Can I get into PTI for selling weed?

Did my lawyer do enough to try to get me into PTI?

What are the factors to be considered to get me into PTI? If the prosecutor’s office rejects my application can I go before the Judge and ask him to allow me to get into PTI?  

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

All of these issues are addressed in this case.  The facts are as follows:

  1.   On January 19, 2016, an undercover investigator with the Middlesex County Prosecutor’s Office (MCPO) Task Force completed a controlled purchase of .99 grams of marijuana from defendant for $20.
  2. The transaction took place within 1000 feet of Mill Lake Elementary School and within 500 feet of the Monroe Community Center.
  3. On January 27, 2016, an undercover MCPO officer completed a second controlled purchase of 7.06 grams of marijuana from defendant for $110.4.
  4. These drug transactions resulted in defendant’s arrest on March 29, 2016. Following his arrest, police observed defendant chewing on a green vegetation they believed to be marijuana.
  5. The police asked defendant how much marijuana he ate, to which he responded he “didn’t eat shit.”
  6. Defendant was subsequently charged in Middlesex County Indictment No. 16-06-1041 with two 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) (counts one and four); third-degree distribution of marijuana on or near school property, N.J.S.A. 2C:35-7 (count two); third-degree distribution of marijuana within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count three); and fourth- degree evidence tampering, N.J.S.A. 2C:28-6(1).
  7. Defendant applied for admission into PTI after he was indicted. The Criminal Division Manager, as the PTI Director, recommended defendant’s admission into PTI.
  8. According to the recommendation report, defendant was then an unmarried twenty-two year old high school graduate who had attended one semester of college. He was currently unemployed but actively seeking employment. 9.He reported smoking marijuana daily when he was younger, but recently smoked only occasionally. Documentation showed defendant participated in counselling programs in 2015 and 2016 for treatment of alcohol use disorder and cannabis use disorder.
  9. The report stated defendant had a record of two juvenile offenses in 2007 that were dismissed. As an adult, defendant had municipal court convictions for criminal trespass and wandering, a local ordinance violation, and a traffic violation for underage drinking.

In order for the court t review a PTI denial from the prosecutor’s office the case law requires the following:

“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)). Accordingly, “a PTI determination requires that the prosecutor make an individualized assessment of the defendant considering his or her ‘amenability to correction’ and potential ‘responsiveness to rehabilitation.'” Id. at 621-22 (quoting State v. Watkins, 193 N.J. 507, 520 (2008)). The scope of judicial review of the prosecutor’s rejection of PTI is “severely limited.” State v. Negran, 178 N.J. 73, 82 (2003). Deciding whether to permit diversion to PTI “is a quintessentially prosecutorial function.” State v. Wallace, 146 N.J. 576, 582 (1996). “Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor’s options.” Nwobu, supra, 139 N.J. at 246 (quoting Kraft, supra, 265 N.J. Super. at 111-12). Accordingly, courts give prosecutors “broad discretion” in determining whether to divert a defendant into PTI. State v. K.S., 220 N.J. 190, 199 (2015). Thus, courts must “accord[] enhanced deference to a prosecutor’s decision in respect of a PTI application.” State v. Brooks, 175 N.J. 215, 225 (2002).

The PTI statute requires prosecutors to consider a non- exclusive list of seventeen criteria. N.J.S.A. 2C:43-12(e). These criteria “include ‘the details of the case, defendant’s motives, age, past criminal record, standing in the community, and employment performance[.]'” Roseman, supra, 221 N.J. at 621 (quoting Watkins, supra, 193 N.J. at 520). “In order to overturn a prosecutor’s rejection, a defendant must ‘clearly and convincingly establish that the prosecutor’s decision constitutes a patent and gross abuse of discretion.'” Watkins, supra, 193 N.J. at 520 (citation omitted). “A patent and gross abuse of discretion is defined as a decision that ‘has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'” Ibid. (citation omitted). An abuse of discretion is manifested where it can be proven “that the [PTI] denial ‘(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[.]'” State v. Lee, 437 N.J. Super. 555, 563 (2014) (quoting State v. Bender, 80 N.J. 84, 93 (1979)), certif. denied, 222 N.J. 18 (2015).

This court ruled that the trial judge substituted his judgement for that of the prosecutor’s office which s/he should not have done!  The opinion provided:

“Even if a “‘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,'” that constitutes only “‘an abuse of discretion.'” Wallace, supra, 146 N.J. at 583. “A ‘patent and gross abuse of discretion’ is more than just an abuse of discretion as traditionally conceived[.]” Id. at 582-83. “‘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.'” Id. at 583 (citation omitted). “We must apply the same standard as the trial court,” and review the “judge’s reversal of the prosecutor’s decision de novo.” State v. Waters, 439 N.J. Super. 215, 226 (App. Div. 2015). Guided by these standards, we conclude the judge erred in ordering defendant’s admission into PTI over the prosecutor’s objection. We are convinced from our review of the record that the prosecutor considered, weighed, and balanced all of the requisite factors, including those personal to defendant as well as the facts and circumstances of the offense.

The prosecutor not only gave significant emphasis to the circumstances of the offense, but also considered defendant’s individual characteristics. The prosecutor considered mitigating factors personal to defendant, such as his age, background and motivation to complete the PTI program and turn his life around. The prosecutor did not consider inappropriate factors. Contrary to defendant’s argument, the prosecutor stated he would not weigh defendant’s refusal to submit to a urine test against him, and that refusal played no role in the prosecutor’s ultimate analysis. The judge erred by interjecting himself into the process of weighing the applicable PTI factors, and predicated his decision upon his own assessment of those factors. Contrary to the judge’s determination, the prosecutor’s assessment of factors eight and nine was not inaccurate. Rather, the prosecutor’s position that defendant’s two drug sales, tampering with evidence, subsequent marijuana use, and prior municipal convictions, established a pattern of antisocial behavior, finds clear support in the record. The judge also misread factor eleven to refer to rehabilitation when by its terms that factor focuses on whether “prosecution would exacerbate the social problem which caused defendant’s criminal act.” Here, defendant was charged with a number of offenses spanning three different dates, including distributing marijuana in a school zone. As the State points out, “[t]he school zone statute creates the presumption against PTI[.]” State v. Caliguiri, 158 N.J. 28, 43 (1999).1 Defendant responds that New Jersey’s drug laws have undergone substantial changes since 1999, thus rendering the holding in Caliguiri inapplicable to the present case.2 We need not decide the issue, since in any event the judge improperly discounted defendant’s drug sales and their location because they were controlled purchases. Even if the undercover officer(s) made the purchases and chose the location, defendant was willing to sell the drugs at that location. In his brief to the trial court, defendant conceded that factor seven, “[t]he needs and interests of society,” bore “considerable weight against [him].” Moreover, the judge relied on the importance of addressing defendant’s addiction, but defendant never contended he was addicted, or that addiction caused him to make the sales or swallow the marijuana.

While reasonable minds could differ in analyzing and balancing the applicable factors in this case, judicial disagreement with a prosecutor’s reasons for rejection does not equate to a clear error of judgment or an abuse of discretion by the prosecutor. State v. DeMarco, 107 N.J. 562, 566-67 (1987). In this instance, the judge improperly substituted his own discretion for that of the prosecutor. Also, defendant did not show and the judge did not find that the prosecutor’s decision would clearly subvert the goals underlying PTI.

Call Hark & Hark if you are in this position and your attorney is not fighting hard enough!  We handle PTI appeals all over the state and will fight

a) to get you into PTI, and

b) will appeal to the court if the county prosecutor does not allow you into the program!

You need an attorney who will fight for you!  Call Hark & Hark – (866) 427-5529

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