STATE OF NEW JERSEY v. JAMES ANASTI

 
(NOTE: The status of this decision is Published.)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3172-09T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMES ANASTI,

Defendant-Respondent.

________________________________________________________________

October 12, 2010

 

Argued September 14, 2010 - Decided

 

Before Judges Parrillo and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-08-00545.

 

William A. Guhl, Special Deputy Attorney General, argued the cause for appellant (A. Peter DeMarco, Jr., Acting Somerset County Prosecutor, attorney; Mr. Guhl, on the brief).

 

Marc J. Friedman argued the cause for respondent.

 

PER CURIAM

The State appeals from an order that admitted defendant into the pretrial intervention program (PTI) over its objection. We affirm.

Defendant was the driver of an automobile that was stopped in June 2009 by a Warren Township police officer for a motor vehicle infraction. The officer observed a partially smoked marijuana cigarette and a plastic bag containing marijuana in the vehicle in plain view. After defendant declined to give his consent to a search, he and his passenger were arrested and the automobile was impounded. The police obtained a search warrant for the automobile and discovered approximately two pounds of marijuana, a digital scale, five empty plastic bags, a glass pipe and a grinder. A detective from the Somerset County Prosecutor's Office prepared an expert report in which he stated that the value of the marijuana seized was approximately $2000 to $4000 if sold in quantities of one pound and a value of $9920 to $14,880 if broken down into one-eighth ounce quantities.

Defendant was indicted for third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(11), and was also issued four summonses for motor vehicle violations, including possession of a controlled dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1.

Defendant applied for PTI. The PTI Director recommended that he be admitted into PTI and cited the following reasons: (1) "the crime . . . charged represent[s] an isolated event, the defendant does not have a record of criminal and penal violations, and the defendant does not present a substantial danger to others. N.J.S.A. 2C:43-12c(8); N.J.S.A. 2C:43-12c(9)" and (2) "A Somerset County TASC [Treatment Assessment Services for the Courts] evaluation determined that the defendant is Cannabis dependent and recommends a Level 1 Outpatient treatment program.1 The defendant is currently enrolled in treatment at White Deer Run Treatment Center. The defendant tested negative for CDS at his TASC evaluation."

By letter dated November 13, 2009, the State rejected defendant's application pursuant to Rule 3:28. In setting forth its reasons, the State reviewed the criteria in N.J.S.A. 2C:43-12e and the guidelines in R. 3:28.

Noting that the impact on the prosecution of the co-defendant was a relevant consideration pursuant to Guideline 3(j), the prosecutor stated,

Here, there is a co-defendant [] who is charged with joint possession of the marijuana and the paraphernalia. While the recommendation lists truthful testimony against co-defendant, defendant did not give a statement; there is no indication what that statement will be. In this case, the bulk of the marijuana was recovered in the trunk of the car, which is registered to [defendant's mother]. . . . Thus, adverse consequences would flow to the State in its prosecution of co-defendant [] by permitting defendant entry into PTI.

 

The prosecutor's comments regarding each of the criteria set forth in N.J.S.A. 2C:43-12e follow:

(1) The nature of the offense;

Here defendant is charged with possession with the intent to distribute. The distribution of drugs and its harmful effects are well known. It is not just this case, but the ripple effects that drug dealing has upon society. The consequences of the acts of those who become addicted to drugs that are dealt to them by individuals like defendant are felt not only by the user but that person's friends and families and the countless innocent third parties who become victims of burglaries and thefts. Drug distribution, whatever the drug may be, is quite serious.

(2) The facts of the case;

Defendant was in possession of a large quantity of marijuana - two pounds. This is not a situation where defendant is sharing a joint with a friend. This is a situation where defendant and co-defendant have an amount of marijuana that will yield thousands of joints and thousands of dollars.

(3) The motivation and age of the defendant;

[T]he State notes that defendant is 20 years old and . . . is enrolled in treatment. However, the State has been provided with no specifics.

(4) The desire of the complainant or victim to forego prosecution;

Not applicable.

(5) The 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;

(6) The 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 State responded to factors five and six in one response:

Treatment for defendant's cannabis addiction is available through the criminal justice system. There is nothing unique about that. Those issues can be just as effectively treated through probation supervision.

 

(7) The needs and interests of the victim and society;

There is a strong need to prosecute those who deal drugs, especially when one considers, as noted above, the ripple effects of this behavior.

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

The State responded to factors eight and nine in one response:

[T]his is defendant's first arrest. However, to characterize this as an isolated incident is not accurate. If defendant is cannabis addicted, he has been violating the law for a substantial period of time by his use of marijuana. In addition, defendant's intended distribution would be in no way a one-shot deal with that amount of marijuana.

(10) Whether 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 crime is not assaultive.

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

Prosecution would have just as likely a chance of exacerbating whatever social problem defendant may have as diversion would.

(12) The history of the use of physical violence toward others;

[T]he State [is not] aware of any history of violence.

(13) Any involvement of the applicant with organized crime;

This is not traditional organized crime.

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

[A]s detailed above while discussing the nature of the crime, the State has determined that the public need for prosecution outweighs diversion.

(15) Whether 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;

(16) Whether or not the applicant's participation in pretrial intervention will adversely affect the prosecution of codefendants;

The State consolidated its comments regarding factors fifteen and sixteen:

As mentioned before, there would be as [sic] adverse effect on the prosecution of the co-defendant. Thus the interest of the State would best be served by prosecution.

(17) Whether 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.

Allowing a defendant with this amount of marijuana into PTI would harm society to the extent that the harm outweighs any benefit that defendant could get through diversion, which benefits are likewise available through traditional prosecution.

Defendant appealed from the prosecutor's determination pursuant to R. 3:28(h). In a written opinion, the trial court reversed the prosecutor's decision, finding it to be a "patent and gross abuse of discretion" that "'subvert[ed] the goals' underlying Pretrial Intervention.'" The trial court repeatedly characterized defendant's criminal act as "victimless," noted the absence of any prior criminal record and observed that his voluntary enrollment in the White Deer Run Treatment Center was "compelling evidence of the strength of Defendant's 'desire for rehabilitation.'" By order dated March 1, 2010, the court postponed all further proceedings for a period of twelve months and admitted defendant to PTI with the condition that he participate in drug/alcohol testing and/or counseling as directed.

The State appealed and presents the following issues for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN ADMITTING DEFENDANT TO PRETRIAL INTERVENTION OVER THE OBJECTION OF THE PROSECUTOR WHO PROPERLY CONSIDERED ALL OF THE PTI GUIDELINE FACTORS AND WHOSE DECISION DID NOT SUBVERT THE GOALS OF THE PROGRAM.

 

A. THE PROSECUTOR'S DENIAL OF ADMITTANCE TO PRETRIAL INTERVENTION WAS PROPERLY BASED ON THE GUIDELINES AND WAS NOT AN ABUSE OF DISCRETION.

 

B. THE TRIAL COURT EXCEEDED ITS DISCRETION BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE PROSECUTOR AND FAILING TO DEMONSTRATE A "PATENT AND GROSS ABUSE" OR "CLEAR ERROR IN JUDGMENT," IN THE PROSECUTOR'S DECISION.

 

POINT II

 

THE TRIAL COURT IMPROPERLY CITED AN UNPUBLISHED OPINION IN ISSUING ITS DECISION.

We disagree with the trial court's reasoning that the charge here was a "victimless offense," see State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) ("Distribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm."). However, after carefully considering the record, briefs and arguments of counsel, we are satisfied that the prosecutor's consideration of defendant's PTI application amounted to a clear error in judgment that subverts PTI's goals.

I

A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law, State v. Nwobu, 139 N.J. 236, 247 (1995), which we review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

It is essentially a prosecutorial function to decide whether to accept or reject a defendant's PTI application. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial," State v Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis II, supra, 73 N.J. at 380.)

The scope of judicial review of a prosecutor's decision to reject a defendant's application is severely limited. Nwobu, supra, 139 N.J. at 246. To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002); Nwobu, supra, 139 N.J. at 246. To warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex County Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).

"A prosecutor's discretion regarding a PTI application is not without its limits[.]" Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225. The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (citations omitted). As part of a determination that is "primarily individualistic in nature," Id. at 80, the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citing N.J.S.A. 2C:43-12b). See also State v. Mosner, 407 N.J. Super. 40, 55-56 (App. Div. 2009). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584 (emphasis added). See Nwobu, supra, 139 N.J. at 249. ("The statement of reasons may not simply 'parrot' the language of relevant statutes, rules, and guidelines.").

II

A review of the stated reasons for the prosecutor's rejection of defendant's application shows that the prosecutor failed to meet this standard.

As acknowledged by the prosecutor, this constituted defendant's first arrest. The offense itself was not of an assaultive or violent nature and there was no history of violence or "traditional organized crime." N.J.S.A. 2C:43-12e(10), (12), (13).

In addressing factors related to the impact of acceptance on the prosecution of co-defendants, N.J.S.A. 2C:43-12e(15), (16); R. 3:28, Guideline 3(j), the prosecutor relied on a conclusory and unrevealing statement that "adverse consequences would flow to the State" if defendant were admitted to PTI. Although the recommendation for acceptance included a requirement for truthful testimony against the co-defendant, the prosecutor discredited the impact of such cooperation on the prosecution on the grounds that "there is no indication what that statement will be." No consideration was given to the likelihood that truthful testimony would assist the prosecution, see Guideline 3(j), or that the willingness to cooperate might positively reflect on defendant's motivation, see N.J.S.A. 2C:43-12e(3), or represent a break in any pattern of anti-social behavior, see N.J.S.A. 2C:43-12e(8).

One of the stated goals of the PTI program is

To provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred.

 

[(R. 3:28, Guideline 1).]

 

A TASC evaluation determined that defendant was cannabis dependent. This, his first arrest, arose from an officer's observation of a partially smoked marijuana cigarette and a plastic bag containing marijuana in plain view in his automobile. Although the final charges included possession of a significant quantity of marijuana with the intent to distribute, the causal connection between his substance abuse and the offense here is evident. So, too, is the possibility that the rehabilitative services provided through PTI would be delivered "early . . . when such services can reasonably be expected to deter future criminal behavior by the defendant."

Again, despite the importance of the rehabilitative goal of PTI, it is not an overstatement to say that the prosecutor gave short shrift to the factors which call for a consideration of the benefits of rehabilitative supervision. Although defendant had already enrolled in a substance abuse treatment program, the prosecutor gave no weight to that fact in assessing his motivation, stating only that "the State has been provided with no specifics" regarding his treatment. See N.J.S.A. 2C:43-12e(3). As to the likelihood that defendant's crime is related to a condition that would be conducive to change through services more effectively provided in supervisory treatment, N.J.S.A. 2C:43-12e(6), the prosecutor merely noted that services for substance abuse are available through the criminal justice system without considering the comparable effectiveness of treatment without prosecution. In addressing whether the crime "is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution," see N.J.S.A. 2C:43-12e(5) and (6), the prosecutor again did not weigh any public need for prosecution against the value of supervisory treatment but merely relied on a conclusory statement that parroted the factor, "the State has determined that the public need for prosecution outweighs diversion." See N.J.S.A. 2C:43-12e(14).

Therefore, in weighing defendant's amenability to rehabilitation and the impact on the prosecution, both significant factors relevant to defendant's application, the prosecutor essentially relied upon a lack of information as a basis for denial. The deficiencies in the prosecutor's stated reasons were not limited to their superficiality, however. The reasons for rejection also reflect a misapprehension of the applicable law.

It is undisputed that defendant has no prior criminal record. In fact, this was his first arrest. These facts were plainly supportive of his suitability for PTI in reviewing the factors in N.J.S.A. 2C:43-12e (8) and (9), which ask for an assessment of the extent to which defendant's "crime constitutes part of a continuing pattern of anti-social behavior" and defendant's "record of criminal and penal violations and the extent to which he may present a substantial danger to others," respectively. Yet, in addressing these factors, the prosecutor did not merely give little weight to these facts; the prosecutor refused to acknowledge defendant's status as a first offender:

[T]his is defendant's first arrest. However, to characterize this as an isolated incident is not accurate. If defendant is cannabis addicted, he has been violating the law for a substantial period of time by his use of marijuana. In addition, defendant's intended distribution would be in no way a one-shot deal with that amount of marijuana.

The prosecutor has inferred that defendant is guilty of prior offenses and assumed that he would commit additional offenses in the future, based solely on his status as an addict. This was improper.

The Supreme Court has explicitly instructed that such an inference of guilt may not be drawn, stating "Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment contained in an applicant's record." Brooks, supra, 175 N.J. at 229. A prosecutor's ability to rely on conduct that did not result in a criminal conviction is severely limited:

Those aspects of a defendant's history, if considered at all, may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense. Moreover, a prosecutor's or program director's written rejection of a given application must reflect only a proper consideration of such information.

 

[(Ibid.)]

Here, there were not even dismissed charges to support an inference of guilt; the inference was based merely on defendant's status as cannabis-dependent. It is not a crime to be an addict. See Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1420-21, 8 L. Ed. 2d 758, 763 (1962), reh. den. 371 U.S. 905, 83 S. Ct. 202, 9 L. Ed. 2d 166 (1962); State v. Margo, 40 N.J. 188, 190 (N.J. 1963) (New Jersey's criminal statute "does not punish for an unsatisfied craving for drugs."); State v. Housman, 131 N.J. Super. 478, 480 (App. Div. 1974); Winbush v. Sills, 88 N.J. Super. 392, 394 (App. Div. 1965) (noting that New Jersey has "no statute which makes addiction a penal offense.") If the prosecutor's reasoning had any merit, it would justify barring each and every PTI applicant who admitted to a substance abuse problem, a result that would clearly subvert the goals of PTI.2

Finally, the prosecutor's heavy reliance upon the nature of the offense exceeded what was appropriate under the law. The nature of the offense may, in appropriate circumstances, serve as the sole basis for rejecting an applicant from PTI. Caliguiri, supra, 158 N.J. at 36; Leonardis II, supra, 73 N.J. at 382. The PTI Guidelines provide that a presumption against acceptance applies if the applicant's crime is

(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime. . . .

 

[Pressler, supra, Guidelines 3(i).]

In addition, "[a] defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs . . . should ordinarily not be considered for enrollment in a PTI program. . . ." Ibid.

Although it is appropriate to reject a PTI application when the nature of the offense is presumptively disqualifying, Caliguiri, supra, 158 N.J. at 36, that presumption does not end the inquiry. The defendant may still be admitted if he shows "compelling reasons" to be admitted to PTI. Ibid.; Pressler, supra, Guidelines 3(i); Nwobu, supra, 139 N.J. at 252-53. In Caliguiri, the prosecutor treated a charge of possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, as a presumptively disqualifying offense because, although a third-degree offense, the offense carried a mandatory term of imprisonment. The Supreme Court remanded the application to the prosecutor for reconsideration and required the offender to show compelling reasons for his admission in light of the offense.

In this case, defendant was not charged with any offense that was presumptively disqualifying. Under the facts here, a presumption would only have arisen if the amount in defendant's possession was sufficient to constitute a first- or second-degree offense. Therefore, defendant would have needed at least five pounds of marijuana, more than double the amount of marijuana in his possession, for his offense to be presumptively disqualifying. See N.J.S.A. 2C:35-5b(10)(b). By placing such weight upon the nature of the offense, the prosecutor essentially treated it as presumptively disqualifying. This result is at odds with the Legislature's role in defining offenses as well as its intent that drug offenders should not be precluded from PTI. See Caliguiri, supra, 158 N.J. at 39.

We therefore conclude that the prosecutor's refusal to give appropriate weight to defendant's status as a first offender and treatment of his offense as disqualifying clearly and convincingly represented a patent and gross abuse of discretion that subverted specific goals of the PTI program. See R. 3:28-1, Guidelines 1(a), (2), 3(i). Accordingly, we affirm the decision to admit defendant over the prosecutor's objection.

A

ffirmed.

1 The Division of Addiction Services (DAS), a division of the Department of Human Services, defines Level 1 Outpatient Substance Abuse Treatment as treatment provided in a licensed Outpatient facility which provides regularly scheduled individual, group and/or licensed family counseling for less than nine (9) hours per week. Psychoeducation includes didactic sessions and family education and information sessions as clinically indicated.

2 Not every brush with the law will support a rejection of a PTI application. See, e.g., Negran, supra, 178 N.J. at 83 ("[B]ecause motor vehicle violations are not "crimes," but rather only petty offenses, the courts below were correct in concluding that defendant's past driving infractions do not support his disqualification from PTI admission pursuant to N.J.S.A. 2C:43- 12e(9)."); Brooks, supra, 175 N.J. at 229-230 ("[S]ome juvenile adjudications may be so minor or distant in time that they provide no reasonable basis on which to reject an otherwise meritorious PTI application.")