STATE OF NEW JERSEY v. LESTER W. COLLINS, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6649-05T56649-05T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

LESTER W. COLLINS, JR.,

Defendant-Respondent.

_______________________________

 

Submitted: March 20, 2007 - Decided April 13, 2007

Before Judges Kestin, Weissbard and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Salem County, 05-10-341 and 05-12-434.

John T. Lenahan, Salem County Prosecutor, attorney for appellant (John C. Wright, Assistant Prosecutor, on the brief).

Telsey & Puma, attorneys for respondent (Benjamin C. Telsey, of counsel; Andrea Rhea, on the brief).

PER CURIAM

Defendant was charged in two Salem County indictments, nos. 05-10-341 and 05-12-434, with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1), on separate dates in 2005. The earlier indictment, in its second count, also charged distribution of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(3). The later indictment, in its second count, also charged possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(5). Defendant applied for admission to the vicinage drug court program. The prosecutor rejected the application on the ground that defendant was ineligible because he was "a dealer for profit."

On April 21, 2006, the trial court heard argument on defendant's motion "for an order permitting a sentence of special probation over the Prosecutor's objection;" and granted the motion, ruling:

In this particular instance, the Court must look at the facts of the case, as well as its relevant circumstances. And I have determined that the standard that this Court must use is whether there has been a patent and gross abuse of . . . discretion by the prosecution in order to object to the admission of Mr. Collins to Drug Court.

In this particular instance, Mr. Collins does have two prior adjudications; one for theft and one for possession. However, there appear to be no convictions as an adult.

The facts of the instant case, the amount of drugs that are involved, the fact that a scale was in his possession in the car with the drugs, the manner that the drugs were packaged and I believe there were several packages as well as the money of $1,800 found during the second arrest, as well as a direct sale in the first arrest . . . and they are two matters that are before me at this time; the one actual distribution, as well as the possession with the intent.

The Court has considered . . . the circumstances of the two arrests themselves. And there's been no indication of successful or unsuccessful opportunities for treatment. There are only the two present cases. And they're two separate cases . . . just the for-profit . . . motive.

Although the circumstances of both arrests would simply cause the Court to be concerned, I believe that [State v.] Hester[, 357 N.J. Super. 428 (App. Div. 2003),] does indicate that I must look at convictions in determining whether there would be the eligibility. It certainly seems clear from a summary of the facts, however, there are no convictions in the history that would require the Court to reject this application.

Therefore, I do find . . . given the history of this defendant, that it is a patent and gross abuse of the discretion of the prosecution to deny him admission because at this point there is nothing in his history that would require that under the statute or under the case law of Hester or [State v.] Matthews[, 378 N.J. Super. 396 (App. Div. 2005)].

On the State's application, the order was stayed and, on June 2, 2006, the parties entered into a comprehensive plea agreement in which defendant agreed to plead guilty to the second count of each indictment, and the State "reserve[d] the right to appeal defendant's entry into Drug Court made over the State's objection, upon sentencing." The recommended sentence in the plea agreement was a five-year term under the auspices of the drug court program or, in the alternative, a three-year prison term.

On July 28, 2006, the trial court imposed concurrent sentences on the two indictments: five-year drug court terms with standard conditions, and payment of statutorily mandated fees, assessments and penalties, as well as a driver's license suspension and provision of a DNA sample. The remaining counts of the indictments were dismissed. Execution of the sentence was stayed pending appeal.

The State then filed a motion for leave to appeal. On September 14, 2006, we ruled that the State was entitled to appeal as of right.

In a single point on appeal, the State argues:

THE TRIAL COURT ERRED BY FINDING A PATENT AND GROSS ABUSE OF DISCRETION AND OVERRIDING THE LEGAL OBJECTION RAISED BY THE STATE AS TO THE ELIGIBILITY OF THE RESPONDENT FOR SPECIAL PROBATION AS ESTABLISHED UNDER N.J.S.A. 2C:35-14 (DRUG COURT).

We reverse the trial court's ruling admitting defendant to the drug court program and remand for resentencing in the light of the alternative sentence provided in the plea agreement.

We have taken the background facts from the April 21, 2006 hearing before the trial court. A transcript of the plea proceeding has not been furnished as part of the record on appeal.

On March 29, 2005, the defendant sold three bags of cocaine to an undercover narcotics investigator, who was acting pursuant to information provided by a confidential informant. The undercover investigator purchased from defendant three twenty- dollar bags of cocaine for fifty dollars. On June 21, 2005, a warrant for defendant's arrest was executed. The police found defendant sleeping in an automobile. Upon removing defendant from the automobile, the arresting officer observed, in plain view, a bag of suspected marijuana in the driver side door compartment. A search of the automobile revealed two medium-size sandwich bags of marijuana, thirty-four bags of cocaine packaged for distribution, one vial of crack, and a Panasonic digital scale. A search of defendant's person incident to his arrest produced $1,801.00. These discoveries led to the charges in the second indictment.

Our review of the record in the light of the arguments advanced by the parties and prevailing legal standards discloses that the trial court's ruling regarding defendant's admission to the drug court program was a misapplication of discretion. The "'patent and gross abuse of discretion' standard" that governs a court's evaluation of a prosecutor's rejection of a defendant's enrollment in a drug court program, "has evolved from our case law regarding PTI" (pretrial intervention programs). Hester, supra, 357 N.J. Super. at 441. Prosecutorial rejections of PTI applications are only rarely overturned. See State v. Baynes, 148 N.J. 434, 443 (1997). They are to be evaluated by an "enhanced deference" standard. See State v. Brooks, 175 N.J. 215, 225 (2002)("patent and gross abuse of discretion" by prosecutor); State v. Wallace, 146 N.J. 576, 589 (1996)("clear error of judgment" by prosecutor); State v. Nwobu, 139 N.J. 236, 246 (1995)(quoting State v. Kraft, 265 N.J. Super. 106, 111-12 (App. Div. 1993)); State v. DeMarco, 107 N.J. 562, 566 (1987).

The substantive standards governing special probation, also called the drug court program, see Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:35-14 (2006), are found in N.J.S.A. 2C:35-14. Among defendant's arguments throughout has been his contention that

Nothing in [the] statute requires or specifically permits denial because the defendant may have been involved in selling the drugs. To the contrary, N.J.S.A. 2C:35-14a(3) provides that one is eligible for the special probation if the present offense was committed to acquire property or monies to support the person's drug or alcohol dependency, as is the case here.

The State emphasizes that the statute directs the court to "consider all relevant circumstances" in sentencing a defendant under its provisions. The State argues further that, given all factors, there has been no adequate showing satisfying the "patent and gross abuse of discretion" standard "'that the prosecutorial error complained of will clearly subvert the goals underlying' the Drug Court program." Hester, supra, 357 N.J. Super. at 443 (quoting Brooks, supra, 175 N.J. at 225).

We are persuaded by the State's arguments. The trial court, in reaching a conclusion contrary to that of the prosecutor, appears to have substituted its evaluation of the circumstances for that of the prosecutor, an impermissible basis of decision in the absence of clear indications of a patent and gross misjudgment on the prosecutor's part.

The judgments of conviction are vacated to the extent they provide for special probationary sentences, i.e., drug court. The matters are remanded for modification of the judgments of conviction following consideration of the alternative sentence provided in the plea agreement.

 

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A-6649-05T5

April 13, 2007