others[,]" or
N.J.S.A. 2C:43-12(e)(16), "[w]hether or not the applicant’s
3 A-4705-15T1
The defendant was indicted for possessing
[c]ocaine, possessing the [c]ocaine with the
intent to distribute, and distributing
[c]ocaine. Our office considers an individual
who possesses drugs with the intent to
distribute and in fact distributes drugs as a
serious crime. The defendant is not to be
considered in the same category as a person
who is addicted to the use of illegal drugs.
A drug user may very well benefit from the PTI
program and attend counseling to receive help
for his addiction. On the contrary, this
defendant is providing the would-be drug
addicts the means and opportunity to continue
their addiction thereby leading them down the
path to self-destruction.
As to
N.J.S.A. 2C:43-12(e)(2), "[t]he facts of the case[,]"
the prosecutor reasoned:
The arrest of his defendant was the
result of an ongoing investigation into the
drug dealing of this defendant and others.
Information had been received that this
defendant was engaged in the selling of
[c]ocaine. As a result of that information,
members of the Middlesex County Prosecutor['s]
Office Narcotics Task force and the Old Bridge
Police Department became involved in the
investigation. . . . [T]he use of an
undercover police officer exposes the officer
to a dangerous situation where he could be
seriously injured. This office considers the
instant matter as an entirely different
situation whereby a drug dealer is observed
and arrested selling drugs to his normal
customers.
participation in pretrial intervention will adversely affect the
prosecution of codefendants[.]"
4 A-4705-15T1
As to
N.J.S.A. 2C:43-12(e)(3), "[t]he motivation and age of
the defendant[,]" the prosecutor reasoned:
The defendant was clearly motivated by
profit. This is not a situation where an
individual had to steal a loaf of bread to
feed his family. This defendant was
interested in material gains for himself.
Moreover, he was [twenty-five] years old at
the time he committed this crime and was fully
mature and aware of the potential
consequences. His power of reason did not
consider the harm he would be doing to others,
only how much money he could make for himself.
As to
N.J.S.A. 2C:43-12(e)(4), "[t]he desire of the
complainant or victim to forego prosecution[,]" the prosecutor
reasoned that the detective, "who functioned in the undercover
capacity, is adamant about not foregoing prosecution in this
matter."
As to
N.J.S.A. 2C:43-12(e)(5), "[t]he existence of personal
problems and character traits which may be related to the
applicant’s crime and for which services are unavailable within
the criminal justice system, or which may be provided more
effectively through supervisory treatment and the probability that
the causes of criminal behavior can be controlled by proper
treatment[,]" the prosecutor reasoned:
After carefully considering all the
information provided by the defense, we are
unable to find any personal problems or
character traits of this defendant for which
services are unavailable within the criminal
5 A-4705-15T1
justice system or that the cause of the
behavior can be controlled by proper
treatment. The character trait that drove
this defendant to commit this crime was
profit. He desired money and material gains
for himself to the detriment of anyone who
would purchase his drugs. It is the State's
position that the PTI program does not offer
any unique programs that are not available
through the criminal justice system for this
defendant. Supervisory treatment offered
through PTI will not control his desire to
acquire material objects through the sale of
illegal drugs.
As to
N.J.S.A. 2C:43-12(e)(6), "[t]he likelihood that the
applicant’s crime is related to a condition or situation that
would be conducive to change through his participation in
supervisory treatment[,]" the prosecutor reasoned:
There is no indication in this case that
the defendant's actions were related to a
situation which could be changed due to
participation in the supervisory treatment.
It appears that defendant was solely
influenced by profit. This is not a situation
where an individual had to steal a car in order
to get to work so he [would not] get fired.
The selling of drugs was providing funds for
him in addition to his purported job.
As to
N.J.S.A. 2C:43-12(e)(7), "[t]he needs and interests of
the victim and society[,]" the prosecutor reasoned:
It is quite clear that there is a great
need and interest of society to stop the sale
of illegal drugs. It is well known that the
actions of people who sell drugs as this
defendant did, destroys lives. People become
addicted; squander their life savings and
those of family members. Addicts become a
6 A-4705-15T1
drain on society and often lead to a life of
crime such as burglaries, robberies, and theft
to support their habit. The fact that this
defendant cared more for his material gain
than the lives of those who he is destroying
indicate that this factor weighs against his
admission into PTI.
As to
N.J.S.A. 2C:43-12(e)(8), "[t]he extent to which the
applicant's crime constitutes part of a continuing pattern of
anti-social behavior[,]" the prosecutor reasoned:
The fact that a phone call was placed to
the defendant and he readily was able to meet
with an undercover police officer, (an
individual whom he had never met before), and
sell him a quantity of cocaine on short notice
is indicative of a continuing pattern of drug
dealing on the part of the defendant. If a
phone call were placed to any law abiding
citizen and that citizen were asked to provide
a quantity of [c]ocaine, the State contends
that the average law abiding citizen would be
hard pressed to provide the [c]ocaine.
As to
N.J.S.A. 2C:43-12(e)(9), "[t]he applicant’s record of
criminal and penal violations and the extent to which he may
present a substantial danger to others[,]" the prosecutor
reasoned:
A review of the defendant's criminal
history reveals that the defendant failed to
appear in Municipal Court on February 24, 2012
and a [b]ench [w]arrant was issued for his
arrest on April 24, 2012. While those charges
were pending, he sold [c]ocaine to an
undercover police officer in May of 2013. He
was convicted of [d]riving [w]hile
[i]ntoxicated [on] October 22, 2013. This
contempt for the criminal justice process is
7 A-4705-15T1
indicative of the defendant's contempt for the
law and the judicial system and makes him an
unfavorable candidate for PTI. Moreover, the
defendant was in this country illegally. He
faced deportation and was ordered to either
voluntarily depart himself by a United States
Immigration Judge or be deported. He chose
to depart before he was deported and left the
country I January of 2011. Within months of
his leaving this country, he then again
illegally reentered this country and was
arrested and subsequently convicted of
[d]riving [w]hile [i]ntoxicated. The
defendant was caught committing the instant
offense while the [d]riving [w]hile
[i]ntoxicated charges were pending. This is
a further indication of the defendant's
contempt for the criminal justice system and
is illustrative of his desire not to obey the
laws of this country. Upon his illegal
reentry into this country, he did not choose
to become a productive member of society but
rather he chose to commit a crime that poses
a direct danger to the people who buy his
drugs.
As to
N.J.S.A. 2C:43-12(e)(10), "[w]hether or not the crime
is of an assaultive or violent nature, whether in the criminal act
itself or in the possible injurious consequences of such
behavior[,]" the prosecutor reasoned:
The definition of an assault is a knowing
or purposeful act that causes injury to
another. As indicated above, the actions of
this defendant create a direct injury upon the
individuals that ingest the drugs that he
sells. He has shown no remorse for his actions
and has not accepted the consequences of his
actions.
8 A-4705-15T1
As to
N.J.S.A. 2C:43-12(e)(11), "[c]onsideration of whether
or not prosecution would exacerbate the social problem that led
to the applicant’s criminal act[,]" the prosecutor reasoned:
Prosecution of this defendant in the
traditional manner would assist in alleviating
not exacerbating the drug problem in society.
If this defendant is allowed to be placed into
PTI, it would fuel a misconception that drug
dealers can escape with minor punishment and
will be seen by others as acceptance of the
illegal drug trade.
As to
N.J.S.A. 2C:43-12(e)(13), "[a]ny involvement of the
applicant with organized crime[,]" the prosecutor reasoned:
The illegal drug trade is, in and of
itself, "organized crime". The major drug
cartels cultivate the drugs and arrange for
transportation into this country. The drugs
are then moved to distribution points within
the country. Those distribution points then
distribute the drugs to the higher level
distributors who in turn eventually distribute
the drugs to individuals such as this
defendant who sells them to the individuals
on the street. During each step of the
procedure the criminals involved receive a
share of the proceeds. Without individual
sellers such as this defendant the drug
cartels would cease to exist. In order to
properly combat the drug distribution
organization, defendants such as this must be
prosecuted in the traditional fashion.
As to
N.J.S.A. 2C:43-12(e)(14), "[w]hether or not the crime
is of such a nature that the value of supervisory treatment would
be outweighed by the public need for prosecution[,]" the prosecutor
reasoned:
9 A-4705-15T1
The State contends that there is no
proper "supervisory treatment" in this
particular case for this defendant. His ready
access to drugs and lack of consideration for
who he sells the drugs to are indicative of
the facts that he cares not for the
consequences of his actions. He will sell to
people he does not know and has met for the
first time. The fact that this individual
does not care about the consequences of his
actions makes "supervisory treatment"
inapplicable in this case.
As to
N.J.S.A. 2C:43-12(e)(15), "[w]hether or not the
applicant’s involvement with other people in the crime charged or
in other crime is such that the interest of the State would be
best served by processing his case through traditional criminal
justice system procedures[,]" the prosecutor reasoned:
The fact that there are no other
codefendants indicted in this case does not
remove this factor from consideration by the
State. Clearly this defendant did not
cultivate and transport the drugs into this
country thereby indicating that there are
other unindicted unknown coconspirators with
this defendant. The interest of the State is
best served by sending a clear message to
those other individuals in this case as well
as in other cases that illegal drug
trafficking will not be tolerated and will be
prosecuted through the traditional criminal
justice system procedures.
As to
N.J.S.A. 2C:43-12(e)(17), "[w]hether or not the harm
done to society by abandoning criminal prosecution would outweigh
the benefits to society from channeling an offender into a
supervisory treatment program[,]" the prosecutor reasoned:
10 A-4705-15T1
One of the key purposes of traditional
prosecution is to focus on both general and
specific deterrence. Even if this defendant
might be deterred by his arrest and
involvement in this criminal episode, there
is the question of general deterrence by the
prosecution of defendant. Here, the facts and
circumstances of the case makes clear that the
public need for prosecution outweighs any of
the potential benefits to society by
channeling this defendant into a program of
supervisory treatment. There is no benefit
to society from channeling this offender into
a supervisory treatment program. He is not a
drug user; he is a drug seller, motivated by
profit. This is not an individual who is an
addict; he is a profiteer making his living
by preying on the unfortunate disabilities of
others.
Lastly, the prosecutor explained that Guideline 3(i) of Rule
3:28-1 disfavors admission of a person charged with the sale or
dispensing of a Schedule I or II narcotics, and there is a
rebuttable presumption against enrollment when the prosecutor
refuses to consent.
In assessing defendant individually, the prosecutor
considered positive information, including that he financially
contributed to support his family; lived with his family; graduated
from vocational high school and wanted to pursue a career as a
diesel mechanic; and was employed full-time from June 2009 to
September 2010, from March 2011 to January 2012, and for two weeks
in 2014.
11 A-4705-15T1
The prosecutor also considered defendant's amenability and
potential responsiveness to rehabilitation, and found:
Nowhere in the submissions does defendant
indicate that he no longer engages in the
illegal behavior related to the sale of
illegal drugs. He has submitted no drug
related tests nor medical records which
demonstrate that he has determined to
eliminate the sale and/or use of illegal
substances from his life. Factually, there
is no proof offered that this [twenty-five]
year old defendant has been rehabilitated
relating to the root causes of his crime as
well as his obvious personal attraction to
profit at the misfortune of others.
Defendant appealed to the Law Division. In a written opinion,
Judge Diane Pincus found the prosecutor improperly considered
factors (4) and (13), but properly considered the other factors.
As to factors (1) and (2), the judge rejected defendant's view
that this was merely a one-time occurrence involving a small amount
of drugs. Rather, the judge found "[d]efendant was arrested as
part of an ongoing investigation whereby the State set up this
undercover operation focusing on [d]efendant[,] and [d]efendant
was readily available to quickly acquire and sell drugs to a
stranger." The judge also found that dealing drugs is a serious
crime that harms the community and society as a whole.
As to factor (3), Judge Pincus found defendant's work history
and efforts to support his family did not mean he was not motivated
by profit in his sale of drugs or was so young as to not appreciate
12 A-4705-15T1
the consequences of his actions. As to factors (5) and (6), the
judge found "[d]efendant committed this crime solely for profit
and . . . the traditional criminal justice process, rather than
PTI, would adequately deter [d]efendant from continuing to commit
crimes."
As to factor (7), Judge Pincus found "the sale of drugs is a
detriment to the community, and society has an interest in
deterring the distribution of drugs." As to factor (8), the judge
recognized defendant had no subsequent involvement with the
criminal justice system, but found he had "a prior DWI conviction
and was readily available to acquire and sell drugs to a stranger."
As to factor (9), Judge Pincus found defense counsel conceded
that defendant's immigration status could be considered in
conjunction with other PTI factors, and counsel did not dispute
defendant's failure to appear in municipal court could be
considered a criminal or penal violation and used to support the
denial of PTI. As to factor (10), the judge accepted the State's
analysis that "[d]efendant's sale of drugs injures those who ingest
the drugs and this constitutes an assault" was proper. As to
factor (11), the judge found there was sufficient information
supporting the State's analysis "that traditional prosecution of
[d]efendant would alleviate, not exacerbate the problem in that
13 A-4705-15T1
it would send a message to drug dealers that they are not entitled
to special treatment in the criminal justice system." (Da33)
As to factor (15), Judge Pincus accepted the State's analysis
that "there are people involved as [d]efendant could not have
cultivated and transported the drugs he was selling himself[,]"
and "denying [d]efendant entry into PTI . . . is sending a message
to the people who are cultivating and transporting drugs that
illegal drug trafficking will not be tolerated."
As to factor (17), Judge Pincus accepted the State's analysis
that "the general deterrence offered by traditional prosecution
of [d]efendant is so great that the public need for prosecution
far outweighs the benefits of allowing [d]efendant into PTI." The
judge concluded:
The State has presented sufficient facts to
sustain its decision to reject [d]efendant's
PTI application. The State conducted a
reassessment of relevant factors after
removing the factors cited by the Appellate
Division as inappropriate and considered
positive information regarding [d]efendant
cited by the Appellate Division. Furthermore,
there is a strong presumption in favor of
denying [d]efendant's admission into PTI.
Despite finding that the State improperly
considered factors (4) and (13), the [c]ourt
finds that the State did not make a clear error
in judgment. The State's decision to not
admit [d]efendant into PTI did not clearly
subvert the goals underlying the program.
Accordingly, this [c]ourt finds that
[d]efendant has not established by clear and
convincing evidence that the State's decision
14 A-4705-15T1
to reject his PTI application was a patent and
gross abuse of discretion. Moreover,
[d]efendant has failed to establish that the
State's decision was arbitrary or irrational
such that a remand is required.
This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE PROSECUTOR'S REJECTION OF THE DEFENDANT
FROM PTI WAS A PATENT AND GROSS ABUSE OF
DISCRETION; THIS COURT SHOULD THEREFORE COMPEL
THE DEFENDANT'S ADMISSION INTO PTI.
A. The prosecutor improperly applied nearly
all of the statutory factors in rejecting
the defendant's application.
1. The facts of the case -- that
the defendant made a single sale of
a small amount of cocaine to an
undercover officer -- do not weigh
against admission [
N.J.S.A. 2C:43-
12(e)(2)].
2. The defendant's relative youth
does not weigh against admission
[N.J.S.A. 2C:43-12(e)(3)].
3. The prosecutor's reliance on
[
N.J.S.A. 2C:43-12(e)(5), (6) and
(14)] to deny admission is belied by
the fact that he recommended non-
custodial probation as the ultimate
sentence.
4. There is no evidence in the
record that the defendant engaged in
a continuing pattern of anti-social
behavior [N.J.S.A. 2C:43-12(e)(8)].
15 A-4705-15T1
5. Consideration of a bench
warrant as evidence of a criminal or
penal violation was improper
[N.J.S.A. 2C:43-12(e)(9)].
6. The prosecutor's conclusion
that the defendant's conduct was
"assaultive" was plainly erroneous
and contrary to law [
N.J.S.A. 2C:43-
12(e)(10].
7. [
N.J.S.A. 2C:43-12(e)(3), (7),
(11), (15), and (17)] were premised
on the nature of the crime without
an individualized assessment of the
defendant.
8. The trial court properly found
that [
N.J.S.A. 2C:43-12(e) (4) and
(13)] were inappropriately applied.
B. The prosecutor failed to consider the
many factors weighing in favor of
admission.
C. The prosecutor's willingness to admit the
defendant into PTI if he confessed to the
crime reveals that the prosecutor, in
fact, believed that the defendant would
be an acceptable candidate for PTI, and
that his ultimate rejection of the
defendant's application was arbitrary.
D. The defendant's immigration status
underlies the prosecutor's rejection.
E. Rejection of the defendant will subvert
the goals of PTI.
F. Because the prosecutor's denial was a
patent and gross abuse of discretion,
this [c]ourt should compel the
defendant's admission into PTI.
16 A-4705-15T1
Our scope of review of a PTI rejection is severely limited.
State v. Negran,
178 N.J. 73, 82 (2003). We afford the
prosecutor's decision great deference. State v. Wallace,
146 N.J.
576, 589 (1996)). Prosecutors are granted "wide latitude in
deciding whom to divert into the PTI program and whom to prosecute
through a traditional trial." Negran,
178 N.J. at 82. A
"[d]efendant generally has a heavy burden when seeking to overcome
a prosecutorial denial of his [or her] admission into PTI." State
v. Watkins,
193 N.J. 507, 520 (2008) (citation omitted). In order
to overturn a prosecutor's rejection, a defendant must "clearly
and convincingly establish that the prosecutor's decision
constitutes a patent and gross abuse of discretion." State v.
Hoffman,
399 N.J. Super. 207, 213 (App. Div. 2008) (citation
omitted). "A patent and gross abuse of discretion is defined as
a decision that 'has gone so wide of the mark sought to be
accomplished by PTI that fundamental fairness and justice require
judicial intervention.'" Watkins,
193 N.J. at 520 (quoting
Wallace,
146 N.J. at 582-83). "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).
17 A-4705-15T1
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We are satisfied that the prosecutor's
rejection of defendant's PTI application was not a patent or gross
abuse of discretion. Thus, there is no basis to disturb Judge
Pincus' decision sustaining the prosecutor's decision. The
reasons for the prosecutor's rejection were premised on
consideration of relevant factors, which weighed against
defendant's admission, and the prosecutor did not consider
irrelevant or inappropriate factors. We agree with Judge Pincus
that while the prosecutor improperly considered factors (4) and
(13), the State did not make a clear error in judgment. Defendant
failed to clearly and convincingly establish that the prosecutor's
decision went so wide of the mark sought to be accomplished by PTI
that fundamental fairness and justice require judicial
intervention.
Affirmed.
18 A-4705-15T1
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