PTI Appeal—- Abuse of Prosecutor’s Discretion when considering factors no longer applicable!

State v. Davon M. Johnson New Jersey Supreme Court Argued March 11, 2019 — Decided May 30, 2019

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Issue on Appeal: 

Johnson’s unsuccessful application for pretrial intervention (PTI).  Johnson was charged with third-degree possession of a controlled dangerous substance (CDS) within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a).  Because the defendant was charged with second-degree offenses there is a statutory presumption against PTI for the sale of narcotics were cited in the denial of his application. The Supreme Court considered 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. (This “Compelling Circumstances letter” is the new process by which those charged with 2nd degree crimes can apply for PTI with such an accompanying letter for the County Criminal Case manager to consider and then refer the matter to the County Prosecutor’s Office as well.  Here, the prosecutor rejected defendant’s application relying 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).


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.

Factors to consider:

  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).
  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.
  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.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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