STATE OF NEW JERSEY v. MARK T. EAGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK T. EAGER,

Defendant-Appellant.

__________________________________________

September 21, 2015

Before Judges St. John and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-09-0598.

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).

Georgina Giordano Pallitto, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ms. Pallitto, on the brief).

PER CURIAM

On September 20, 2012, defendant pleaded guilty to one count of fourth-degree possession of marijuana pursuant to a negotiated plea agreement. As part of the agreement, defendant was permitted to submit an application to the Hudson County Pre-Trial Intervention Program (PTI). Defendant's admission to PTI was recommended by a probation officer as well as by the county Acting Director of PTI. However, the prosecutor withheld consent to PTI for the following reasons

1. The nature of the offense is distribution of marijuana.

2. The defendant's juvenile history indicates a problem with controlled dangerous substances and is therefore a part of continuing anti-social behavior.

3. The defendant has participated in juvenile drug court and his continuing involvement with controlled dangerous substances can be more effectively dealt with while on adult probation and/or adult drug court.

The juvenile history on which the prosecutor relied consisted of four arrests, two of which were drug related. Of the two drug-related arrests, one resulted in all charges being dismissed, and the second resulted in a referral to a diversionary juvenile drug court.

On February 15, 2013, defendant appealed the prosecutor's rejection of his PTI application before the trial judge. The judge affirmed the rejection, noting the prosecutor's reliance on defendant's juvenile history, and observing that a defendant's "juvenile record is allowed to be considered." This appeal followed.

On appeal, defendant presents the following issue for our consideration

POINT I

THE PROSECUTOR'S REJECTION OF DEFENDANT'S PTI APPLICATION DEMONSTRATED A PATENT AND GROSS ABUSE OF DISCRETION, AND MUST BE REVERSED.

A. The Rejection Was Not Premised On a Consideration of All Relevant Factors, and In Addition, Was Based on a Consideration of Irrelevant or Inappropriate Factors.

B. The Rejection Amounted to a Clear Error in Judgment and Clearly Subverted the Goals Underlying the PTI Program.

For the following reasons, we conclude that defendant's rejection was based on inappropriate factors and remand for reconsideration of defendant's application.

In the time between defendant's application for PTI, and this decision, the Supreme Court held that it is improper to rely upon previously dismissed charges alone as evidence in support of a "continuing pattern of antisocial behavior." State v. K.S., 220 N.J. 190, 201-02 (2015); N.J.S.A. 2C:43-12(e)(8). In that case, the Court determined that a prosecutor could no longer consider arrests resulting in diversion or dismissal to bar a defendant's admission into PTI. K.S., supra, 220 N.J. at 202. While acknowledging a prosecutor's "broad discretion to determine if a defendant should be diverted," the Court nonetheless concluded that prior dismissed or diverted charges may not be included in the evaluation of a PTI application. Id. at 199-200, 202.

K.S. reiterated that, "[w]hen a reviewing court determines that the 'prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse of discretion,' the reviewing court may remand to the prosecutor for further consideration." Ibid. at 200 (quoting State v. Dalglish, 86 N.J. 503, 509 (1981)). Accordingly, we vacate the trial court's order rejecting defendant from PTI and remand the matter to the prosecutor for further consideration in light of K.S.

Remanded. We do not retain jurisdiction.