STATE OF NEW JERSEY v. SEAN K. JUSTICE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5244-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SEAN K. JUSTICE,

        Defendant-Appellant.

_______________________________________

              Submitted August 8, 2017 – Decided December 19, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Salem County, Indictment No.
              15-12-0602.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel S. Rockoff, Assistant
              Deputy Public Defender, of counsel and on
              the briefs).

              John T. Lenahan, Salem County Prosecutor,
              attorney for respondent (Derrick Diaz, Salem
              County Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
    Defendant Sean K. Justice appeals from his conviction for

third-degree distribution of heroin, 
N.J.S.A. 2C:35-5(a)(1).

Specifically, he challenges the denial of his motion to admit

him into the pretrial intervention program (PTI), 
N.J.S.A.

2C:43-12 to -22.   For the reasons that follow, we reverse the

order denying defendant's motion and remand for reconsideration

of his application by the assistant prosecutor (prosecutor).

                                I

    We briefly recite the salient facts.   Defendant was

indicted for third-degree possession with intent to distribute

heroin, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(3), as

well as for third-degree possession of heroin, 
N.J.S.A. 2C:35-

10(a)(1).   As this was his first offense, defendant sought

admission into PTI.   The PTI Program Director recommended

defendant's admission but the prosecutor rejected his

application.

    In a letter setting forth his reasons for denying defendant

entry into PTI, the prosecutor did address the nature of the

offense, which we recount.   A confidential informant advised the

police that defendant and others planned to participate in a

narcotics transaction at a particular location.   The letter did

not specify the circumstances under which the police initiated

contact with defendant, but the letter stated defendant told the
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police he was on his on his way to meet a friend at a nearby

motel.   The police conducted a pat-down search of defendant and

discovered two box cutters and forty-eight wax folds of heroin

in his pocket.

    The balance of prosecutor's rejection letter merely stated:

            Based on the State's reading of R. 3:28 and
            
N.J.S.A. 2C:43-12, the State feels that
            [defendant] is not a suitable candidate for
            PTI. Additionally, the State has reviewed
            the following factors, R. 3:28 (3)(i) et.
            seq. as well as [
N.J.S.A.] 2C:43-12(e)(1),
            (2),(4),(7),(14), and (17, and found that
            your client is not an appropriate candidate.

            The Prosecutor has weighed the defendant's
            amenability to correction and responsiveness
            to rehabilitation, against the nature of the
            offense and the need for deterrence, and
            finds that the defendant would be ineligible
            to participate in PTI due to the nature of
            the offense, as well as the need of the
            public to prosecute these types of offenses.

    Defendant filed a motion seeking to be admitted into PTI,

asserting the prosecutor abused his discretion when he denied

defendant's application.    Specifically, defendant argued the

prosecutor either failed to or did not properly consider all of

the relevant factors before he rejected defendant's application.

In addition, defendant claimed the Prosecutor's Office admitted

another person into PTI who had been charged with the same

offenses.    Finally, in support of his application, defendant


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attached a letter from a co-worker, his mother, and a nurse.

One of the letters referenced defendant's addiction to heroin.

    The court denied defendant's motion.   The court found the

prosecutor "appears to have considered and weighed all relevant

factors in this case."   The court also determined the factual

differences between defendant's case and the case of the person

charged with the same offenses but admitted into PTI were too

attenuated to merit any meaningful comparison.

    Finally, the court found there existed a rebuttable

presumption defendant was ineligible for admission into PTI

under Guideline 3(i) of the PTI Guidelines.   Guidelines for

Operation of Pretrial Intervention in New Jersey, Pressler &

Verniero, Current N.J. Court Rules, Guideline 3(i) following R.

3:28 at 1235 (2017) (Guideline 3(i)).   Guideline 3(i) provides

in pertinent part:

         A defendant charged with a first or second
         degree offense or sale or dispensing of
         Schedule I or II narcotic drugs as defined
         in L. 1970, c. 226 (
N.J.S.A. 24:21-2 et
         seq.) by persons not drug dependent, should
         ordinarily not be considered for enrollment
         in a PTI program except . . . . However, in
         such cases, the applicant shall have the
         opportunity to present to the criminal
         division manager, and through the criminal
         division manager to the prosecutor, any
         facts or materials demonstrating the
         applicant's amenability to the
         rehabilitative process, showing compelling
         reasons justifying the applicant's admission
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         and establishing that a decision against
         enrollment would be arbitrary and
         unreasonable.

         [Guideline 3(i).]

    The court determined Guideline 3(i) made defendant

ineligible for PTI because "there is a rebuttable presumption

against admission into PTI for individuals charged with

possession of CDS, and possession with intent.   It does not

appear that facts are present . . . to rebut that presumption."

    Following the court's decision, defendant pled guilty to

third-degree distribution of heroin, 
N.J.S.A. 2C:35-3(a)(1).

The factual basis for his plea was he intended to share the

heroin in his possession with friends.    He was sentenced to two

years of probation, and ordered to submit to a substance abuse

evaluation and adhere to any recommended treatment.

                                II

    On appeal, defendant asserts the following arguments for

our consideration:

         POINT I – THE TRIAL COURT ERRED BY DECLINING
         TO ADMIT MR. JUSTICE INTO PTI AFTER THE
         PROSECUTOR OVERRULED THE PTI DIRECTOR. THIS
         COURT SHOULD EITHER (1) ADMIT MR. JUSTICE
         INTO PTI, AS THE PTI DIRECTOR RECOMMENDED,
         OR (2) REMAND FOR RECONSIDERATION.

              A.     General Principles

              B.   The Court Erred By Declining To
              Admit Mr. Justice Into PTI.
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                                                          A-5244-15T1
                C.   At The Very Least, This Court
                Should Remand For a Fresh Look.

    Specifically, defendant reprises the two arguments he

asserted before the trial court and, in addition, challenges the

court's determination that the terms of Guideline 3(i) created a

rebuttable presumption he was not eligible for PTI.     As for the

latter argument, defendant does not dispute heroin is a Schedule

I narcotic drug and that he was charged with selling or

dispensing this drug.   However, he contends he was addicted to

heroin at the time he was charged and that, as a drug dependent

person, the presumption in Guideline 3(i) he is ineligible for

PTI is inapplicable.

     Defendant also asserted various arguments that were not

raised before the trial court; we decline to review any argument

defendant failed to bring to the trial court's attention.

"Generally, an appellate court will not consider issues, even

constitutional ones, which were not raised below."     State v.

Galicia, 
210 N.J. 364, 383 (2012) (citing Deerfield Estates,

Inc. v. E. Brunswick, 
60 N.J. 115, 120 (1972)).

    A prosecutor's decision to accept or reject a defendant's

PTI application is entitled to great deference.      However, each

PTI applicant is "entitled to full and fair consideration of his

application."   
N.J.S.A. 2C:43-12(f).   The prosecutor must "make
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an individualized assessment of the defendant" and consider

whether the defendant is amenable to rehabilitation.   State v.

Roseman, 
221 N.J. 611, 621-22 (2015) (quoting State v. Watkins,


193 N.J. 507, 520 (2008)).   The prosecutor is also specifically

required to consider the factors in 
N.J.S.A. 2C:43-12(e).
1 In

 1
  These factors are: (1) the nature of the offense; (2) the
facts of the case; (3) the motivation and age of the
defendant;(4) the desire of the complainant or victim to forego
prosecution; (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; (7)
the needs and interests of the victim and society; (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; (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; (11) consideration of whether or
not prosecution would exacerbate the social problem that led to
the applicant's criminal act; (12) the history of the use of
physical violence toward others; (13) any involvement of the
applicant with 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; (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; and (17)
whether or not the harm done to society by abandoning criminal
prosecution would outweigh the benefits to society from
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                                                         A-5244-15T1
addition, evidence a defendant was drug dependent is a factor to

consider when assessing a defendant's application for PTI.     See


N.J.S.A. 2C:43-12(a)(1).

    If a prosecutor rejects an application, 
N.J.S.A. 2C:43-

12(f) requires the prosecutor to "precisely state his findings

and conclusion which shall include the facts upon which the

application is based and the reasons offered for the denial."

Ibid.   In addition, "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.'"   State v. Nwobu, 
139 N.J. 236, 249

(1995) (quoting State v. Maddocks, 
80 N.J. 98, 109 (1979)).

    Here, the prosecutor did note the circumstances of the

offenses, although it is not clear the forty-eight wax folds

found in defendant's possession was for distribution.   But it is

plainly evident from the balance of the prosecutor's rejection

letter he failed to explicate the reasons for his opinion

defendant was not qualified for PTI.   Other than the first

factor, the prosecutor did not specifically address the factors

in 
N.J.S.A. 2C:43-12(e) or the various considerations required


channeling an offender into a supervisory treatment program.

N.J.S.A. 2C:43-12(e).


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                                                         A-5244-15T1
by the PTI Guidelines.    Further, by clear implication, he did

not even review factors three, five, six, eight, nine, ten,

eleven, twelve, thirteen, fifteen, sixteen, and seventeen of

N.J.S.A. 2C: 43-12(e).

        "A prosecutor's decision to deny a defendant's PTI

application is a 'patent and gross abuse of discretion' if the

prosecutor's decision 'failed to consider all relevant factors

. . . . '"    Roseman, 
221 N.J. at 627 (citing Nwobu, 
139 N.J. at
 247).    "Ordinarily, the appropriate remedy for an inadequate

statement of reasons by the prosecutor [is to] remand for

further consideration . . . of a defendant's PTI application,

and [give the prosecutor] the opportunity to provide an adequate

factual basis for [his] findings."    Id. at 629.

    Here, because the prosecutor failed to consider all the

relevant factors in defendant's application or to make an

individualized assessment of him, we are compelled to reverse

the order denying defendant admission into PTI and remand this

matter back to the prosecutor so that he can properly review

defendant's application and explain the bases for any opinion he

reaches.

                                 B

    Defendant next contends the trial court erred when it found

defendant was presumptively ineligible for PTI because he was
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charged with, as stated by the trial court, "possession of CDS,

and possession with intent."

    Guideline 3(i) states in pertinent part:

         A defendant charged with a first or second
         degree offense or sale or dispensing of
         Schedule I or II narcotic drugs as defined
         in L. 1970, c. 226 (
N.J.S.A. 24:21-2 et
         seq.) by persons not drug dependent, should
         ordinarily not be considered for enrollment
         in a PTI program except . . . .

         [Emphasis supplied.]

Defendant's sole argument is he was drug dependent and, thus,

the Guideline 3(i) presumption against admission into PTI does

not apply to him.

    We agree there is some indication in the record defendant

was drug dependent.   If defendant was drug dependent at the time

of the commission of the charged offenses, the presumption of

ineligibility in Guideline 3(i) would not apply.

    We are guided by the remedy utilized in State v. Coursey,


445 N.J. Super. 506, 512 (App. Div. 2016), when confronted with

analogous circumstances.   Accordingly, not only do we reverse

the order denying his PTI appeal and remand for reconsideration

of his application by the prosecutor, but also direct that as

part of the prosecutor's reconsideration of defendant's PTI

application, defendant shall be permitted to submit any evidence


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                                                         A-5244-15T1
he was drug dependent at the time he committed the subject

offenses, see ibid.

    We have considered defendant's remaining argument and

conclude it is without sufficient merit to warrant discussion in

a written opinion.    R. 2:11-3(e)(2).

    Reversed and remanded.    We do not retain jurisdiction.




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