New Jersey v. Johnson

Annotate this Case
Justia Opinion Summary

This appeal arose from defendant Davon Johnson’s unsuccessful application for pretrial intervention (PTI), filed in anticipation of his indictment for third-degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school zone. In May 2014, defendant was charged with motor vehicle and CDS offenses, including violation of N.J.S.A. 2C:35-7(a). He applied for PTI and included a statement of compelling reasons supporting his admission. The prosecutor rejected defendant’s application. The prosecutor relied on New Jersey v. Caliguiri, 158 N.J. 28 (1999), which permitted prosecutors to treat an N.J.S.A. 2C:35-7 offense as a second-degree offense, thereby triggering the presumption against admission into PTI. And, quoting PTI Guideline 3(i), the prosecutor found defendant presumptively ineligible for PTI because he was charged with the “sale or dispensing” of a Schedule I or II narcotic and was not drug dependent. Following the denial of his application, a grand jury indicted defendant. Defendant appealed the denial to the trial court, which refused to disturb the prosecutor’s determination. Defendant then entered a guilty plea to third-degree possession of heroin. He appealed to the Appellate Division, arguing the prosecutor incorrectly applied the two presumptions against PTI. The New Jersey Supreme Court granted review and found that the 2009 amendments to N.J.S.A. 2C:35-7’s sentencing structure reflected a more flexible sentencing policy that rendered Caliguiri’s reasoning no longer viable. Accordingly, the Supreme Court held the presumption against PTI for second-degree offenders could not be applied to N.J.S.A. 2C:35-7(a) offenders. The Court also found that the presumption against PTI for the “sale” of narcotics was not applicable here because defendant was charged with possession with intent to “distribute” and there was no allegation or evidence that he sold the narcotics. The matter was remanded so that the prosecutor could reassess defendant’s application without consideration of the presumptions.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                       State v. Davon M. Johnson (A-58-17) (080394)

Argued March 11, 2019 -- Decided May 30, 2019

TIMPONE, J., writing for the Court.

        This appeal arises from defendant Davon M. Johnson’s unsuccessful application for
pretrial intervention (PTI), filed in anticipation of his indictment for third-degree possession
of a controlled dangerous substance (CDS) within 1000 feet of a school zone,  N.J.S.A.
2C:35-7(a). Both the presumption against PTI for second-degree offenses and the
presumption against PTI for the sale of narcotics were cited in the denial of his application.
The Court considers whether those presumptions should have been applied in this case.

       In May 2014, defendant was charged with motor vehicle and CDS offenses, including
violation of  N.J.S.A. 2C:35-7(a). He applied for PTI and included a statement of compelling
reasons supporting his admission. The prosecutor rejected defendant’s application. She
relied on State v. Caliguiri,  158 N.J. 28, 43 (1999), which permitted prosecutors to treat an
 N.J.S.A. 2C:35-7 offense as a second-degree offense, thereby triggering the presumption
against admission into PTI. And, quoting PTI Guideline 3(i), the prosecutor found defendant
presumptively ineligible for PTI because he was charged with the “sale or dispensing” of a
Schedule I or II narcotic and was not drug dependent.

       Following the denial of his application, a grand jury indicted defendant. Defendant
appealed the denial to the trial court, which refused to disturb the prosecutor’s determination.
Defendant then entered a guilty plea to third-degree possession of heroin. He appealed to the
Appellate Division, arguing the prosecutor incorrectly applied the two presumptions against
PTI. When that appeal was unsuccessful, defendant petitioned for certification, which the
Court granted.  233 N.J. 23 (2018).

HELD: The 2009 amendments to N.J.S.A. 2C:35-7’s sentencing structure reflect a more
flexible sentencing policy that renders Caliguiri’s reasoning no longer viable. The
presumption against PTI for second-degree offenders cannot be applied to  N.J.S.A. 2C:35-
7(a) offenders. And the presumption against PTI for the “sale” of narcotics was not
applicable here because defendant was charged with possession with intent to “distribute” and
there is no allegation or evidence that he sold the narcotics. The decision to deny defendant’s
application must be reevaluated.



                                                1
1. PTI is a diversionary program through which certain offenders are able to avoid criminal
prosecution by receiving early rehabilitative services expected to deter future criminal
behavior. At the time defendant’s PTI application was denied, Guideline 3 to Rule 3:28
included a list of mandatory factors to be considered in addition to those enumerated in
 N.J.S.A. 2C:43-12(e). Of particular relevance here, Guideline 3(i) then provided that “[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.”
Guideline 3(i) to Rule 3:28 (2014). (pp. 9-11)

2. The penalty structure for violations of  N.J.S.A. 2C:35-7, which is part of the
Comprehensive Drug Reform Act of 1987 (CDRA), is similar to that for second-degree
offenses for which admission to PTI is presumptively unavailable. In Caliguiri, the Court
found the “especially stern punishments” for  N.J.S.A. 2C:35-7 offenders, “[i]n light of the
general tenor of the CDRA and the goals of the PTI Guidelines,” countenanced allowing
prosecutors to apply the presumption against PTI to second-degree offenders.  158 N.J. at 43.
But that decision was based on a sentencing structure that has since evolved. In 2009, the
Legislature altered  N.J.S.A. 2C:35-7 by enacting a new subsection (b), which authorizes
courts to “waive or reduce the minimum term of parole ineligibility required under subsection
a.,” or to “place the defendant on probation.” Caliguiri’s determination that the presumption
against PTI for first- and second-degree offenses should encompass third-degree school zone
offenses, although well-reasoned at the time, is no longer consistent with the Legislature’s
intent. Based on the changed statutory language and the Legislature’s clear intent in
amending  N.J.S.A. 2C:35-7, the presumption against PTI for first- and second-degree
offenders can no longer be applied to  N.J.S.A. 2C:35-7(a) offenders. Because the prosecutor
relied, in part, on that presumption, the Court remands to the prosecutor to reconsider
defendant’s application. The Court disturbs no other portion of Caliguiri. (pp. 12-15)

3. The presumption against PTI for the “sale or dispensing” of a Schedule I or II narcotic, as
it was set forth in Guideline 3(i), is also inapplicable.  N.J.S.A. 2C:35-7(a) uses the terms
“distribute” and “dispense” but does not use the term “sale.” Possession with intent to
distribute is not technically a sale, nor is it “dispensing.” Defendant was not charged with
selling or dispensing narcotics because there was no evidence that he sold or dispensed
narcotics. Imputing a presumption against PTI for a “sale” to defendant, who was charged
with “possession with intent to distribute,” was improper. Because the prosecutor considered
two inapplicable presumptions, the decision to deny defendant’s application must be
reevaluated. The Court remands to the prosecutor and, if need be, to the trial court for
appropriate action following the prosecutor’s review. (pp. 15-16)

      The judgment of the Appellate Division is reversed and the matter is remanded.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.



                                              2
       SUPREME COURT OF NEW JERSEY
             A-
58 September Term 2017
                       080394


                 State of New Jersey,

                Plaintiff-Respondent,

                          v.

                 Davon M. Johnson,

                Defendant-Appellant.

        On certification to the Superior Court,
                  Appellate Division.

       Argued                      Decided
    March 11, 2019               May 30, 2019


Peter T. Blum, Assistant Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Peter T. Blum, of counsel and on the
briefs).

Kayla Elizabeth Rowe, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Kayla Elizabeth Rowe, of counsel and
on the briefs).


JUSTICE TIMPONE delivered the opinion of the Court.




                          1
      This appeal arises from defendant Davon M. Johnson’s unsuccessful

application for pretrial intervention (PTI), filed in anticipation of his

indictment for third-degree possession of a controlled dangerous substance

(CDS) within 1000 feet of a school zone,  N.J.S.A. 2C:35-7(a). The significant

question before us is whether the presumption against PTI for second-degree

offenses or the presumption against PTI for the sale of narcotics should have

been applied in this case.

      In State v. Caliguiri, we recognized the presumption against PTI for

second-degree offenses could be applied to  N.J.S.A. 2C:35-7 offenders

because, at the time, a school-zone conviction required the imposition of a

period of parole ineligibility.  158 N.J. 28, 37-38, 42-43 (1999). We observed

that “[t]he penalty structure for this type of offense [was] similar to that for

second-degree offenses for which admission to PTI is presumptively

unavailable.” Id. at 43 (quoting State v. Baynes,  148 N.J. 434, 449 (1997)).

Since Caliguiri was decided, the Legislature amended  N.J.S.A. 2C:35-7,

modifying and relaxing the statute’s sentencing structure. See L. 2009, c. 192,

§ 1. While maintaining the statute’s mandatory-minimum sentencing

structure, the Legislature granted courts the latitude to waive or reduce the

period of parole ineligibility or impose a term of probation under certain

circumstances. Ibid.


                                         2
      We find that the 2009 amendments to N.J.S.A. 2C:35-7’s sentencing

structure reflect a more flexible sentencing policy that renders Caliguiri’s

reasoning no longer viable. Accordingly, we hold the presumption against PTI

for second-degree offenders cannot be applied to  N.J.S.A. 2C:35-7(a)

offenders.

      We also find that the presumption against PTI for the “sale” of narcotics

was not applicable here because defendant was charged with possession with

intent to “distribute” and there is no allegation or evidence that he sold the

narcotics.

      Despite the prosecutor’s dutiful consideration of defendant’s application

for PTI, including the factors set forth in  N.J.S.A. 2C:43-12(e), both

presumptions were cited in the denial of his application. We remand so that

the prosecutor can reassess defendant’s application without consideration of

the presumptions.

                                        I.

                                        A.

      We distill the following facts from the record in the PTI proceedings.

On May 18, 2014, defendant was driving through Newark when he was

stopped by a Newark police officer for running a red light. As defendant

reached into the glove compartment for his credentials, three bricks of heroin


                                        3
fell to the floor. Each brick contained 150 individual bags of heroin.

Defendant was charged with third-degree possession of heroin,  N.J.S.A.

2C:35-10(a)(1), third-degree possession of heroin with intent to distribute,

 N.J.S.A. 2C:35-5(b)(3), and third-degree possession of heroin with intent to

distribute within 1000 feet of a school zone,  N.J.S.A. 2C:35-7. He was also

charged with two motor vehicle violations for his failure to observe the red

light,  N.J.S.A. 39:4-81, and for the possession of a CDS in a motor vehicle,

 N.J.S.A. 39:4-49.1.

      On July 10, 2014, defendant applied for PTI and included a two-page

statement of compelling reasons supporting his admission in accord with

Guideline 2 to Rule 3:28 (2014). Since the Guidelines were eliminated in

2018, Rule 3:28-3(b)(1) now provides for the submission of a statement of

compelling reasons. As defendant’s letter explained, defendant, who was

twenty-one years old at the time of his arrest, had no prior criminal history,

graduated from high school, matriculated into Bloomfield College where he

studied accounting, worked on a cabin maintenance and cleaning team at

Newark Liberty International Airport, and spent time with his younger sisters,

nieces, and nephews. In the statement, defendant asserted PTI would be

sufficient to deter any future unlawful conduct, and an indictable conviction




                                        4
would cause a substantial hardship to him and his family by inhibiting his

chances of completing college and obtaining employment.

      After reviewing defendant’s application and statement, the Probation

Office recommended defendant’s application for PTI be denied. Highlighting

that defendant was found with 150 glassine envelopes of heroin and reported

no history of substance abuse, the Probation Office reasoned his application

should be denied “[b]ased on the facts of the case and the likelihood of the

present offense being a part of an organized criminal activity as well as a

pattern of anti-social activity.”

      On November 7, 2014, the prosecutor rejected defendant’s application

for PTI. She found five of the  N.J.S.A. 2C:43-12(e) factors to be aggravating

factors. In particular, the prosecutor found defendant presumptively ineligible

for PTI under  N.J.S.A. 2C:43-12(e)(1) based on the nature of the offense. She

relied on our decision in Caliguiri,  158 N.J. at 43, permitting prosecutors, for

PTI evaluation purposes, to treat an  N.J.S.A. 2C:35-7 offense as a second-

degree offense, thereby triggering the presumption against admission into PTI.

And, quoting Guideline 3(i), the prosecutor found defendant was also

presumptively ineligible for PTI because he was charged with the “sale or

dispensing” of a Schedule I or II narcotic and was not drug dependent.




                                        5
      The prosecutor found several mitigating factors present in defendant’s

case, including defendant’s age; his lack of criminal history; the absence of

violence in commission of the crime; the absence of evidence suggesting

defendant’s involvement with organized crime; and the absence of other

defendants. See  N.J.S.A. 2C:43-12(e)(3), (9), (10), (13), and (16). Weighing

the factors, the prosecutor determined that defendant had “not presented

sufficient compelling reasons justifying admission into PTI,” and that he had

failed to “overcome his heavy burden of rebutting the presumptions against his

admission.” Following the denial of his application, an Essex County Grand

Jury indicted defendant on January 9, 2015, on the charges contained in the

original compliant.

                                       B.

      On March 23, 2015, before trial, defendant filed an untimely appeal to

the Law Division, seeking review of the denial of his PTI application. The

trial court refused to disturb the prosecutor’s determination. In addition to

finding the appeal procedurally barred under the then-existing Rule 3:28(h),

which required an appeal of the denial of PTI to be filed within ten days (now

codified in Rule 3:28-6(a)), the court found defendant did not establish that the

prosecutor failed to conduct an individualized analysis of his PTI application.

The court also found the prosecutor correctly applied the presumption against


                                        6
PTI because the prosecutor charged defendant under  N.J.S.A. 2C:35-7

(possession of controlled dangerous substances near or on school property) .

The court reasoned defendant’s application was properly denied because he

failed to show compelling reasons demonstrating his amenability to

rehabilitation or something idiosyncratic in his background that would

overcome the presumption against admission.

      Three months later, defendant entered a guilty plea to third-degree

possession of heroin,  N.J.S.A. 2C:35-10(a)(1). The court sentenced defendant

to two years’ probation and 190 hours of community service.

                                      C.

      Defendant appealed to the Appellate Division, arguing the prosecutor

incorrectly applied the two presumptions against admission into PTI.

Defendant asserted that the presumption against PTI for  N.J.S.A. 2C:35-7

offenders was no longer viable in light of amendments made to that statute in

2009. He also disputed the prosecutor’s application of the presumption against

PTI for the “sale or dispensing” of narcotics because he was not engaged in or

charged with the sale of heroin.

      Despite finding defendant’s arguments procedurally barred because he

did not raise them below, the appellate panel commented on the merits of his

claim. Relying on the Appellate Division’s recent decision in State v.


                                       7
Coursey,  445 N.J. Super. 506, 511 (App. Div. 2016), which recognized

Caliguiri as providing guidance on how to interpret Guideline 3(i), the panel

determined that the presumption against PTI had not been eroded by the

amendments to  N.J.S.A. 2C:35-7. The panel dismissed defendant’s second

argument as meritless, reasoning that the presumption against PTI was applied

in Caliguiri, where the defendant was also charged with possession in a school

zone under similar circumstances.

      We granted Defendant’s petition for certification.  233 N.J. 23 (2018).

                                       II.

                                       A.

      Defendant reasserts that the 2009 amendments significantly relaxed

N.J.S.A. 2C:35-7’s sentencing structure and that the typical offender “should

be treated like an ordinary third-degree offender.” Defendant also resubmits

that the presumption against PTI for the “sale” of narcotics should not have

been applied because he was charged with possession with intent to distribute,

and the term “distribute” used in the statute is broader than the term “sale” that

was used in the Guidelines. Lastly, defendant contends the prosecutor abused

her discretion in denying his application.




                                        8
                                        B.

      The State disputes that the 2009 amendments overrode the presumption

against PTI articulated in Caliguiri. The State contends that the 2009

amendments in no way suggest that the Legislature no longer views possession

of heroin with intent to distribute it in a school zone as a serious offense,

highlighting that the Legislature maintained the presumption of incarceration.

      Next, the State asserts the facts of this case are clear and show defendant

intended to sell the heroin. The State insists that defendant should not be freed

from the presumption against PTI merely because he was arrested before he

could complete the sale.

      Finally, the State argues that it is in the prosecutor’s discretion whether

to recommend a defendant for PTI and that, in denying defendant’s application

in this case, the prosecutor carefully considered all relevant factors under

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

                                        III.

                                        A.

      “PTI is a 'diversionary program through which certain offenders are able

to avoid criminal prosecution by receiving early rehabilitative services

expected to deter future criminal behavior.’” State v. Roseman,  221 N.J. 611,

621 (2015) (quoting State v. Nwobu,  139 N.J. 236, 240 (1995)). Prosecutors


                                         9
are tasked with making individualized assessments of each defendant,

particularly his or her “amenability to correction” and likely “responsiveness

to rehabilitation.” State v. Watkins,  193 N.J. 507, 520 (2008) (quoting

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

      Until recently, “[t]he assessment of a defendant’s suitability for PTI

must be conducted under the Guidelines for PTI provided in Rule 3:28, along

with consideration of factors listed in N.J.S.A. 2C:43-12(e).” Roseman,  221 N.J. at 621. Following changes to Rule 3:28, however, the Guidelines were

eliminated. Now, many of their prescriptions -- with significant variations --

are contained in Rules 3:28-1 to -10.  N.J.S.A. 2C:43-12(e) sets forth a list of

seventeen nonexclusive factors that prosecutors must consider in connection

with a PTI application. At the time defendant’s PTI application was denied,

Guideline 3 to Rule 3:28 then included a list of eleven (later twelve)

mandatory factors to be considered “in addition to” those enumerated in the

statute. Of particular relevance here, Guideline 3(i) provided that “[a]

defendant charged with a first or second degree offense or sale or dispensing

of Schedule I or II narcotic drugs . . . by persons not drug dependent, should

ordinarily not be considered for enrollment in a PTI program except on joint

application by the defendant and the prosecutor.” Guideline 3(i) to Rule 3:28

(2014). We note that there is no similar provision dealing with the sale of


                                       10
narcotics in the post-amendment rules governing the Pretrial Intervention

Program. “To overcome 'the presumption against PTI, defendant must

establish “compelling reasons” for admission’ to the program.” Watkins,  193 N.J. at 520 (quoting Nwobu,  139 N.J. at 252).

      “PTI is essentially an extension of the charging decision, therefore the

decision to grant or deny PTI is a 'quintessentially prosecutorial function.’”

Roseman,  221 N.J. at 624 (quoting State v. Wallace,  146 N.J. 576, 582

(1996)). “As a result, the prosecutor’s decision to accept or reject a

defendant’s PTI application is entitled to a great deal of deference.” Ibid. A

court reviewing a prosecutor’s decision to deny PTI may overturn that decision

only if the defendant “clearly and convincingly” establishes the decision was a

“patent and gross abuse of discretion.” Wallace,  146 N.J. at 583.

            Ordinarily, 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 judgement. 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.

            [Roseman,  221 N.J. at 625 (quoting State v. Bender, 80
            N.J. 84, 93 (1979) (citation omitted)).]




                                        11
When a defendant convincingly demonstrates a patent and gross abuse of

discretion, a court may admit the defendant into PTI over the prosecutor’s

objection. Id. at 624-25.

      In cases concerning legal error by the prosecutor, however, “there is a

relatively low threshold for judicial intervention because '[t]hese instances

raise issues akin to questions of law, concerning which courts should exercise

independent judgment in fulfilling their responsibility to maintain the integrity

and proper functioning of PTI as a whole.’” Watkins,  193 N.J. at 520-21

(alteration in original) (quoting State v. Dalglish,  86 N.J. 503, 510 (1981)). In

such cases, a remand to the prosecutor may be appropriate so she or he may

rightly reconsider the application. Dalglish,  86 N.J. at 509-10.

                                        B.

       N.J.S.A. 2C:35-7(a) criminalizes “distributing, dispensing or possessing

with intent to distribute a controlled dangerous substance . . . within 1,000 feet

of . . . school property.” The statute is part of the Comprehensive Drug

Reform Act of 1987 (CDRA), which “was designed to create a coordinated

strategy to combat illegal drug use in New Jersey.” Caliguiri,  158 N.J. at 37

(citing W. Cary Edwards, An Overview of the Comprehensive Drug Reform

Act of 1987, 13 Seton Hall Legis. J. 5, 5 (1989)). Although violators of

 N.J.S.A. 2C:35-7(a) are guilty of a third-degree crime -- which usually carries


                                        12
a presumption of non-incarceration for first-time offenders, see  N.J.S.A.

2C:44-1(e) --  N.J.S.A. 2C:35-7(a) prescribes a mandatory-minimum sentence

of one year of imprisonment for offenders caught possessing less than one

ounce of marijuana and three years of imprisonment in all other cases. The

severity of the penalty structure reflects the CDRA’s policy “to afford special

protection to children from the perils of drug trafficking, to ensure that all

schools and areas adjacent to schools are kept free from drug distribution

activities, and to provide especially stern punishment for those drug offenders

who operate on or near schools.”  N.J.S.A. 2C:35-1.1(c).

      In Baynes, we recognized that “[t]he penalty structure for [violations of

N.J.S.A. 2C:35-7] [wa]s similar to that for second-degree offenses for which

admission to PTI is presumptively unavailable.”  148 N.J. at 449. And , in

Caliguiri, we found the “especially stern punishments” for  N.J.S.A. 2C:35-7

offenders, “[i]n light of the general tenor of the CDRA and the goals of the PTI

Guidelines,” countenanced allowing prosecutors to apply the presumption

against PTI to second-degree offenders.  158 N.J. at 43.

      But our decision then was based on a sentencing structure that has since

evolved. In 2009, the Legislature altered  N.J.S.A. 2C:35-7 by enacting a new

subsection (b). L. 2009, c. 192, § 1. Even though the mandatory minimums

were maintained,  N.J.S.A. 2C:35-7(b) now authorizes courts to “waive or


                                        13
reduce the minimum term of parole ineligibility required under subsection a.,”

or to “place the defendant on probation pursuant to paragraph (2) of subsection

b.” Before waiving or reducing the period of parole ineligibility, courts must

consider four enumerated factors:

      1. The extent and seriousness of the defendant’s criminal history,

          N.J.S.A. 2C:35-7(b)(1)(a);

      2. The proximity to school property and “the reasonable likelihood of

         exposing children to drug-related activities,” id. § 7(b)(1)(b);

      3. “[W]hether school was in session at the time of the offense,” id. §

         7(b)(1)(c); and

      4. “[W]hether children were present at or in the immediate vicinity” of

         the offense, id. § 7(b)(1)(d).

 N.J.S.A. 2C:35-7(b)(2) bars courts from waiving or reducing the minimum

term of imprisonment, or imposing probation, if the offense occurred while on

school property or involved the threat or use of violence or a firearm. N.J.S.A.

2C:35-7(b)(2)(a)-(b).

      Caliguiri’s determination that the presumption against PTI for first- and

second-degree offenses should encompass third-degree school zone offenses,

although well-reasoned at the time, is no longer consistent with the

Legislature’s intent. Based on the changed statutory language and the


                                          14
Legislature’s clear intent in amending  N.J.S.A. 2C:35-7, we hold the

presumption against PTI for first- and second-degree offenders can no longer

be applied to  N.J.S.A. 2C:35-7(a) offenders. Because the prosecutor relied, in

part, on the presumption against PTI for second-degree offenses, we believe it

appropriate to remand defendant’s application to the prosecutor to reconsider

defendant’s application. We disturb no other portion of Caliguiri.

                                         IV.

      Additionally, we find inapplicable the presumption against PTI for the

“sale or dispensing” of a Schedule I or II narcotic, as it was set forth in

Guideline 3(i).  N.J.S.A. 2C:35-7(a) uses the terms “distribute” and “dispense”

but does not use the term “sale.”

      A “sale” is “[t]he transfer of property or title for a price.” Black’s Law

Dictionary 1454 (9th ed. 2009). Whereas “distribute” is broader and can mean

“[t]o apportion,” “divide among several,” “spread out,” or “disperse.” Id. at

543. As the Appellate Division noted in Coursey, “Guideline 3(i) does not

track the language of  N.J.S.A. 2C:35-5(a)(1), because it only refers to 'sale,’

which is a subset of 'distribute,’ and it does not list possession with intent.”

 445 N.J. Super. at 511 n.1. The Coursey panel concluded that “possession

with intent to distribute is not technically a sale, nor is it 'dispensing’ as

defined in  N.J.S.A. 24:21-2 (defining to 'dispense’ as to deliver a CDS


                                         15
'subject by or pursuant to the lawful order of a practitioner’).” Id. at 510-11 &

n.1.

       Defendant was not charged with selling or dispensing narcotics because

there was no evidence that he sold or dispensed narcotics. Imputing a

presumption against PTI for a “sale” to defendant, who was charged with

“possession with intent to distribute,” was improper.

                                        V.

       The record before us makes clear that the prosecutor faithfully

considered the factors found in  N.J.S.A. 2C:43-12(e)(1) to (17), finding

several militated against acceptance of defendant’s application for PTI.

Nevertheless, because the prosecutor considered two inapplicable

presumptions found in then-Guideline 3(i), the decision to deny defendant’s

application must be reevaluated. We reverse the judgment of the Appellate

Division and remand to the prosecutor for a fresh review of defendant’s

application and, if need be, to the trial court for appropriate action following

the prosecutor’s review.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
TIMPONE’S opinion.




                                        16