STATEOF NEW JERSEY v. CARTER ROBERTS

NOT FOR PUBLICATION WITHOUT THE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-2648-16T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

CARTER ROBERTS,

     Defendant-Respondent.
_______________________________

              Submitted January 8, 2018 - Decided February 21, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              No. 16-06-1003.

              Andrew C. Carey, Middlesex County
              Prosecutor, attorney for appellant (Patrick
              F. Galdieri, II, Assistant Prosecutor, of
              counsel and on the brief).

              Wronko Loewen Benucci, attorneys for
              respondent (James R. Wronko, on the brief).

PER CURIAM

        The State of New Jersey appeals from a February 24, 2017

order admitting defendant Carter Roberts into the Pre-Trial

Intervention Program (PTI) over the prosecutor's objection.                    The

State contends the circumstances do not clearly and convincingly
establish its refusal to permit defendant's diversion to PTI was

a patent and gross abuse of the prosecutor's discretion.    Having

reviewed the record, we agree, and conclude the trial judge

substituted his judgment for the prosecutor's on several points,

requiring reversal of the order admitting defendant into PTI.

We also find, however, the prosecutor failed to consider whether

defendant's crimes were related to a condition or situation

conducive to change through participation in supervisory

treatment.   
N.J.S.A. 2C:43-12(e)(6).   Because that factor is

critical to judging a defendant's amenability to correction and

responsiveness to rehabilitation, 
N.J.S.A. 2C:43-12(b)(1), we

deem a remand to the prosecutor appropriate.

    Following a tip from a confidential informant, an

undercover detective with the Middlesex County Prosecutor's

Office Narcotics Task Force made four purchases of marijuana

from defendant during February, March and April 2016.    All four

purchases were made in defendant's apartment in New Brunswick,

where the detective observed a computer displaying four images

of the streets outside the building.    Executing a search warrant

in April, officers recovered the food saver machine defendant

used to seal the detective's purchases, a safe box and plastic

bags containing marijuana residue and $5135 in cash, $4440 of

which consisted of $20 bills.

                                2                          A-2648-16T3
    Defendant was indicted on four counts of fourth-degree

distribution of marijuana, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A.

2C:35-5(b)(12); one count of third-degree distribution of

marijuana, 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A. 2C:35-5(b)(11);

and one count of third-degree maintaining a fortified structure

for drug distribution, 
N.J.S.A. 2C:35-4.1(c); and charged in a

complaint-summons with the disorderly persons offense of

possession of drug paraphernalia, 
N.J.S.A. 2C:36-2.   Defendant

applied for PTI and was interviewed by a probation officer in

June 2016.

    Defendant reported he was twenty-four years old, having

just graduated from Rutgers after six years with a degree in

economics and minors in art history and psychology.   He

acknowledged having smoked marijuana daily for the past five

years and that he drinks rum on the weekends (three glasses).

He stated he was in good physical and mental health and not been

prescribed any medications.   Defendant reported taking a job

with Bankers Life in Tinton Falls upon his graduation but

resigned after four weeks because "he did not like how the

company worked."   He claimed to be actively seeking other

employment.   He also said he has a real estate license.

    Defendant reported he was financially supported by his

parents and had been employed by his father's construction

                                3                            A-2648-16T3
company for the last three months at a $1000 a week.      Defendant

declined to comment about the crimes with which he was charged.

When asked why he should be considered for PTI, defendant said:

           I have no priors, I am trying to live a
           productive life and trying to look for work.
           I am concern[ed] if [I] find a potential job
           this issue will come up. I just want to get
           my life back on track, keep going in the
           direction I was going.

       The Criminal Division Manager recommended defendant's

admission into PTI, based on the probation officer's conclusion

that

           Given this is the defendant's first arrest
           as an adult,[1] his willingness to cooperate
           with supervision, his age, being he is
           gainfully employed, a college graduate,
           presumably he would be a suitable candidate
           for PTI supervision. Although, the
           defendant reported past marijuana use. It
           is a concern as he reported weekly alcohol
           use, possibly to the point of intoxication.
           Therefore, as a condition of PTI the
           defendant should submit to a substance abuse
           treatment, comply with all recommendations
           until medically discharged, submit to random
           urine screens, and maintain employment.


       Defendant's counsel submitted a letter to the prosecutor in

support of his admission to PTI, claiming "[a] criminal

conviction would essentially wipe out four years of college and


1
   Defendant's juvenile record consisted of one offense in 2005,
successfully diverted following three hours of community
service.

                                 4                           A-2648-16T3
prevent [defendant] from obtaining a job opportunity in his

field of economics."   Contrary to defendant's report to

probation, counsel claimed defendant had been diagnosed with a

serious mental condition for which he had been prescribed

medication, and that his "involvement with marijuana was an

attempt to self-medicate and ease the racing thoughts in his

mind as a result of his illness."

    Counsel also claimed, again contrary to defendant's report

to probation, that defendant only quit his job at Banker's Life

after he became concerned about the effect of the indictment on

his prospects for obtaining an insurance license.   Counsel

claimed defendant's real passion was "[a]rchitecture and

design," and "he would consider a degree in architecture in hope

of starting his own real estate management and development

firm."   Counsel claimed defendant managed the apartment building

he lived in based on "the prerequisite" of his real estate

license, "but that is also in jeopardy given his current

situation."

    The prosecutor declined defendant's application for PTI.

In a three-page letter referencing each of the seventeen

criteria of 
N.J.S.A. 2C:43-12(e), an assistant prosecutor

concluded those factors taken as a whole, and especially

subsections (e)(1), (2), (7), (8), (14) and (17), weighed

                                5                           A-2648-16T3
strongly against defendant's admission in the program.     The

assistant prosecutor concluded although "defendant has no prior

criminal record, his actions constituted a continuing pattern of

antisocial activity and the seriousness of the offense and the

public need for prosecution outweigh the positive factors that

have been presented."

    Defendant appealed and the Law Division judge ordered

defendant admitted to the program over the prosecutor's

objection.   In a written opinion, the judge found the State

combined factor one, "[t]he nature of the offense," and factor

two, "[t]he facts of the case," and "simply recited the factual

allegations" of the four controlled buys.   The judge concluded

the prosecutor having weighed these factors against defendant

with "nothing more . . . by way of a qualitative or substantive

evaluation" amounted to "a reflexive denial . . . simply based

upon the nature of the charges against him."   The judge opined

"[a]t best, these two factors are weighted neutral as they

factor into the Defendant's application, given the State's

failure to conduct the requisite individualized assessment."

    As to factor three, "[t]he motivation and age of

defendant," the judge noted the State recognized defendant's age

and that he sought admission to PTI based on his lack of

criminal record and efforts "to live a productive life" and

                                6                           A-2648-16T3
"look for work," and was concerned "his charges will affect any

potential job prospect" and that he wished to "get his life back

on track."   The judge found, however, that as with factors one

and two,

           the State counted this factor against the
           Defendant's admission in reflexive fashion
           despite the fact that their observations
           clearly speak to the Defendant's recognition
           of the rehabilitative opportunity presented
           to him by PTI, his repentance concerning his
           involvement in these crimes, and his
           motivation for successfully completing the
           program so as to salvage his future and
           remain the law abiding individual he had
           been for his entire life prior to his
           engagement in these offenses.

    The judge found factor three weighed in favor of

defendant's admission to PTI.   He reasoned

           [t]he Defendant is [a] twenty-four-year-old
           college graduate with a degree in Economics
           and a double minor in Psychology and Art
           History, who is looking to start his career
           in his chosen field. The Defendant has no
           prior indictable offenses. A conviction for
           any of the distribution charges would
           seriously impact his future and derail many
           of his future plans. Such is a high price
           to exact from this particular Defendant,
           given these personal qualifiers surrounding
           his candidacy for admission, when combined
           with the nature of this case and the
           purposes of diversion via admission into the
           PTI Program. Being given an opportunity to
           salvage his professional future through
           admission and successful completion of PTI
           is something the Defendant is aware of and,
           as a result of admission, a strong


                                7                         A-2648-16T3
         motivation to ensure his successful
         completion of this supervision program.

    "Of even more concern" to the Law Division judge was the

State's pursuit of the third-degree distribution charge, which

the judge acknowledged was "premised upon aggregation allowed in

certain instances by N.J.S.A. 2C:35-5(c)."   The judge found "the

State appears undecided about the approach to take in this case,

charging the Defendant with both four (4) instances of narcotics

distribution and an aggregation of the same in a separate and

distinct count of a higher degree crime."    The judge found

         [t]his aggregation of charges within the
         Indictment, when coupled with the additional
         four separate incidents charged
         individually, represents a double-counting
         of criminal conduct the effect of which is
         to portray the Defendant in a more nefarious
         light, skewing the true nature of this case
         against the Defendant so as to place him in
         a more villainous and nefarious light in
         order to influence the assessment of his
         application to his detriment. Should the
         defendant be convicted at trial of both the
         lesser graded distribution charges and the
         count of the indictment premised upon an
         aggregation of these charges, he would still
         be eligible for a presumptive probationary
         sentence given that these charges would all
         merge into the count of the indictment
         premised upon the aggregation.

    Although purportedly recognizing "that aggregation of

quantity under 
N.J.S.A. 2C:35-5(c) is appropriate where




                               8                           A-2648-16T3
narcotics distribution activity is akin to a scheme or course of

conduct," the judge opined

         the amounts transacted within the controlled
         buys in this case were not of significant
         amounts, as each involved a quantity barely
         enough to qualify as a disorderly person's
         possessory offense. As a result, there is a
         reasonable assessment to be made
         characterizing the Defendant's conduct more
         fairly as separate and disjointed instances
         of narcotics distribution, the sole catalyst
         for which was solicitation by the State,
         rather than some common purpose or scheme
         engaged in with the Defendant to create a
         consistency in relationship with the State.
         In the end, the [c]ourt is left to raise
         these concerns without solution nor finality
         of judgment given the cursory assessment
         afforded Factors (1), (2), and (3) by the
         State, contrary to the requisite
         individualized assessment expected by the
         standards governing consideration of
         applicants for PTI admission.

    The judge noted the State combined factor five, "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," and factor six, "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," and weighed them

                               9                            A-2648-16T3
against defendant "because '[t]here are no "personal problems"

or "character traits" which are unique to this defendant for

which services would only be available outside the criminal

justice system.'"   The judge noted the prosecutor further

determined because "'defendant has never been subject to

supervisory treatment there is no way to tell whether he would

be conducive to change if given the opportunity.'"

    The judge found the absence of prior supervisory treatment

"true of every applicant for PTI admission, making this

rationale specious and unsustainable as standing against the

Defendant's application."   He noted the State

         faile[d] to recognize . . . that if the
         Defendant had been in "supervisory
         treatment" prior to his application so as to
         be able to ameliorate the State's concerns
         regarding his amenability to PTI
         supervision, that supervision would have, in
         and of itself, disqualified the Defendant
         from admission into PTI given that PTI is
         not available to those who have already been
         subjected to "supervisory treatment."

The judge found while defendant's "lack of prior experience in

'supervisory treatment' . . . affects the State's ability to

assess [his] amenability to PTI supervision, these factors

cannot be weighted in favor of rejecting the Defendant's

application as they do not lead to a conclusion that the

Defendant would, as a result, be resistant to said supervision."


                               10                            A-2648-16T3
The judge concluded he could not "rely on the limited, cursory

review of these factors by the State to subscribe to [its]

arguments in rejecting the admission of an otherwise PTI-

eligible defendant from PTI."

     Reviewing factor seven, "[t]he needs and interests of the

victim and society," the judge found the prosecutor's conclusion

that "communities suffer as a result of narcotics trafficking

. . . . generally unassailable."     Nevertheless, the judge

concluded the prosecutor's assessment of the factor "deficien[t]

. . . in its failure to indicate how, . . . as it relates to

this particular Defendant, the needs and interests of society

are undermined by allowing the Defendant's admission into PTI

beyond [the prosecutor's] conclusory statements."

     With regard to factor eight, "[t]he extent to which the

applicant's crime constitutes part of a continuing pattern of

anti-social behavior," and factor nine, "[t]he applicant's record

of criminal and penal violations and the extent to which he may

present a substantial danger to others," the judge noted

          the State again considered them jointly to
          both acknowledge[e] that the Defendant has
          no prior criminal record, then inexplicably
          conclude that the four (4) controlled
          purchases in this case exhibit a ". . .
          pattern of antisocial behavior . . ." as
          evidenced by the Defendant having engaged in
          these transactions within a three (3) month
          period.

                                11                             A-2648-16T3
    The judge rejected the prosecutor's assessment of the four

controlled buys as constituting a "pattern of antisocial

behavior."    He instead concluded the

            case against the Defendant is squarely
            premised on a foundation of four (4)
            separate transactions involving marijuana
            between February 9, 2016 and April 14, 2016,
            solicited by the State in each instance, the
            quantities of which in each instance
            represented approximately half of what would
            be necessary to move the possession of said
            marijuana beyond a disorderly person's
            offense into the jurisdiction of the
            Superior Court as felonious activity. No
            analysis is made to explain how these are a
            more than a series of aberrant behaviors
            within a limited time frame, the catalyst
            for which was the State and its efforts to
            engage in narcotics interdiction.

    The judge also rejected the prosecutor's observation that

arrest had failed to deter defendant's use of marijuana, based

on defendant's own report that he smoked after having been

arrested.    Instead, the judge concluded defendant's "admitted

drug problem which arguably led to these events outweigh[s] any

assessment that his conduct rises to a level of criminality

warranting traditional prosecution outside of PTI admission."

    In assessing the prosecutor's consideration of factor

fourteen, whether "'the crime is of such a nature that the value

of supervisory treatment would be outweighed by the public need

for prosecution,'" and factor seventeen, whether "'the harm done


                                12                         A-2648-16T3
to society by abandoning criminal prosecution would outweigh the

benefits to society from channeling an offender into a

supervisory treatment program,'" the judge took umbrage at the

prosecutor's conclusion that

         [c]hanneling this particular offender into
         the PTI program would harm society by
         sending a message which would minimize and
         trivialize the severity of defendant's
         actions. Any benefit to the defendant from
         acceptance into the PTI program would be far
         outweighed by the harmful message sent to
         society that such offenses merit a
         diversionary program.

    The judge noted "[p]articipation in the PTI program is not

trivial, nor does it minimize the Defendant's actions."   The

judge found

         [t]he State fails to point to any tangible
         benefit to society by denying the Defendant
         admission into PTI, given his personal
         qualifications and educational background.
         There is little to nothing in either to
         suggest a risk of recidivism when the
         Defendant's motivation is coupled with the
         supervision and the rehabilitative services
         available within PTI. The State's rejection
         is premised on little, if anything,
         specifically addressing how they assessed
         these two factors against the Defendant,
         other than being part of their own reflexive
         approach towards weighting them against his
         admission.

The judge further found

         [d]enying this Defendant admission into PTI
         would simply create another felon bearing
         all of the attendant collateral consequences

                               13                         A-2648-16T3
         associated with a criminal conviction which
         would follow him for much, if not all of his
         life. There is no tangible benefit to
         society having this Defendant saddled with
         this type of conviction given the promise he
         shows through his educational achievement
         and the law abiding lifestyle he has led for
         the vast majority of his life. Furthermore,
         there is no significant harm to be protected
         from denying him admission into PTI. The
         reasoning employed by the State in weighing
         Factors (14) and (17) against the
         Defendant's admission are conclusory in
         nature and devoid of any appropriate
         substantiation, as the State's statement
         made in its analysis can apply to any
         criminal statute.

    The judge concluded the prosecutor's reliance on factors

one, two, three, five, seven, eight, fourteen and seventeen in

denying defendant admission to PTI was "misplaced."   He found it

"unclear as to whether or not the State considered the purposes

of PTI" in assessing defendant's application, but apparent "the

State failed to engage in the individualized assessment of the

factors identified in Guideline 3 of R. 3:28."   The judge

concluded defendant "is the exact type of defendant PTI was

envisioned for" and denying him "admission [was] a clear error

in judgment on the prosecutor's part."

    Having read the Law Division judge's written opinion, it is

abundantly clear that had the judge been the prosecutor,

defendant would have been admitted to PTI.   The cases, however,

are legion holding a reviewing court is not to evaluate the case

                              14                             A-2648-16T3
"as if it stood in the shoes of the prosecutor."   State v.

Wallace, 
146 N.J. 576, 589 (1996).   As the Supreme Court has

repeatedly reminded, "PTI is essentially an extension of the

charging decision, therefore the decision to grant or deny PTI

is a 'quintessentially prosecutorial function.'"   State v.

Roseman, 
221 N.J. 611, 624 (2015) (quoting Wallace, 
146 N.J. at
 582).   "[B]ecause it is the fundamental responsibility of the

prosecutor to decide whom to prosecute," State v. Kraft, 
265 N.J. Super. 106, 111 (App. Div. 1993), "the prosecutor has great

discretion in selecting whom to prosecute and whom to divert to

an alternative program, such as PTI."   Wallace, 
146 N.J. at 582.

    We are to afford the prosecutor's decision on diversion to

PTI an "enhanced" or "extra" level of deference, State v.

Baynes, 
148 N.J. 434, 443 (1997), in accord with the Court's

"expectation that 'a prosecutor's decision to reject a PTI

applicant will rarely be overturned,'" ibid. (quoting Wallace,


146 N.J. at 585) (internal quotation marks omitted).

Accordingly, the scope of judicial review "is severely limited"

and "serves to check only the 'most egregious examples of

injustice and unfairness.'"   State v. Negran, 
178 N.J. 73, 82

(2003) (quoting State v. Leonardis, 
73 N.J. 360, 384 (1977)).

"A defendant attempting to overcome a prosecutorial veto must

'clearly and convincingly establish that the prosecutor's

                               15                           A-2648-16T3
refusal to sanction admission into a PTI program was based on a

patent and gross abuse of his discretion' before a court can

suspend criminal proceedings under Rule 3:28 without

prosecutorial consent."    Negran, 
178 N.J. at 82 (quoting State

v. Nwobu, 
139 N.J. 236, 246 (1995)) (internal quotation marks

omitted).    The Court has counseled that

            [o]rdinarily, an abuse of discretion will be
            manifest if defendant can show that a
            prosecutorial veto (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. In order for
            such an abuse of discretion to rise to the
            level of "patent and gross," it must further
            be shown that the prosecutorial error
            complained of will clearly subvert the goals
            underlying Pretrial Intervention.

            [State v. Bender, 
80 N.J. 84, 93 (1979).]

    Applying those standards to this record makes clear the

judge was without authority to suspend criminal proceedings

against defendant and order him admitted to PTI over the

prosecutor's objection.    The judge's comments regarding the

prosecutor's decision to secure an indictment aggregating the

quantities of marijuana in the four controlled buys as permitted

by 
N.J.S.A. 2C:35-5(c) are particularly concerning.

    Accusing the prosecutor of "double-counting" and "skewing

the true nature of this case . . . so as to place [defendant] in


                                16                         A-2648-16T3
a more villainous and nefarious light in order to influence the

assessment of his application to his detriment," appears wholly

unwarranted from our perspective.   Further, the prospect of a

probationary sentence, which the judge deemed likely even were

defendant convicted of both the fourth-degree distribution

charges and the third-degree aggregation count, and which

apparently fueled the aspersions leveled against the prosecutor,

"does not retrospectively impugn the soundness of a previous

prosecutorial decision that criminal prosecution rather than

pretrial diversion is the appropriate disposition of the charges

against the defendant."   Wallace, 
146 N.J. at 588-589 (holding

"[t]o permit that line of attack would unfairly undermine an

otherwise well-founded decision to deny PTI" and "discourage

efforts by the State to enter into a negotiated plea agreement

that seeks to accommodate a defendant's condition, need for

treatment, amenability to supervision, and likelihood for

rehabilitation").

    As apparent from the affidavit in support of the search

warrant, defendant came to the attention of the narcotics task

force through a reliable confidential informant who claimed

defendant was selling drugs out of his apartment in New

Brunswick.   Utilizing the cell phone number for defendant

provided by the informant, an undercover officer made contact

                               17                            A-2648-16T3
with defendant, visited his apartment, where she observed a

video surveillance system, and reported purchasing drugs from

him on four different occasions over the course of three months.

       Based on the small quantities purchased, which the judge

characterized as "barely enough to qualify as a disorderly

person's possessory offense," the judge rejected the

prosecutor's view that defendant was regularly engaged in

selling marijuana.    The facts, in the judge's view, permitted "a

reasonable assessment . . . characterizing the Defendant's

conduct more fairly as separate and disjointed instances of

narcotics distribution, the sole catalyst for which was

solicitation by the State, rather than some common purpose or

scheme."    That, of course, ignores that defendant came to the

State's attention on a report that he was selling drugs from his

apartment.    More important, that the judge views the facts

differently from the prosecutor does not suggest a "clear error

of judgment" on the prosecutor's part.    See Wallace, 
146 N.J. at
 589.

       We also reject the judge's view that four sales over three

months cannot support a finding of a "continuing pattern of

anti-social behavior."    Although we agree that factor is

"ordinarily . . . predicated on more long-standing criminal

involvement," the Court in Nwobu found a series of thefts by a

                                18                           A-2648-16T3
first-time offender over a six-week period "suggest[ed] more

than a momentary loss of moral resolve."    Nwobu, 
139 N.J. at
 254.   More important for our purposes, however, is the Nwobu

Court's clear directive that "[t]he question is not whether we

agree or disagree with the prosecutor's decision, but whether

the prosecutor's decision could not have been reasonably made

upon weighing the relevant factors."    Ibid.

       We cannot say the prosecutor's decision to weigh against

defendant the nature of the offense, the facts of the case, the

needs of society, that the conduct constituted a continuing

pattern of anti-social behavior and that the harm done to

society by diversion would outweigh the benefits, constituted a

clear error of judgment on this record.    Despite defendant's

unwillingness to comment on the offenses, indicate any need or

desire for drug treatment and expressing only his lack of prior

record, his concern about the effect of a conviction on his

future job prospects and the desire to "just . . . get [his]

life back on track, keep going in the direction [he] was going,"

the judge found defendant recognized "the rehabilitative

opportunity presented to him by PTI, his repentance concerning

his involvement in these crimes, and his motivation for

successfully completing the program so as to salvage his

future."

                                19                          A-2648-16T3
       As Judge Pressler noted, a defendant need not "be Jean

Valjean in order to qualify" for PTI.     State v. Mickens, 
236 N.J. Super. 272, 279 (App. Div. 1989).     "He must, however,

acknowledge his error, be sincerely remorseful, be willing to

make amends for it outside the criminal justice system, and have

the capacity to do so."    Ibid.    The Law Division judge found

those qualities in defendant while the prosecutor did not.

We find the judge erred by interjecting himself into the process

of weighing applicable factors pertinent to the PTI application.

He predicated his decision on his own assessment of the factors,

rather than confining himself to whether the prosecutor

considered all relevant factors, considered inappropriate

factors or made a clear error in judgment.      Bender, 
80 N.J. at
 73.    We accordingly reverse the order admitting defendant into

PTI.

       Although we find no patent and gross abuse of the

prosecutor's discretion, the Law Division judge identified one

instance in which the prosecutor's decision could be

characterized as arbitrary.    In assessing factor six, "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 prosecutor wrote

"since the defendant has never been subject to supervisory

                                   20                        A-2648-16T3
treatment there is no way to tell whether he would be conducive

to change if given the opportunity."

    As the judge correctly noted, the absence of prior

supervisory treatment is "true of every applicant for PTI

admission."   It does not permit the prosecutor to sidestep an

assessment of whether the crime is related to a condition, here

possible drug addiction, "that would be conducive to change

through his participation in supervisory treatment."     Because

the likely value of supervisory treatment is critical to judging

a defendant's amenability to correction and responsiveness to

rehabilitation, 
N.J.S.A. 2C:43-12(b)(1), we deem a remand to the

prosecutor to reconsider defendant's application appropriate.

See State v. Dalglish, 
86 N.J. 503, 509-10 (1981).    Given the

passage of time, the review should be ab initio and defendant

may bring any pertinent information bearing on his PTI

application to the attention of the prosecutor.    See State v.

Coursey, 
445 N.J. Super. 506, 512-13 (App. Div. 2016).

    The order admitting defendant into PTI is reversed, the

prosecutor's decision rejecting defendant from PTI is vacated

and the matter is remanded to the prosecutor for reconsideration

in accordance with this opinion.    We do not retain jurisdiction.




                               21                           A-2648-16T3