STATE OF NEW JERSEY v. GORDON GREENE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0647-05T10647-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GORDON GREENE,

Defendant-Appellant.

 

Submitted July 26, 2006 - Decided August 16, 2006

Before Judges Hoens and S. L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-01-00028-I.

Richard J. Simon, attorneys for appellant (Mr. Simon, of counsel; Jeffrey Zajac, on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Gordon Greene appeals from the May 26, 2005 order of the Law Division denying his motion to be admitted into the Pretrial Intervention (PTI) program over the objection of the PTI director and the County Prosecutor. We affirm.

The facts relevant to the issues on appeal are as follows. On December 5, 2004, defendant was observed by a Franklin Township police officer pulling his vehicle into the parking lot of a business that had closed for the evening and driving toward the rear of the building. As the officer approached, he detected the strong odor of marijuana emanating from defendant's vehicle. When confronted, defendant admitted that he had just rolled a marijuana cigarette, which he showed to the officer. He then consented to a search of the vehicle, where a quarter of a pound of marijuana, packaged in thirteen individual bags in differing weights, was discovered. Another pound of marijuana was later found during a search of defendant's apartment.

Defendant told the investigating detective from the Prosecutor's Office that he intended to sell the marijuana and he told him the prices that he charged for each of the different weights found in the vehicle. He also told the detective that he had been selling marijuana for approximately one year "to keep up on bills so that I can get by . . . I got laid off. I needed another source of income." Based on this and other information developed during the investigation, defendant was indicted for third-degree possession of a controlled dangerous substance (marijuana) with intent to distribute. N.J.S.A. 2C:35-5a(1), -5b(11). In addition, defendant was charged with a disorderly persons offense for possession of marijuana, N.J.S.A. 2C:35-10a(4), and with motor vehicle offenses for driving an uninsured vehicle, N.J.S.A. 39:6B-2, and for having a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1.

Following his arrest and before the indictment was handed up, defendant applied for admission into the PTI program. By means of a written notice dated March 5, 2005, the PTI director recommended that defendant's application be rejected. That notice, which included a printed checklist of considerations with statutory references, gave two reasons for the recommendation, as follows:

The crime or crimes defendant is charged with constitute part of a continuing pattern of antisocial behavior or the defendant has a record of criminal and penal violations and presents a substantial danger to others.

N.J.S.A. 2C:43-12e.(8); N.J.S.A. 2C:43-12e.(9).

. . .

Defendant's conduct was part of an organized ongoing criminal activity. Defendant provided police with statement admitting that he was involved in the distribution of marijuana for one year prior to his arrest.

The Prosecutor concurred in the recommendation, concluding that the reasons supported rejecting defendant's application for the PTI program. Defendant was promptly provided with a copy of the notice advising him that his PTI application had been rejected and explaining the reasons for that decision.

Defendant appealed the decision rejecting his PTI application to the Law Division, where the judge declined to admit defendant to PTI over the Prosecutor's objection for reasons he expressed on the record on May 26, 2005. Thereafter, defendant agreed to plead guilty to the third-degree charge in the indictment in exchange for a recommended sentence and dismissal of the disorderly persons and motor vehicle charges. On August 26, 2005, defendant was sentenced in accordance with the terms of the Prosecutor's recommendation and his sentence was stayed pending the outcome of his appeal of the rejection of his PTI application.

On appeal, defendant raises the following point:

POINT I

THE TRIAL COURT'S AFFIRMANCE OF THE DENIAL OF THE DEFENDANT'S PTI APPLICATION REPRESENTS PLAIN AND REVERSIBLE ERROR.

A. REVERSAL OF A PTI DENIAL IS WARRANTED WHEN THE PROSECUTOR'S DECISION WAS NOT PREMISED UPON A CONSIDERATION OF ALL RELEVANT FACTORS, WAS BASED UPON A CONSIDERATION OF IRRELEVANT OR INAPPROPRIATE FACTORS, OR AMOUNTED TO A CLEAR ERROR IN JUDGMENT.

B. THE PROSECUTOR'S DENIAL OF THE DEFENDANT'S PTI APPLICATION WAS BASED UPON INAPPROPRIATE FACTORS, AND SHOULD BE REVERSED.

We have considered these arguments in light of the record and the applicable legal precedents and have found them to be unpersuasive.

Our Supreme Court has described PTI as "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliquiri, 158 N.J. 28, 35 (1999). Admission to PTI is governed, in general, by both statute, N.J.S.A. 2C:43-12a(1), and court rule, R. 3:28; see Pressler, Current N.J. Court Rules, Guidelines for Operation of Pretrial Intervention in New Jersey, comment on R. 3:28 (2006). The scope of judicial review of a decision to reject a PTI application is "severely limited," State v. Nwobu, 139 N.J. 236, 246 (1995)(quoting State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993)), and interference in that decision by the courts is reserved for those cases in which it is needed "to check . . . the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (2003)(quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

The standard to be applied by the courts in reviewing PTI decisions has been referred to as "enhanced" or "extra" deference. State v. Baynes, 148 N.J. 434, 443-44 (1997)(quoting Kraft, supra, 265 N.J. Super. at 111). Moreover, the burden on any defendant who seeks to overturn the denial of a PTI application is particularly weighty. As our Supreme Court has held, a defendant seeking to overcome rejection from PTI must prove by clear and convincing evidence that the decision to reject his or her application was a "patent and gross abuse of

. . . discretion." Negran, supra, 178 N.J. at 82 (citing Nwobu, supra, 139 N.J. at 246); see State v. Brooks, 175 N.J. 215, 225 (2002).

In applying this test, the Supreme Court has noted that if a rejected defendant can prove that the decision "(a) was not premised upon a consideration of all relevant factors, (b) was based upon consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment," then an abuse of discretion would "[o]rdinarily . . . be manifest." State v. Bender, 80 N.J. 84, 93 (1979). However, in order to raise that presumption to the level of "a patent and gross" abuse of discretion, the defendant must also prove that his or her rejection from PTI will "clearly subvert the goals" of the PTI program. Ibid. Similarly, our Court has held that it is appropriate to reverse a decision respecting PTI that is "contrary to the predominant views of others responsible for the administration of criminal justice" such that it is "clearly unreasonable so as to shock the judicial conscience" or that it "could not have been reasonably made upon a weighing of the relevant factors." Nwobu, supra, 139 N.J. at 253-54.

Defendant's specific arguments are insufficient to meet the standards set forth in these precedents. In particular, he first asserts that "a non-violent, possessory offense of the third degree in no way warrants a denial of PTI." In support of this argument, he contends that the Prosecutor's reference to his crime as part of an organized or continuing criminal activity was baseless, arguing that he "only" sold marijuana three or four times. The facts in the record, including the statements defendant made when interviewed by the police, however, are to the contrary. He had a significant amount of the drug in his car and in his residence when the searches were conducted. The drugs in his car were packaged for sale in varying quantities. He admitted that he had a set price list for the different amounts. He also admitted that he had been selling the drug for a year, including having sold it two days before he was arrested. These facts are not consistent with an occasional or isolated sale, but rather with one who is involved in drug dealing on a regular basis.

Defendant's second specific argument on appeal, that the Prosecutor failed to consider all of the relevant criteria relating to his application, is equally unpersuasive. In particular, defendant argues that the Prosecutor failed to take into account his age, the absence of a prior criminal record, his cooperation with the police and his desire to accept guilt for the offense and begin his rehabilitation. Defendant presented each of these arguments to the Law Division judge who concluded, based on his review of the record, that the Prosecutor had considered each of the relevant criteria and who therefore rejected this argument. Our independent review of the record compels us to agree with the Law Division judge's analysis and we defer to his factual findings in support of his decision to reject this argument, which are based upon substantial, credible evidence in the record. See State v. Locurto, 157 N.J. 463, 472 (1999).

Finally, defendant argues that the Prosecutor inappropriately denied his PTI application based on his refusal to become an informant. The Law Division judge considered and rejected this argument as a matter of fact and our review reveals no basis on which to reach a contrary conclusion. As the record reflects, after defendant's PTI application was rejected, defendant approached the Prosecutor to discuss that decision. Only in the context of defendant's request that the Prosecutor change his previously-made decision to reject the PTI application was there, purportedly, a discussion about defendant's further cooperation. In light of the fact that the decision to deny defendant's PTI application was made prior to any discussion about his possible cooperation, we reject the argument on appeal that defendant's refusal to do so in any way affected the Prosecutor's decision.

Affirmed.

 

The indictment also included charges relating to a co-defendant that are not relevant to the issues raised on appeal.

Nothing in the Law Division's decision on which defendant relies, see State v. Marie, 200 N.J. Super. 424 (Law Div. 1984), is to the contrary. There, the Law Division judge remanded the question of PTI admission for further consideration of whether the evidence was sufficient to support an inference that a passenger in a vehicle containing a large quantity of marijuana was involved in the criminal activity and whether the quantity alone could demonstrate anything other than a single transaction. Id. at 430. Here, defendant's own statements and the fact that the drug was already packaged for distribution, with a fixed price list, distinguish his situation from the one considered in Marie.

(continued)

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A-0647-05T1

August 16, 2006