Opinion
DOCKET NO. A-2745-12T3
06-11-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. RYAN I. BUNTY, Defendant-Respondent
Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief). Frank J. Shamy argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-06-0953.
Brian D. Gillet, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Mr. Gillet, of counsel and on the brief).
Frank J. Shamy argued the cause for respondent. PER CURIAM
Plaintiff State of New Jersey appeals from the December 14, 2012 Law Division order, which granted the motion of defendant Ryan I. Bunty to compel his entry into the Middlesex County pre- trial intervention (PTI) program pursuant to N.J.S.A. 2C:43-12(f), and from the court's February 11, 2013 order denying reconsideration of the order to compel entry into PTI. We reverse and remand.
Defendant was indicted for third-degree distribution on January 27, 2012 of a controlled dangerous substance (MDMA), in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(5) (count one); third-degree distribution on January 27, 2012 of a controlled dangerous substance (MDMA) on or near school property, in violation of N.J.S.A. 2C:35-7 (count two), third-degree distribution on February 7, 2012 of a controlled dangerous substance (MDMA) in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(5) (count three); third-degree distribution on February 7, 2012 of a controlled dangerous substance on or near school property, in violation of N.J.S.A. 2C:35-7 (count four); third-degree distribution on March 21, 2012 of a controlled dangerous substance (Ketamine) in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(13) (count five); third-degree distribution on March 21, 2012 of a controlled dangerous substance on or near school property (Ketamine), in violation of N.J.S.A. 2C:35-7 (count six), third-degree distribution on April 12, 2012 of a controlled dangerous substance (MDMA), in violation of N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(5) (count seven); third-degree distribution on April 12, 2012 of a controlled dangerous substance on or near school property (MDMA), in violation of N.J.S.A. 2C:35-7 (count eight), and third-degree possession of a controlled dangerous substance (Testosterone Enanthate), in violation of N.J.S.A. 2C:35-10a(1) (count nine). The charges arose from the distribution by the defendant on four occasions of controlled dangerous substances to an undercover investigator of the Middlesex County Prosecutor's Office.
A search warrant for defendant's residence, his person and his vehicle was obtained and executed by investigators of the prosecutor's office. The resultant search disclosed glass vials containing Testosterone Enanthate, a schedule III CDS, needles, syringes, forty-five unidentified pills, and $540 in cash on defendant's person. Defendant's residence was near the Rutgers campus, and defendant was a Rutgers student.
Defendant applied for admission into PTI. On July 23, 2012, the Criminal Division Manager (CDM) rejected defendant's application. The report of the probation officer to the CDM noted that defendant was a college student who was expected to shortly receive a degree from Rutgers and that he had served in the National Guard from 2006 to 2012 when he was honorably discharged. Defendant represents that he is an Iraq war veteran. It was further noted that defendant denied any involvement in drug sales indicating that he was "helping out his friend." Defendant reported that he purchased the drug from one friend and sold it to another for the same price and therefore did not profit from the sale. However, the report stated that defendant sold two different drugs to the "friend," who turned out to be an undercover officer on four separate occasions, and that the search warrant uncovered CDS and drug paraphernalia at defendant's residence. The probation officer concluded that
Despite the favorable factors surrounding this case, (deft is a college student, is employed, and has no prior criminal record) the nature of the charges and the facts of the case need to be considered. This was not a one[-]time occurrence. Deft sold on four separate occasions over 3 months to the undercover officer. The distribution of drugs, especially in a school zone, and in the area of a college is a crime which must carry serious consequences if there is any hope of deterrence. To allow this deft into PTI would seriously depreciate the nature of the charges, therefore, deft is rejected from PTI and the case is referred to the Prosecutor to be handled via traditional means.
The prosecutor's office then considered defendant's application and rejected his admission into PTI. The prosecutor cited the following factors to support the rejection: the nature of the offense, N.J.S.A. 2C:43-12(e)(1); the facts of the case, N.J.S.A. 2C:43-12(e)(2); the needs and interests of society, N.J.S.A. 2C:43-12(e)(7); the extent to which the defendant's crime constitutes a pattern of anti-social behavior, N.J.S.A. 2C:43-12(e)(8); and the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12(e)(14). The prosecutor simply set forth the relevant statutes and did not explain the reasoning for the determination. After setting forth the same favorable factors found by the CDM, the prosecutor noted that defendant sold "MDMA and Ketamine to an undercover officer on four separate occasions" between January and April, 2012. The prosecutor also stated:
Ketamine is a very strong veterinary anesthetic sometimes used in clubs and MDMA is chemically similar to the stimulant methamphetamine and hallucinogen mescaline. As such, both drugs are very dangerous. Despite this defendant's studies into the criminal justice system, he was not deterred from selling drugs and a concern of the State is that if this defendant was selling these drugs to an undercover officer out of his home located very close to the Rutgers University campus, there is no telling how many college students that he sold to prior to being arrested. It should also be noted that when the search warrant was executed, he possessed Testosterone and syringes as well as other paraphernalia.
Defendant filed a motion to compel admission into PTI. The court granted the motion, holding that the prosecutor committed an error in judgment, failed to consider the fact that there was only a small quantity of drugs sold, "failed to consider the fact that they didn't get large quantities, they didn't get significant cash, and nothing was found in the home." The judge also stated that the "State's analysis failed to consider all relevant facts, [was] based on irrelevant or [in]appropriate factors that constituted a clear error in judgment, patent gross abuse of authority." This appeal followed.
Testosterone Enanthate, a schedule III CDS, was found at defendant's home.
On appeal, the State argues that the prosecutor's determination was not a patent and gross abuse of discretion, and, therefore, the court erred in overruling defendant's rejection from PTI.
A trial judge's conclusion that the State did not base its decision to reject a PTI application on appropriate factors raises a question of law, State v. Nwobu, 139 N.J. 236, 247 (1995), which we review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
It is essentially a prosecutorial function to decide whether to accept or reject a defendant's PTI application. State v. Leonardis, 73 N.J. 360, 381 (1977) (Leonardis II). Prosecutors are granted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003); Nwobu, supra, 139 N.J. at 246. We afford the prosecutor's decision an enhanced level of deference, State v. Baynes, 148 N.J. 434, 443-44 (1997); State v. DeMarco, 107 N.J. 562, 566 (1987); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993), and it is expected that a prosecutor's decision to reject a PTI applicant "will rarely be overturned." State v. Wallace, 146 N.J. 576, 585 (1996) (quoting Leonardis II, supra, 73 N.J. at 380).
However, "[a] prosecutor's discretion [regarding] a PTI application is not without its limits[.]" Negran, supra, 178 N.J. at 82; State v. Brooks, 175 N.J. 215, 225 (2002). The prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (citations omitted). As part of a determination that is "primarily individualistic in nature," id. at 80, the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, and "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citing N.J.S.A. 2C:43-12(b)). See also State v. Mosner, 407 N.J. Super. 40, 55 (App. Div. 2009).
A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584. See also Nwobu, supra, 139 N.J. at 249. ("The statement of reasons may not simply 'parrot' the language of relevant statutes, rules, and guidelines.").
To reverse, "[t]he court must find that the prosecutor based a decision on an inappropriate factor, failed to mention a relevant factor, or so inappropriately weighed the relevant factors that the decision amounts to a 'patent and gross abuse of discretion.'" State v. Caliguiri, 158 N.J. 28, 37 (1999) (quoting Wallace, supra, 146 N.J. at 584). See also Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246. To warrant judicial intervention, the prosecutor's consideration must amount to a "clear error in judgment" that "subvert[s] the goals underlying pretrial intervention." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 572 (2002); Caliguiri, supra, 158 N.J. at 37; State v. Bender, 80 N.J. 84, 93 (1979).
A review of the stated reasons for the prosecutor's rejection of defendant's application shows that the prosecutor failed to meet this standard. As acknowledged by the prosecutor, this offense constituted defendant's first arrest. The offense itself was not of an assaultive or violent nature and there was no history of violence or "traditional organized crime." N.J.S.A. 2C:43-12(e)(10), (12), (13).
The prosecutor's heavy reliance upon the nature of the offense exceeded what was appropriate under the law. The nature of the offense may, in appropriate circumstances, serve as the sole basis for rejecting an applicant from PTI. Caliguiri, supra, 158 N.J. at 36; Leonardis II, supra, 73 N.J. at 382. The PTI Guidelines provide that a presumption against acceptance applies if "[a] defendant charged with a first or second degree offense . . . should ordinarily not be considered for enrollment in a PTI program. . . ." Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) at 1145 (2013).
Although it is appropriate to reject a PTI application when the nature of the offense is presumptively disqualifying, Caliguiri, supra, 158 N.J. at 36, that presumption does not end the inquiry. The defendant may still be admitted if he shows "compelling reasons" to be admitted to PTI. Ibid.; see Pressler & Verniero, supra, Guideline 3(i); Nwobu, supra, 139 N.J. at 252-53. In Caliguiri, the prosecutor treated a charge of possession of marijuana with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, as a presumptively disqualifying offense because, even though it was a third-degree offense, the offense carried a mandatory term of imprisonment. Caliguiri, supra, 158 N.J. at 34. The Supreme Court remanded the application to the prosecutor for reconsideration and required the offender to show compelling reasons for his admission in light of the offense. Id. at 44.
A threshold issue for evaluating the exercise of discretion is whether there is evidential support for the findings that form a basis for the determination under review. In State v. Dalziel, 182 N.J. 494, 496, 501 (2005), the Court observed, "we will always require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence." (Internal citation and quotation marks omitted).
Also, the prosecutor is required to evaluate the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines in determining whether an applicant should be admitted into PTI. Negran, supra, 178 N.J. at 80-81. As part of a determination that is "primarily individualistic in nature," id. at 80 (internal citation and quotation marks omitted), the prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation, "assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" Watkins, supra, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)); see also Mosner, supra, 407 N.J. Super. at 55-56.
As the Brooks Court noted, a prosecutor's analysis in these circumstances "'is much like that which is made in connection with sentencing, where the so-called whole man is evaluated by the court in order to arrive at an appropriate disposition.'" 175 N.J. at 229 (quoting State v. Pickett, 186 N.J. Super. 599, 604 (Law Div. 1982)). A prosecutor is also "required to provide a criminal defendant with a statement of reasons justifying his or her PTI decision, and the statement of reasons must demonstrate that the prosecutor has carefully considered the facts in light of the relevant law." Wallace, supra, 146 N.J. at 584; see also Nwobu, supra, 139 N.J. at 249.
The prosecutor's statement of reasons for the rejection of defendant's PTI application fails to reflect the evaluation of all the criteria set forth in N.J.S.A. 2C:43-12(e) and the Rule 3:28 Guidelines and the "individualistic" determination that is required to merit our deference. Moreover, the inferential criterion that "there is no telling how many college students that [defendant] sold to prior to being arrested" cited by the prosecutor in denying the application, is not supported by the evidence.
As a preliminary matter, the prosecutor's objection letter fails to address any facts relating to defendant's "amenability to rehabilitation" and potential "responsiveness to rehabilitation." Instead, the prosecutor seems to rely predominately upon Guideline 3(i), the assessment of the nature of the offense, as justification for the rejection. The prosecutor, characterizing the drugs sold as "very dangerous," applied a factor not recognized by the Guideline. The Guideline identifies certain offenses as presumptively disqualifying, such as a first- or second-degree offense and offenses that are "part of organized criminal activity; or . . . part of a continuing criminal business or enterprise[.]" Here, the defendant was not charged with any first- or second-degree presumptively ineligible crime.
Nonetheless, the prosecutor found that defendant's application should be rejected because of "the nature of the offense" and that the drugs sold "are very dangerous." This result is at odds with the Legislature's stated intent that drug offenders should not be precluded from PTI. See Caliguiri, supra, 158 N.J. at 39.
We are satisfied that the facts cited by the prosecutor are insufficient to reject defendant's PTI application. Further, the failure to consider facts relevant to a determination of defendant's potential for rehabilitation constituted an additional defect in the prosecutor's review process. As that type of "[f]ailure to provide 'comprehensive and flexible' evaluation 'undermine[s] the efficacy of PTI[,]'" Caliguiri, supra, 158 N.J. at 39 (quoting State v. Leonardis I, 71 N.J. 85, 100 (1976)), we are further satisfied that the prosecutor's judgment "subvert[ed] the goals underlying pretrial intervention." Flagg, supra, 171 N.J. at 572; Caliguiri, supra, 158 N.J. at 37; Bender, supra, 80 N.J. at 93.
However, given the incomplete consideration of the relevant factors by the prosecutor, the trial court had insufficient facts to conclude that the prosecutor's decision amounted to a "patent and gross abuse of discretion." We therefore "provide the prosecutor with the opportunity to take a fresh look at defendant's application for admission into PTI." DeMarco, supra, 107 N.J. at 573.
We reverse the decision of the trial court and remand for further consideration consistent with this opinion. See Caliguiri, supra, 158 N.J. at 37 ("[I]f a prosecutor fails to consider all the relevant factors or considers inappropriate factors, a court may remand the matter for further consideration."). We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION