STATE OF NEW JERSEY v. JOVAN ALVAREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0501-08T40501-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOVAN ALVAREZ,

Defendant-Appellant.

________________________________________________

 

Argued November 2, 2009 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0711.

Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Ms. Personette, of counsel and on the brief).

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

PER CURIAM

Defendant Jovan Alvarez appeals his judgment of conviction of August 15, 2008, on the basis that the prosecutor abused his discretion in refusing defendant admission into the pretrial intervention program (PTI) governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey. We agree. Although defendant was accepted into the PTI program, the prosecutor objected to his admission into the program on the basis that defendant did not accept full responsibility for his criminal conduct. The record does not support this assertion. We reverse the conviction and direct that defendant be admitted into the PTI program.

I

In March of 2007, defendant was a full-time student at the William Paterson University scheduled to receive a BA Degree in Music Performance that summer. He planned to pursue a masters degree in music and was considering studying at The Juilliard School. He was living with college roommates.

On two occasions defendant sold marijuana to confidential informants working with the Passaic County Prosecutor's Office. The confidential informants were individuals known to defendant. As a result, on March 22, 2007, the Prosecutor's Office executed a search warrant on defendant's apartment and found seventeen bags containing marijuana, some bags and a container with marijuana residue, a pack of rolling papers, a silver grinder, two boxes of empty bags, and a pipe with suspected marijuana residue.

Defendant's roommate provided the Prosecutor's Office with a written, signed statement dated April 13, 2007, in which he advised that on occasion he would purchase marijuana from defendant and that on other occasions defendant would give him the marijuana free. The roommate would pay defendant between twenty to fifty dollars for the marijuana when he purchased it, and he would buy marijuana from defendant about once every week or two.

Defendant was indicted on May 31, 2007, for fourth-degree possession of marijuana in excess of fifty grams, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11) (count two); and third-degree possession of marijuana with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count three).

On July 9, 2007, the prosecutor consented to allow defendant to apply to PTI out of time. At the time of the PTI evaluation, defendant was living with his parents, attending school, working as a freelance musician, teaching music, and undergoing substance abuse counseling. He had no prior criminal or juvenile proceedings. The Director of the PTI program found defendant suitable for the program based on the following four factors: (1) defendant accepted responsibility for his involvement in the offenses, expressed remorse and was amenable to rehabilitation; (2) defendant, twenty-two years old, had no prior arrest history or "severe correctional problem" and PTI should be a sufficient sanction to deter future criminal activity; (3) defendant was willing to pay fines and perform in community service, thereby demonstrating amenability to rehabilitation; and (4) a causal connection appeared to exist between the offense and a need for rehabilitation, since defendant had a "significant history of marijuana use" and was receiving substance abuse treatment.

Despite this favorable recommendation, the prosecutor objected to defendant's enrollment into PTI. Before doing so, the Prosecutor's Office had requested defendant to serve as a confidential informant. Defendant had declined.

Pursuant to Rule 3:28(h) defendant moved for admittance into PTI despite the prosecutor's objection. In his motion, defendant contended that the prosecutor objected to his enrollment into PTI because he refused to serve as a confidential informant. The Prosecutor's Office denied this assertion and maintained that it objected to the enrollment because defendant had not accepted responsibility for his conduct and was minimizing what he did. The Prosecutor's Office noted that defendant's activity took place within 1,000 feet of a school and that the marijuana was in defendant's possession for distribution and not personal use.

At oral argument on the motion before the trial court on November 13, 2007, the Prosecutor's Office reiterated that it objected to PTI enrollment because defendant would not accept responsibility for his conduct. Upon inquiry by the trial court, the defense indicated that defendant would plead guilty to the distribution charges as part of an arrangement to be admitted into PTI. The Prosecutor's Office rejected this alternative. Its offer was a plea with a three-year sentence of imprisonment, eighteen months without parole. The trial court denied defendant's appeal, concluding that the prosecutor was not arbitrary or capricious in denying the application.

Defendant thereafter pled guilty pursuant to a plea agreement to possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11). He was sentenced to three years probation. Defendant now appeals the denial of his acceptance into PTI. See R. 3:28(g) (providing that "[d]enial of acceptance [into PTI] may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty").

II

PTI is a diversionary program permitting those charged with criminal conduct "to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). It is designed "to assist in the rehabilitation of worthy defendants, and, in the process, to spare them the rigors of the criminal justice system. Eligibility is broad and includes all defendants who demonstrate the will to effect necessary behavioral change such that society can have confidence that they will not engage in future criminality." State v. Watkins, 193 N.J. 507, 513 (2008). The purposes of PTI are (a) to provide rehabilitative services which can reasonably be expected to deter criminal conduct, when "there is an apparent causal connection between the offense charged and the rehabilitative need"; (b) to provide alternatives to defendants who might be harmed by a criminal sanction when the alternative is a sufficient sanction to deter further criminal conduct; (c) to permit "the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses"; (d) to allow the overburdened criminal calendar to focus criminal justice resources on serious criminal matters; and (e) to deter further criminal or disorderly conduct. See Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, appendix to R. 3:28 (Guideline 1).

Diversion into a PTI program is a "quintessentially prosecutorial function," and the prosecutor has broad discretion to decide whether a defendant should be admitted into PTI. State v. Wallace, 146 N.J. 576, 582 (1996). However, that discretion, while broad, is not unlimited. The exercise of that discretion must be guided by the purposes of the program and the criteria set forth in the governing statute and court rule for admission into PTI. N.J.S.A. 2C:43-12(e); R. 3:28; Guidelines for Operation of Pretrial Intervention in New Jersey, supra.

The court will overturn a prosecutor's decision denying PTI where it finds a "patent and gross abuse of discretion." State v. Watkins, supra, 193 N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007)). The defendant bears the burden of showing by clear and convincing evidence that this standard has been met. Ibid. For a prosecutor's decision denying PTI to represent a "patent and gross abuse of discretion," the decision must have "gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." Ibid. (quoting State v. Wallace, supra, 146 N.J. at 582-83). That standard is met where the decision "(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. Negran, 178 N.J. 73, 83 (2003) (quoting State v. Bender, 80 N.J. 84, 93 (1979)).

In this case, defendant meets the criteria set forth in Guideline 3, namely he is of the appropriate age, satisfies the residency and jurisdictional requirements, the violation is not so minor that PTI is inapplicable, and he has no prior record. Guidelines for Operation of Pretrial Intervention in New Jersey, supra. Application of the statutory criteria to the facts in this case also indicate defendant's eligibility for the program. Specifically, when considering the nature of the offense and facts of the case, N.J.S.A. 2C:43-12(e)(1) and (2), we note that inordinately large quantities of drugs were not involved nor was defendant a leader in a widespread distribution ring. When considering the motivation and age of the defendant, N.J.S.A. 2C:43-12(e)(3), we note defendant's youth, twenty-two years old, and his explanation that he was selling in order to sustain his own habit. No complainant or victim is identified seeking prosecution. See N.J.S.A. 2C:43-12(e)(4). Defendant's drug dependence led to the offenses, and supervisory treatment may best address this behavior. See N.J.S.A. 2C:43-12(e)(5) and (6) (providing that personal problems related to the crime and addressed through treatment available in PTI may control the criminal behavior).

When looking at the needs of the victim and society, N.J.S.A. 2C:43-12(e)(7), and whether due to the nature of the crime "the value of supervisory treatment [is] outweighed by the public need for prosecution," N.J.S.A. 2C:43-12(e)(14), we note that society is served by allowing this young man to continue with his career in music without being hampered by a criminal record provided future criminal conduct is deterred. Defendant has no continuing pattern of anti-social behavior, see N.J.S.A. 2C:43-12(e)(8); he has no prior record and presents no substantial danger to others, see N.J.S.A. 2C:43-12(e)(9); the crimes were not crimes of violence and defendant has no pattern or violence toward others, see N.J.S.A. 2C:43-12(e)(10) and (12); and he was not involved with organized crime, see N.J.S.A. 2C:43-12(e)(13). It is unclear whether "prosecution would exacerbate the social problem that led to [defendant's] criminal act." See N.J.S.A. 2C:43-12(e)(11). Nothing in the record indicates that the involvement of other people charged in the crimes "is such that the interest of the State would be best served" by utilizing the traditional criminal justice system procedures or that defendant's enrollment in PTI would adversely affect prosecution of codefendants. See N.J.S.A. 2C:43-12(e)(15) and (16). Thus, an analysis of the statutory criteria inexorably leads to the conclusion that PTI was appropriate for this defendant.

The prosecutor's sole reason for denying defendant admission into PTI is that he allegedly had not accepted responsibility for his crime and attempted to minimize his involvement. The record simply does not support this assertion by the prosecutor. The prosecutor rested the conclusion that defendant had not accepted responsibility for his conduct on defendant's statements set forth in the PTI evaluation. However, a review of those statements does not support the prosecutor's position, because the defendant did admit his involvement in the crimes and expressed his remorse. With respect to defendant's version of the crimes, the PTI evaluation states:

The defendant was interviewed on [August 31, 2007], at the Criminal Division Manager's Office. At that time, the instant indictment and corresponding police material were reviewed and the defendant confirmed their authenticity. Also at that time, the defendant maintained his guilt to the instant offense and offered the following comments: "I started to smoke marijuana during my second year of college. It was a daily habit. I was friends with a musician who used marijuana so I would go to New York to buy marijuana for myself and my friends. I was not profiting other than for my personal marijuana use. People found out about what I was doing and some recent graduates 'ratted me out.'"

The defendant was informed that he was required to submit reasons to justify his enrollment into the PTI Program. In response, the defendant gave the following statement: "I am very sorry for what I did. This will never happen again. It has been a bad experience. I play and teach music. I want to earn my master's degree and possibly attend Juilliard School. I will comply with all conditions of PTI supervision."

We do not find a factual basis in this statement to support the prosecutor's conclusion that defendant did not accept responsibility for his criminal conduct. Defendant quite plainly admitted that he had been using and distributing marijuana and that he was very sorry he had done so. Although the prosecutor specifically contended that defendant denied selling drugs and claimed he only used them, that is a clearly mistaken reading of the PTI interview record. Defendant admitted selling drugs, but explained that he was doing so to support his own drug habit. Defendant's statement in the PTI evaluation supports the PTI Program Director's conclusion that "[t]he defendant accepted responsibility for his involvement in the instant offense and further expressed remorse for his actions. This is viewed as an indication of his apparent amenability to rehabilitation."

We conclude that the prosecutor's decision to deny defendant admission into the PTI program goes "so wide of the mark" that it constitutes a "patent and gross abuse of discretion." Defendant is a good candidate for the rehabilitative efforts of PTI. This was his first involvement with the criminal system, and he had no prior juvenile record. No physical violence was involved. He was otherwise involved in a productive life, on the verge of graduating from a university as a music major. In addition to his studies, he was also working. The charges arose out of his personal dependence on marijuana which he was addressing through substance abuse counseling. Based on this record, there was every reason to believe that the purposes of PTI would be fulfilled with defendant's admission into the program, namely that defendant would become rehabilitated and refrain from further criminal conduct. The reasons the prosecutor gave for denying the application are not supported by the facts in the record.

 
Defendant's conviction is reversed, and he shall be admitted into the PTI program. The time he has spent on probation for this offense shall be counted toward his time in PTI.

Reversed.

There is no evidence in the record to refute defendant's assertion that he was drug dependent and that he voluntarily sought treatment after his arrest.

(continued)

(continued)

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A-0501-08T4

November 24, 2009