STATE OF NEW JERSEY v. RYAN NEFF

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2360-08T42360-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

RYAN NEFF,

Defendant-Respondent.

_______________________________

 

Submitted August 25, 2009 - Decided

Before Judges C.L. Miniman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-08-00599-I.

Wayne J. Forrest, Somerset County Prosecutor, attorney for appellant (Anthony J. Parenti, Jr., Assistant Prosecutor, of counsel and on the brief).

Arseneault, Whipple, Farmer, Fassett & Azzarello, LLP, attorneys for respondent (Jack Arseneault, of counsel and on the brief).

PER CURIAM

Plaintiff State of New Jersey appeals from a final judgment admitting defendant Ryan Neff into the Somerset County Pretrial Intervention Program (PTI) over the State's objection. Because the prosecutor's reasons for denying admission into PTI were unfounded, he clearly erred in his judgment and we affirm to avoid an egregious injustice.

Defendant, as well as Ian D. Witt, Harrison S. Fischberg, and Tyler J. Wilson, were all arrested on June 24, 2008, and charged with second-degree possession of marijuana with intent to dis tribute, contrary to N.J.S.A. 2C:35-5b(10)(b); second-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(1); and second-degree conspiracy to distribute marijuana, contrary to N.J.S.A. 2C:5-2. However, the grand jury subsequently returned an indictment charging defendant with only third-degree posses sion of marijuana with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(11); fourth-degree possession of marijuana, contrary to N.J.S.A. 2C:35-10a(3); third-degree pos session of hashish with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(11); and fourth-degree possession of hashish, contrary to N.J.S.A. 2C:35-10a(3).

On June 24, 2008, a Federal Express employee notified the State Police that she opened a suspicious package and found about eleven pounds of suspected marijuana. She then entered information into the Federal Express tracking system that the package could not be delivered due to an incorrect address and that the recipient would have to pick up the package in person at the Federal Express store. The State Police responded, inspected the package, and observed clear, heat-sealed bags of suspected marijuana.

While the police were at the store, the sender of the pack age, Kevin Rose, called inquiring about its status. He told the Federal Express employee with whom he spoke to leave the package at the store and defendant would arrive and accept delivery. The package was resealed and the State Police set up surveillance of the front door.

Later that morning, defendant, Witt, Fischberg, and Wilson arrived in a BMW being driven by defendant. Defendant entered the store alone, inquired about the package, provided identification, signed for the package, and returned to the BMW, placing the package in the trunk. As defendant pulled out of the park ing lot, surveillance units followed him for a period of time and then effected a motor vehicle stop. Defendant was asked about his movements and he admitted picking up a package at Fed eral Express, which he claimed was at the request of his mother. He refused to permit a search of his vehicle. All four occu pants were arrested and taken to the Somerville Barracks. There, a narcotic-detector dog gave a positive alert to the odor of a controlled dangerous substance (CDS) coming from the trunk of the vehicle. A search warrant was sought and issued after which the State Police seized an amount of marijuana and hashish sufficient to indicate intent to distribute.

On September 11, 2008, defendant applied for admission into PTI. He provided ten reasons why he should be admitted: (1) he had no intent to distribute and had invested no money in the transaction; (2) although he had a substance abuse problem, he was not a drug addict; (3) he planned to participate in an Outward Bound program from September 20 to December 20, 2008, to rehabilitate himself; (4) he would then enroll in a community college in Washington, D.C., to "distance himself from the peo ple [with] whom [he] got [him]self into this mess" and to pre pare him to return to Fordham University in the Fall of 2009; (5) he had not used marijuana since his arrest and had test results to prove it; (6) this was his first offense; (7) it was a nonvio lent offense; (8) the charges were third- and fourth-degree offenses, with the weight of the CDS not being a basis for a PTI decision; (9) he had a very strong desire to enroll in PTI and the testing would prevent him from relapsing; and (10) he had been duped by his friends, was not a drug dealer, never purchased more than one ounce of marijuana at a time, and recognized that marijuana had contributed to his academic suspension from Ford ham, vowing never to be one of those people who "drop out of college and live with their parents for the rest of their lives."

While this application was pending, defendant's counsel met with the prosecutor and provided him with defendant's resume, which recited his strong academic performance and other achievements and had attached photographs of his volunteer work in restoring homes in flood-ravaged areas of Iowa during July and August 2008. Defendant's counsel outlined the cooperation defendant would provide in the prosecution of Witt, Fischberg, and Wilson. When the prosecutor sought further information about this, defendant's counsel agreed to provide a more detailed description of defendant's offer of cooperation along with reasons why defendant should be admitted into PTI.

On October 7, 2008, the PTI director completed a PTI rejection form. The only reason advanced for not recommending PTI was "[t]he nature of the offense, N.J.S.A. 2C:43-12e(1)." At the bottom of the form the following statement appeared: "The State agrees that rejection is appropriate for the reasons expressed above. Should an appeal of this decision be filed, the State reserves the right to respond with a comprehensive analysis, including a statement of facts, reasons for rejection, and a citation of supporting legal authority." Although a space for the signature of the First Assistant Prosecutor followed this statement, the copy in the record on appeal was not signed. Defendant appealed this determination on October 15, 2008.

Also on October 15, 2008, defendant's counsel provided the prosecutor with a further specification of defendant's offer of cooperation, including corroboration of defendant's information respecting the respective roles of Witt, Fischberg, and Wilson, and set forth additional reasons for defendant's admission into PTI. As to the latter, counsel pointed out that defendant was the least culpable of the four defendants and should not be saddled with a criminal conviction where the other three apparently would not even be prosecuted. He argued that defendant satisfied Guidelines 1 and 2 and that the factors in Guideline 3 and N.J.S.A. 2C:43-12e clearly weighed in favor of PTI admission. Specifically, defendant met the age, residency and jurisdictional requirements; was a first offender who had never been on parole or probation; had never received the benefit of a diversionary program; was willing to cooperate and complete community service; and none of the seventeen factors in N.J.S.A. 2C:43-12 provided a reason for rejection.

The prosecutor on October 30, 2008, wrote to the judge, with a copy to defendant's counsel, stating the reason for the rejection was N.J.S.A. 2C:43-12e(2) (the facts of the case), apparently eschewing the nature of the offense cited by the PTI director. He also provided the State's analysis of the factors the statute requires PTI directors and prosecutors to consider. He provided no elaboration as to originally cited factor (1), but stated under factor (2) that the quantities of marijuana and hashish possessed were close to the second-degree range. Under factor (3), he stated that defendant was then twenty and his cooperation "was likely generated by a desire to avoid jail."

The prosecutor acknowledged that there was no identified victim other than society as a whole under factor (4) and that defendant's crime was caused by his substance-abuse problem under factor (5), noting that probation, the State's plea offer, would address this problem just as well as PTI. Under factor (6), he observed defendant's drug use was as likely to change through the criminal justice system as through PTI. As to factor (7), the prosecutor noted that society has a strong interest in prosecuting a defendant involved in the distribution of drugs on such a scale.

As to factors (8) and (9), the prosecutor noted that defendant had two juvenile arrests, one for possession of marijuana and one for underage possession of alcohol, resulting in a requirement for substance-abuse counseling. Under factor (10), the prosecutor stipulated that the crime was not violent. He concluded under factor (11) that prosecution would not exacerbate the social problem that led to defendant's criminal act because defendant's substance-abuse problem would be addressed with probation. He noted that defendant had no history of the use of physical violence toward others, factor (12).

In addressing factor (13), the prosecutor observed that "while defendant is not involved in traditional organized crime, defendant was involved in large scale drug distribution," although the State did "not put[] much emphasis on this factor." The prosecutor noted a public need for prosecution under factors (14) and (17), which he found outweighed the value of supervisory treatment. As to factors (15) and (16), the prosecutor observed "there are no codefendants." The prosecutor then concluded that defendant was not an appropriate candidate for PTI.

Both parties provided briefs for the judge's consideration and the motion was argued on December 22, 2008. The judge issued a written decision that he supplemented on January 12, 2009, after this appeal was filed. After reviewing the facts and stating applicable law, the judge found that the record before him was limited to the form the PTI director completed because that was all that existed at the time defendant appealed the denial of PTI. He found that the State had failed to give a timely written statement of its reasons for rejecting defendant's PTI application and that the form used by the PTI director did no more than parrot the language of the Guidelines, contrary to the requirements of State v. Ridgway, 208 N.J. Super. 118, 125 (Law Div. 1985) (citing State v. Atley, 157 N.J. Super. 157, 164 (App. Div. 1978)). He concluded that the State's subsequent statement of reasons was a mere afterthought which was not a part of the record.

The judge also found that the PTI director had failed to consider defendant's background in weighing the merit of his application, contrary to State v. Leonardis, 71 N.J. 85, 102 (1976) (Leonardis I), and State v. Nwobu, 139 N.J. 236, 249 (1995). Furthermore, in relying on the nature of the offense as a basis for rejection, the judge found the PTI director abused his discretion because under Guideline 3(i) this factor only applies to certain enumerated crimes and defendant's offense was not included therein. He also noted that the State no longer contended this factor applied, thus abandoning "the logic of the criminal division rejection letter." Noting that a defendant should not have to appeal a PTI rejection to learn the reasons for same, the judge found that the State had abused its discretion in rejecting defendant's PTI application.

The State contends that the judge impermissibly substituted his judgment for that of the prosecutor, even though the prosecutor considered all of the relevant factors, did not consider irrelevant factors, and did not subvert the goals of PTI when denying defendant's application for admission. It points out that judicial review of a prosecutor's decision to deny PTI admission is extremely limited and urges that a court-approved check-off denial form cannot defeat the presumption that the prosecutor considered all relevant factors. The State further argues that defendant did not present compelling reasons sufficient to overcome a general prohibition against admitting defendants who are part of an ongoing criminal enterprise. Finally, it asserts the judge failed to consider the entire record before concluding that the prosecutor's decision was a patent and gross abuse of prosecutorial discretion.

Our review of judicial findings of fact in connection with a PTI decision is limited to determining whether those fact findings could "reasonably have been reached on sufficient, credible evidence in the record." State v. McKeon, 385 N.J. Super. 559, 567 (App. Div. 2006). If so, our task is complete and we should not disturb the result. State v. Johnson, 42 N.J. 146, 162 (1964). However, the judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" McKeon, supra, 385 N.J. Super. at 567 (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)); cf. ERG Container Servs. v. Bd. of Chosen Freeholders, 352 N.J. Super. 166, 173 (App. Div. 2002) (the question whether the trial court correctly employed the appropriate standard of review for board action is a question of law and thus review is plenary).

In enacting N.J.S.A. 2C:43-12, the Legislature established the policy governing PTI and the reasons for its enactment, including:

It is the policy of the State of New Jersey that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey . . . when supervisory treatment would:

 
(1) Provide applicants, on an equal basis, with opportunities to avoid ordinary prose cution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an appli cant, and when there is apparent causal con nection between the offense charged and the rehabilitative or supervisory need, without which cause both the alleged offense and the need to prosecute might not have occurred; or

 
(2) Provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as pres ently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct; or

 
(3) Provide a mechanism for permitting the least burdensome form of prosecution possi ble for defendants charged with "victimless" offenses . . . .

 
[N.J.S.A. 2C:43-12a (emphasis added).]

The Legislature required that "[a]dmission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense." N.J.S.A. 2C:43-12b. It also required that "[t]he decision and reasons therefor made by . . . judges . . ., prosecutors and program directors in granting or denying applications for supervisory treatment . . . in all cases shall be reduced to writing and disclosed to the applicant." N.J.S.A. 2C:43-12c. Furthermore,

Each applicant for supervisory treatment shall be entitled to full and fair consideration of his application. If an application is denied, the program director or the prosecutor shall precisely state his findings and conclusion which shall include the facts upon which the application is based and the reasons offered for the denial. If the applicant desires to challenge the decision of a program director not to recommend, or of a prosecutor not to consent to, enrollment into a supervisory treatment program, a motion shall be filed before the designated judge (or assignment judge) authorized pursuant to the rules of court to enter orders.

[N.J.S.A. 2C:43-12f.]

The statement of reasons is important and "serves four purposes: (1) it facilitates effective judicial review; (2) it assists in evaluating the success of the PTI program; (3) it affords the defendant the opportunity to prepare a response; and (4) it dispels suspicions of arbitrariness." Nwobu, supra, 139 N.J. at 249 (citing Leonardis I, supra, 71 N.J. at 114-15).

The statement of reasons may not simply "parrot" the language of relevant statutes, rules, and guidelines. At a minimum, the prosecutor "should note the factors present in defendant's background or the offense purportedly committed which led [the prosecutor] to conclude that admission should be denied." Additionally, the statement of reasons must not be vague. Rather, the prosecutor's reasons for rejection of the PTI application must be stated with "sufficient specificity so that defendant has a meaningful opportunity to demonstrate that they are unfounded."

A reviewing court must assume, absent evidence to the contrary, that the prosecutor's office has considered all relevant factors in reaching the PTI decision. This presumption makes it very difficult to reverse a prosecutor's decision on that basis.

[Ibid. (citations omitted).]

In evaluating the evidence in light of this presumption, the judge must consider the PTI rejection memorandum, the prosecutor's statement of reasons after the defendant submits additional documentation, and the prosecutor's comments during oral argument. State v. Hoffman, 399 N.J. Super. 207, 215 (App. Div. 2008). This requirement is consistent with the court rule governing PTI, which provides in pertinent part as follows:

The criminal division manager shall complete the evaluation [of the PTI application] and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager's recommendation.

An appeal by the defendant shall be made on motion . . . within ten days after the rejection . . . .

[R. 3:28(h).]

Here, defendant appealed the PTI director's recommendation on October 15, 2008 - six days before the deadline for the prosecutor's determination. Although defendant was permitted to appeal the PTI director's decision not to recommend diversion to PTI, N.J.S.A. 2C:43-12f, the prosecutor may, nonetheless, make his own determination while that appeal is pending. The prosecutor did not complete his review and determination until nine days after it was due. The judge nonetheless erred when he refused to consider anything submitted by the prosecutor after the PTI rejection memorandum as the judge was required to consider everything that was before him. Hoffman, supra, 399 N.J. Super. at 215.

The scope of our review of a prosecutor's decision to deny PTI admission is "severely limited." Nwobu, supra, 139 N.J. at 246 (internal quotation omitted). His decision is "afforded great deference." Ibid. "Thus, judicial review, in actuality, exists to check only the most egregious examples of injustice and unfairness." Ibid. (internal quotation omitted). The defendant bears a heavy burden and must clearly and convincingly show that the prosecutor's decision was based on "a patent and gross abuse of his discretion." Ibid. (internal quotation omitted); see also State v. Watkins, 390 N.J. Super. 302, 306 (App. Div. 2007) (citing State v. Negran, 178 N.J. 73, 82 (2003); State v. Motley, 369 N.J. Super. 314, 321 (App. Div. 2004)). A prosecutor's decision "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (citing State v. Leonardis, 73 N.J. 360, 380 (1997) (Leonardis II)).

The Nwobu Court discussed "patent and gross abuse of [prosecutorial] discretion," which it had defined in State v. Bender, 80 N.J. 84, 93 (1979), as follows:

To meet that standard a party must show that the prosecutor's decision failed to consider all relevant factors, was based on irrelevant or inappropriate factors, or constituted a "clear error in judgment." Ibid. Additionally, an abuse of discretion is "patent and gross" if it is shown "that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention." Ibid. If a prosecutor fails to consider all relevant factors or considers irrelevant factors, a court may remand the matter for further consideration. State v. DeMarco, 107 N.J. 562, 567 (1987). If a prosecutor commits a clear error of judgment, a court may order that a defendant be enrolled in PTI. Ibid. "Whether the prosecutor has based his or her decision on an appropriate factor, however, is akin to a question of law, a matter on which an appellate court may supplant the prosecutor's decision." Ibid. (citing State v. Maddocks, . . . 80 N.J. [98,] 104-05 [(1979)].

[Nwobu, supra, 139 N.J. at 247.]

Thus, a patent and gross abuse of discretion "is a prosecutorial decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Wallace, supra, 146 N.J. at 582-83 (quoting Ridgway, supra, 208 N.J. Super. at 130 (citations omitted)). We review "to check only the most egregious examples of injustice and unfairness." DeMarco, supra, 107 N.J. at 566; see also Negran, supra, 178 N.J. at 82. We are satisfied that is present here.

Here, the prosecutor did not discuss factor (1) and relied heavily on factor (2), the facts of the case. In doing so, he set forth the evidence observed by the police, but he did not discuss any statements defendant or the other three individuals may have given to the police after their arrests or the information that defendant subsequently provided with respect to the roles of Witt, Fischberg, and Wilson, as outlined in his attorney's letter of October 15, 2008:

On Friday, June 20, 2008, Ian Witt and Harrison Fischburg asked Ryan Neff if they could ship a package to his home. They knew that Ryan's parents and the rest of his family were on vacation. Ryan did not agree at first. On Monday, June 23, 2008, Harrison Fischburg called Ian Witt from California. He had secured the marijuana that was eventually seized. On the morning of Monday, June 23, 2008, Ryan was at Fordham University. When he returned home, Ian again asked Ryan if they could send the package to his house. Unfortunately, Ryan agreed. Ian Witt said that Harrison would send the package to Ryan's home, but Ryan would have nothing to do with it other than to allow them to use his home. The shipping receipt specifically directed that no signature was necessary for delivery of the package.

Tyler Wilson was Ian Witt's friend who had been with Ian Witt on Monday when Ryan was at Fordham. On Monday evening, June 23rd, Tyler Wilson and Ian Witt stayed at the Neff home along with Ryan. They were the only occupants of the home. Ryan Neff believes that Tyler Wilson paid $700.00 to Witt and Fischburg for some of the marijuana. Early in the morning on Tuesday, June 24, 2008, Ian Witt, Tyler Wilson and Ryan Neff picked Harrison Fischburg up at Newark International Airport. He had flown back from California.

On June 24th, Ian Witt was anxious to receive the Federal Express delivery and he called Federal Express to check on the status of package. That call was made from the Neff home. A recording of that call, or the recipient, can identify Witt as the caller. Witt was told that the package could either be delivered the next day, or someone could pick it up at the Federal Express facility that same afternoon. It was at that time that Ryan Neff learned that the package was addressed to an Erin Neff, a fictitious name. The Federal Express employee informed Ian Witt that the package would have to be picked up by someone with the last name of Neff.

Ryan drove his father's car from his home in Far Hills to the Federal Express facility in Branchburg. Ryan's only role was to simply sign for the package, put it in the trunk and drive home. Once at home, the owners of the package, Ian Witt and Harrison Fischburg, would take possession of it.

Additionally, defendant's counsel advised the Assistant Prosecutor that Fischburg left the Federal Express receipt for the marijuana at defendant's home, which Fischburg had filled out in Arcata, California, indicating that "Kevin Rose" was the shipper. Also, Witt left his cell phone at the Neff residence and it contains text messages detailing "obvious drug transactions, including specific request for pill, specific dollar amounts, and specific requests for delivery information." Witt also left his car at the Neff residence and defendant's mother took pictures of it showing a bong in the front seat. Finally, counsel suggested the prosecutor could obtain verification of this information by tracking Fischburg's airplane trips to California and Federal Express shipments to Witt's stepfather.

Nothing in the record suggests that the information communicated by defendant's counsel was anything but accurate. Clearly, all of the facts of the case do not weigh against admission into PTI. In fact, they strongly favor it. Defendant was the least culpable of the four individuals involved in this drug transaction. The one fact cited by the Assistant Prosecutor - that the weight of the drugs was toward the upper limit for the third-degree offenses with which defendant was charged - is irrelevant because the weight was within the third-degree range and PTI decisions are to be based more on the conduct of the defendant and less on the charge. State v. Brooks, 175 N.J. 215, 224-25 (2002). The conduct of defendant strongly supports admission into PTI because he advanced no money for the purchase of the drugs and did not personally intend to distribute them.

With respect to defendant's motivation and age, N.J.S.A. 2C:43-12e(3), the prosecutor acknowledged that defendant was only nineteen at the time of the offense but observed that his motivation was "more likely generated by a desire to avoid a conviction and jail, than anything else." Presumably, all defendants seek to avoid conviction and jail. This reason misconceives the nature of this factor, which requires the prosecutor to consider whether defendant is motivated to succeed in a rehabilitative program, not whether he is motivated to avoid jail. See State v. Cannon, 128 N.J. 546, 554 (1992) ("Weighed in the balance is the motivation of the defendant, the strength of his or her desire for rehabilitation, the strength of the community support group, and all other conditions bearing on the likelihood of success of the applicant."). The evidence clearly suggests that defendant is highly motivated to succeed in a rehabilitative program. He voluntarily undertook steps at self-rehabilitation by participating in an Outward Bound program, doing volunteer work in Iowa, enrolling in a community college a good distance from the youths who entangled him in his crimes, and stopping his marijuana abuse. His intent to return to his undergraduate studies this fall is further evidence of his motivation to succeed in rehabilitating himself. Thus, factor (3) strongly favors admission into PTI.

The absence of factors (4), (10), and (12) certainly weigh in favor of admission to PTI. Defendant has not demonstrated under factor (5) that services to address his substance abuse are not available in the criminal justice system or that they may be more effectively provided through PTI. Thus, factor (5) weighs in favor of rejection, as does factor (6).

Factor (7), the interests of society, were not adequately considered by the prosecutor because those interests are not limited to prosecution of crimes but include the policies expressed by the Legislature in enacting N.J.S.A. 2C:43-12.

As to factors (8) and (9), both juvenile complaints charged disorderly persons offenses, one involving marijuana, and both were dismissed at the request of the prosecutor, one on condition that defendant remain arrest free, obtain a substance-abuse evaluation, and follow any recommendations. He fulfilled these conditions, resulting in the dismissal. No guilt may be inferred from those dismissed charges. Brooks, supra, 175 N.J. at 229. They may be considered only from the perspective of whether they "should have deterred the defendant from committing a subsequent offense." Ibid. A PTI rejection letter "must reflect only a proper consideration of such information." Ibid. Here, the prosecutor's rejection letter did not comply with this requirement. Furthermore, "some juvenile adjudications may be so minor . . . that they provide no reasonable basis on which to reject an otherwise meritorious PTI application." Id. at 229-30. Such is the case here.

As to factor (11), whether or not prosecution would exacerbate dependent's drug abuse, the prosecutor's conclusion that it would not is premised on an assumption that defendant would accept the prosecutor's plea offer. This factor should not be evaluated based on such assumption. Defendant may have tried the case, hoping to prove he did not have the requisite mens rea. If he was found guilty, incarceration with hardened drug offenders certainly would have the capacity to exacerbate his substance-abuse problem.

As to factor (13), we have previously held "organized crime is not synonymous with a well thought out criminal act." State v. Kern, 325 N.J. Super. 435, 441 (App. Div. 1999). Neither is it synonymous with large-scale drug distribution. The absence of factor (13) favors admission into PTI.

As to factors (14) and (17), the prosecutor merely parroted the statute. Here, the crime, especially in light of the facts of the case, is not "of such a nature that the value of supervisory treatment is outweighed by the public need for prosecution" N.J.S.A. 2C:43-12e(14), nor will "the harm done to society by abandoning criminal prosecution . . . outweigh the benefits to society from channeling [defendant] into a supervisory treatment program," N.J.S.A. 2C:43-12e(17). Defendant graduated from Bernards High School in June 2007 after taking Honors, AP, and IP courses throughout all four years of high school with emphasis on Latin, English, and History. At Fordham, he participated in the Fordham Finance Society, the Peer Leadership program, the Student Faculty Forum, and Operation Iraqi Children. He participated in school athletics and had engaged in competitive skiing since kindergarten. He received a National Latin Award cum laude twice and also a Community Service Award each year in high school. He attended summer programs at Cornell and Brown and worked during the summer of 2006 and winter of 2007. He also raised money for charity by participating in a bike ride for diabetes, running in Miles for Matheny, and collecting clothing from 2003 through 2007 for a battered women's shelter. Society will certainly benefit from having this young man diverted through PTI so he will have an opportunity to be rehabilitated and continue to contribute his considerable skills to the betterment of society without the burden of a criminal conviction. This far outweighs any value to prosecution.

Finally, we note that factors (15) and (16) do not apply because the prosecutor elected not to prosecute the other three individuals who had been arrested. Thus, these factors weigh in favor of admission to PTI.

It is undisputed that defendant qualifies for PTI. Furthermore, the policies that infuse PTI support admission. Early rehabilitative services and supervision "can reasonably be expected to deter future criminal behavior," defendant's drug abuse will be addressed by those services and supervision, and but for that drug abuse the crime and "the need to prosecute might not have occurred." N.J.S.A. 2C:43-12a(1). Defendant, in light of his academic and other achievements, "might be harmed by the imposition of criminal sanctions" and PTI can be expected to serve as sufficient deterrence. N.J.S.A. 2C:43-12a(2). PTI for defendant would also "[p]rovide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with 'victimless' offenses." N.J.S.A. 2C:43-12a(3). Rejection from PTI "will clearly subvert the goals underlying Pretrial Intervention." Nwobu, supra, 139 N.J. at 247 (citation omitted).

In rejecting defendant's PTI application, the prosecutor did not explain how he measured the defendant's application "according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense," as required by N.J.S.A. 2C:43-12b. He certainly did not find that defendant was not amenable to correction and would not respond to rehabilitation. Defendant has clearly and convincingly established that he is amenable to correction and will respond to rehabilitation, and the nature of the offense does not contraindicate PTI admission.

 
Affirmed.

Defendant was nineteen years old at the time of his arrest.

This weight estimate was apparently erroneous. The second-degree charges were consistent with this estimate, but the actual weight of the marijuana and hashish was within the weight range for third-degree crimes, resulting in the downgraded charges in the indictment.

The record does not establish the date of this meeting.

N.J.S.A. 2C:43-12 governs PTI and the cited subsection provides:

e. Referral. At any time prior to trial but after . . . the return of an indictment, with the consent of the prosecutor and upon written recommendation of the program director, the assignment judge or a judge designated by him may postpone all further proceedings against an applicant and refer said applicant to a program of supervisory treatment approved by the Supreme Court. Prosecutors and program directors shall consider in formulating their recommendation of an applicant's participation in a supervisory treatment program, among others, the following criteria:

(1) The nature of the offense[.]

The confusion between the PTI Director's recommendation and the prosecutor's rejection was unfortunately induced by the typewritten, but unsigned, statement at the bottom of the form used by the PTI director. The statement should be removed from the form as the statute clearly requires the prosecutor to give his statement of reasons with his written rejection, not after an appeal has been filed. See N.J.S.A. 2C:43-12c.

Those statements, if any were given, are not in the record before us.

(continued)

(continued)

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A-2360-08T4

October 16, 2009