STATEOF NEW JERSEY v. KURT A. KNOWLES, JR

NOT FOR PUBLICATION WITHOUT THE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-5261-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

KURT A. KNOWLES, JR.,

     Defendant-Appellant.
_____________________________

              Submitted December 20, 2017 – Decided February 23, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              14-09-1069.

              Jack Venturi, attorney for appellant.

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (David M. Liston,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Kurt Knowles appeals from the March 30, 2015 and

August 4, 2016 orders confirming the denial of his application for

entry into the pre-trial intervention (PTI) program.                      He also
appeals the March 30, 2016 order denying his suppression motion.

We   conclude      that     defendant      has    not   established      that    the

prosecutor's decision to deny PTI was a patent and gross abuse of

his discretionary authority.              In addition, we are satisfied that

the denial of the motion to suppress was supported by the credible

evidence in the record.           We affirm.

     Defendant was stopped at a routine DWI checkpoint.                    When he

rolled down his window, police officers detected the odor of

marijuana coming from his vehicle.                 When questioned about the

odor,    defendant       denied   there    was   any    marijuana   in    his   car,

suggesting that the smell might have come from a dog that was in

the car earlier or from a marijuana vaporizer in the center console

of the vehicle.      Defendant consented to a search of the car, and

three pounds of marijuana was found in a backpack in the vehicle's

trunk.

     Defendant was charged in an indictment with fourth-degree

possession    of     a    controlled       dangerous     substance,      marijuana,


N.J.S.A. 2C:35-10(a)(3); third-degree possession with intent to

distribute      marijuana,        N.J.S.A.       2C:35-5(a)(1);       third-degree

possession with intent to distribute marijuana on or near school

property, 
N.J.S.A. 2C:35-7; and second-degree possession with

intent to distribute marijuana within 500 feet of public property,


N.J.S.A. 2C:35-7.1.

                                           2                                A-5261-15T2
       Defendant's application for admission into the PTI program

was initially accepted by the program director.                       However, the

prosecutor subsequently rejected the application, advising, among

other reasons, that defendant denied knowledge of any marijuana

when    stopped   at   the   checkpoint;        after   the    discovery   of    the

cannabis, he said it must have belonged to a cousin who had

recently used his car. Due to the quantity of the drugs recovered,

and defendant's denial of the personal use of marijuana, the

prosecutor stated the possession must have been purely profit-

driven.     The   street     value   of       three   pounds   of   marijuana    was

conservatively $7500 with a higher worth if repackaged for sale

in smaller quantities.        Defendant appealed the decision.

       In considering defendant's appeal, Judge Dennis V. Nieves

issued a comprehensive written decision on March 30, 2015.                        He

analyzed each of the seventeen factors listed in 
N.J.S.A. 2C:43-

12(e), determining a number of the factors were favorable to

defendant and others weighed in favor of the State.                      The judge

also noted the "numerous character recommendation letters."                  Judge

Nieves concluded that he could not "say that [defendant] clearly

and    convincing[ly]    demonstrated         that    the   State's   decision    to

reject him from Pretrial Intervention constituted a patent and

gross abuse of discretion."



                                          3                                A-5261-15T2
       Defendant also filed a motion to suppress the evidence seized

from his trunk, arguing that his consent was involuntary and

coerced.    Following a hearing, Judge Alberto Rivas found that

defendant had voluntarily and knowingly agreed to a search of the

car.    He noted that defendant was an intelligent person and had

ample time to consider the consent form that advised him he had

the right to object to a search.      As Judge Rivas found defendant

was not credible in his testimony that he was coerced or threatened

to sign the consent form, the motion to suppress the seized

evidence was denied.

       Following an amendment to the PTI statute in 2016,1 defendant

appealed the denial of his entry into PTI a second time.       After

oral argument, Judge Rivas denied the appeal, stating that after

a complete review of the briefs and Judge Nieves's decision, he

was

            satisfied that the State has presented
            sufficient facts to sustain its decision to
            reject [d]efendant's PTI application. . . .
            [T]he Court finds that the State did not make
            a clear error in judgment, such that remand
            is required; nor did the State's decision to
            preclude [defendant] from admission into []
            PTI clearly subvert the goals underlying the


1 N.J.S.A. 2C:34-12 was amended in 2015.     As amended, the
eligibility requirements were expanded to allow defendants who
plead guilty to certain violent crimes to be admitted to the
program. 
N.J.S.A. 2C:12-(g)(3). Defendant was not charged with a
violent crime, and we have not been apprised of the reasons for
permitting a second appeal of the PTI denial.

                                  4                          A-5261-15T2
            program. Additionally, this Court finds that
            [d]efendant has not established by clear and
            convincing evidence that the State's decision
            to reject his PTI application was either a
            patent and gross abuse of discretion or
            arbitrary and irrational nor has [d]efendant
            presented compelling reasons for [his] entry
            into PTI.

      Defendant      subsequently     entered   a   guilty   plea   and      was

sentenced.    On appeal, he raises the following issues:

            POINT I: THE STATE'S REJECTION OF MR. KNOWLES
            FROM PTI, AGAINST THE RECOMMENDATION OF THE
            PTI DIRECTOR, SHOULD BE REVERSED, BECAUSE IT
            WAS A PATENT AND GROSS ABUSE OF DISCRETION;
            THE STATE FAILED TO CONSIDER POSITIVE FACTORS
            IN FAVOR OF MR. KNOWLES' PTI ENTRANCE; AND THE
            STATE'S DECISION IS A CLEAR ERROR IN
            [JUDGMENT] WHICH SUBVERTS THE GOALS OF PTI.

            POINT II:   IT WAS ERROR FOR JUDGE RIVAS TO
            DENY MR. KNOWLES'[] MOTION TO SUPPRESS BECAUSE
            HIS CONSENT WAS COERCED, AND NOT VOLUNTARILY
            MADE.

      Our scope of review of a prosecutor's decision to deny

admission to PTI is "severely limited."         State v. Negran, 
178 N.J.
 73,   82   (2003).      We   afford   the   prosecutor's     decision     great

deference.    See State v. Wallace, 
146 N.J. 576, 582, 589 (1996).

A trial judge can only overturn a prosecutor's decision to deny

PTI upon finding a patent and gross abuse of discretion.                     See

State v. Kraft, 
265 N.J. Super. 106, 112-13 (App. Div. 1993).

      Our review of a PTI application exists "to check only the

most egregious examples of injustice and unfairness."               State v.


                                       5                                A-5261-15T2
Nwobu, 
139 N.J. 236, 246 (1995) (quoting Kraft, 
265 N.J. Super.

at 111).   In short, it is expected that a prosecutor's decision

to reject a PTI applicant "will rarely be overturned."              Wallace,


146 N.J. at 585 (quoting State v. Leonardis, 
73 N.J. 360, 380 n.10

(1977)).   Absent evidence to the contrary, a reviewing court must

assume that "the prosecutor's office has considered all relevant

factors in reaching the PTI decision."            Nwobu, 
139 N.J. at 249

(citing State v. Dalglish, 
86 N.J. 503, 509 (1981)).

      Despite defendant's contentions, we are satisfied that both

trial judges conducted the proper review of the prosecutor's

decision to deny defendant entrance into the PTI program.                  Each

noted that the prosecutor had considered the required factors

under 
N.J.S.A. 2C:43-12(e).          It is not the judge's function to

"second guess" the State's decision.             Here, the prosecutorial

decision   has   not   "gone    so   wide   of   the   mark   sought    to    be

accomplished by PTI that fundamental fairness and justice require

judicial intervention."        Wallace, 
146 N.J. at 583 (quoting State

v. Ridgeway, 
208 N.J. Super. 118, 130 (Law Div. 1985)).                Rather,

the trial judges applied the appropriate deferential standard of

review to reach a sound decision. Defendant has not met his burden

of   proving   the   prosecutor's    decision    was   a   patent   abuse     of

discretion.



                                      6                                A-5261-15T2
    Defendant's   argument   pertaining    to   the   denial   of   the

suppression motion lacks sufficient merit to warrant discussion

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

    Affirmed.




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