State of New Jersey v. Alfred W. Coursey, III , 445 N.J. Super. 506 ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1415-14T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 6, 2016
v. APPELLATE DIVISION
ALFRED W. COURSEY, III,
Defendant-Appellant.
___________________________
Submitted April 26, 2016 - Decided June 6, 2016
Before Judges Reisner, Hoffman and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County,
Indictment No. 14-03-00121.
Joseph E. Krakora, Public Defender, attorney
for appellant (Elizabeth C. Jarit, Assistant
Deputy Public Defender, of counsel and on
the brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Lisa M. Rastelli,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Defendant Alfred W. Coursey, III, appeals from his
conviction for third-degree possession of cocaine, N.J.S.A.
2C:35-10(a)(1). The judgment of conviction was based on
defendant's guilty plea, following his indictment for fourth-
degree possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5(a)(1), -5(b)(12), and third-degree cocaine
possession. Defendant was sentenced to one year of probation.
Defendant's appeal focuses on the denial of his suppression
motion, and his rejection from the pre-trial intervention
program (PTI). He presents the following points of argument:
I. THE COURT ERRED IN DENYING THE
DEFENDANT'S SUPPRESSION MOTION BECAUSE
THE TROOPER LACKED AUTHORITY TO MAKE A
WARRANTLESS ARREST BASED SOLELY ON THE
SMELL OF MARIJUANA.
II. THE PROSECUTOR'S REJECTION OF
DEFENDANT'S ADMISSION INTO PTI WAS
BASED ON A CATEGORICAL BAN OF ADMISSION
FOR ALL PERSONS CHARGED WITH FOURTH-
DEGREE POSSESSION OF MARIJUANA WITH
INTENT TO DISTRIBUTE, REQUIRING
REVERSAL OF THE REJECTION OR,
ALTERNATIVELY, A REMAND FOR
RECONSIDERATION.
A. BECAUSE THE PROSECUTOR APPLIED A
CATEGORICAL BAR TO ADMISSION BASED
ON THE OFFENSE CHARGED, A REMAND
IS REQUIRED FOR RECONSIDERATION.
B. IN ADDITION, BECAUSE GUIDELINE
3(I) DOES NOT LIST POSSESSION WITH
INTENT TO DISTRIBUTE CDS AS A
CRIME FOR WHICH THE PRESUMPTION
AGAINST ADMISSION ATTACHES, AND
BECAUSE MARIJUANA CAN NO LONGER BE
PROPERLY CLASSIFIED AS A SCHEDULE
I SUBSTANCE, THE PROSECUTOR
APPLIED THE INCORRECT STANDARD FOR
DETERMINING ADMISSION.
2 A-1415-14T1
C. EVEN IF NO CATEGORICAL BAR WAS
IMPOSED AND THE PRESUMPTION
AGAINST ADMISSION APPLIES, THE
PROSECUTOR'S REJECTION OF
COURSEY'S PTI APPLICATION WAS A
PATENT AND GROSS ABUSE OF
DISCRETION.
III. A REMAND IS REQUIRED BECAUSE THE
DEFENDANT WAS PRECLUDED FROM PRESENTING
EVIDENCE OF HIS DRUG DEPENDENCY, WHICH
WOULD HAVE NEGATED THE PRESUMPTION
AGAINST ADMISSIBILITY.
Having reviewed the record in light of the applicable legal
standards, we affirm the denial of defendant's suppression
motion. However, because both the prosecutor's office and the
trial court mistakenly applied PTI Guideline 3(i) to fourth-
degree possession of marijuana with intent to distribute, we
reverse the order denying his PTI appeal and remand for
reconsideration of his application by the prosecutor's office.
[At the Court's direction, Part I of the
opinion has been omitted from the published
version.]
II
Next we address defendant's argument concerning his
exclusion from PTI. The prosecutor relied in part on the
presumption against admission into PTI of non-addicts charged
with the sale or distribution of Schedule I or II narcotics.
See Guidelines for Operation of Pretrial Intervention in New
Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline
3 A-1415-14T1
3(i), following R. 3:28 at 1193 (2016) (hereinafter Guideline
3(i)). The prosecutor rejected defendant's PTI application,
reasoning that the eighteen bags of marijuana, plus cocaine, and
about $500 in cash, found during the search, were evidence that
defendant intended to sell the drugs for profit and not to
support an addiction. The prosecutor noted the absence of
evidence that defendant was a drug addict or possessed those
amounts of drugs for personal use. In denying defendant's PTI
appeal the trial court relied on the same presumption against
PTI admission, based on defendant's being charged with
possession of marijuana with intent to distribute.
We conclude that the prosecutor erred in applying Guideline
3(i), because 3(i) does not apply to third or fourth-degree
marijuana possession with intent to distribute. Cf. State v.
Caliguiri, 158 N.J. 28, 32, 43 (1999) (third-degree marijuana
possession with intent to distribute in a school zone, N.J.S.A.
2C:35-7, an offense "carrying a mandatory term of
imprisonment[,]" can be treated as included in Guideline 3(i)).
The applicable PTI Guideline applies a presumption against
PTI eligibility for defendants charged with crimes of violence,
organized crime, breach of the public trust, or with some of the
most serious drug-related offenses. Guideline 3(i). In
pertinent part it provides:
4 A-1415-14T1
A defendant charged with a first or second
degree offense or sale or dispensing of
Schedule I or II narcotic drugs as defined
in L. 1970, c. 226 (N.J.S.A. 24:21-2 et
seq.) 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.
However, in such cases, the applicant shall
have the opportunity to present to the
criminal division manager, and through the
criminal division manager to the prosecutor,
any facts or materials demonstrating the
applicant's amenability to the
rehabilitative process, showing compelling
reasons justifying the applicant's admission
and establishing that a decision against
enrollment would be arbitrary and
unreasonable.
[Guideline 3(i) (emphasis added).]
As previously noted, Guideline 3(i), by its terms, applies
to violent offenses and other "serious or heinous crimes."
State v. Watkins, 193 N.J. 507, 514 (2008). The enumerated
offenses "represent a legislative decision to prevent serious
offenders from avoiding prosecution in ordinary circumstances."
Caliguiri, supra, 158 N.J. at 42. The listed offenses include
"sale or dispensing of Schedule I or II narcotic drugs as
defined in . . . N.J.S.A. 24:21-1 et seq." Guideline 3(i).
Marijuana is still included in the definition of a Schedule
I controlled dangerous substance (CDS). N.J.S.A. 24:21-
5(e)(10); see Myers, supra, 442 N.J. Super. at 298, 302-04.
However, marijuana is not a "narcotic drug" as defined in
5 A-1415-14T1
N.J.S.A. 24:21-2 (defining "narcotic drug" as "[o]pium, coca
leaves, and opiates," as well as related substances). Moreover,
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 "subject by or pursuant to the
lawful order of a practitioner").
The Supreme Court in Caliguiri provided guidance on how to
interpret Guideline 3(i) generally and in this instance. In
Caliguiri, the Court addressed the application of Guideline 3(i)
to a defendant charged with possession of marijuana with intent
to distribute in a school zone, N.J.S.A. 2C:35-7, a third-degree
crime. Caliquiri, supra, 158 N.J. at 42-43. The Court
concluded that, because the Legislature had chosen to treat
school zone drug offenses as particularly serious crimes, by
giving them a penalty structure "'similar to that for second-
degree offenses,'" including a mandatory prison term, the
defendant should be subject to 3(i), as though he had been
charged with a second-degree drug offense. Id. at 32, 43(quoting State v. Baynes, 148 N.J. 434, 449 (1997)). Clearly,
if possession of marijuana with intent to distribute were
already included in 3(i), the Court would not have needed to
consider that issue. Hence, we infer that the Court did not
consider ordinary third-degree or lower charges of marijuana
6 A-1415-14T1
possession with intent to distribute as being covered by
Guideline 3(i). In light of Caliguiri, and given the remedial
purpose of PTI, we will not construe Guideline 3(i) as applying
to the relatively low-level offenses of non-school-zone third or
fourth-degree possession of marijuana with intent to distribute.
See N.J.S.A. 2C:43-12(a); State v. Roseman, 221 N.J. 611, 621-22
(2015); Watkins, supra, 193 N.J. at 513.1
1
Based only on its wording, it is not clear whether Guideline
3(i) applies to possession of Schedule I and II narcotics with
intent to distribute, or only to the "sale" of those narcotics.
The term "distribute" includes both selling or sharing CDS. See
N.J.S.A. 24:21-2; State v. Roach, 222 N.J. Super. 122, 126-27
(App. Div. 1987), certif. denied, 110 N.J. 317 (1988). The
pertinent criminal statute, N.J.S.A. 2C:35-5, makes it unlawful
"[t]o manufacture, distribute or dispense, or to possess . . .
with intent to manufacture, distribute or dispense, a controlled
dangerous substance." N.J.S.A. 2C:35-5(a)(1) (emphasis added).
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. On
the one hand, it is possible that 3(i) intentionally listed only
the "sale" of CDS because it was aimed at persons who sell drugs
for profit, as opposed to individuals who share CDS with
companions. On the other hand, under N.J.S.A. 2C:35-5(b),
possession with intent to distribute the listed drugs is the
same degree crime as the sale of those drugs, suggesting that
under Caliguiri's rationale 3(i) would, for example, apply to
possession with intent to distribute heroin equally with the
sale of heroin. Because marijuana is plainly not a "narcotic
drug" within the meaning of 3(i), and because Caliguiri did not
consider third-degree possession of marijuana with intent to
distribute to be itself sufficient to trigger 3(i), we need not
definitively address the issue in this case. However, we refer
this issue to the Criminal Practice Committee for its
consideration.
7 A-1415-14T1
A defendant charged with one of the crimes included in
Guideline 3(i) faces a significant hurdle to PTI admission,
which other applicants need not surmount. Accordingly, the
mistaken application of Guideline 3(i) to a defendant not
charged with one of the included crimes constitutes a gross and
patent abuse of the prosecutor's discretion. See Roseman,
supra, 221 N.J. at 627; State v. Bender, 80 N.J. 84, 93 (1979).
In this case, the prosecutor applied the presumption of PTI
ineligibility to defendant, based on his having been charged
with fourth-degree possession of marijuana with intent to
distribute, N.J.S.A. 2C:35-5(b)(12). The trial court applied
the presumption as well. That error requires that we reverse
the PTI order on appeal and remand this case to the prosecutor
for reconsideration ab initio. See Roseman, supra, 221 N.J. at
629; Bender, supra, 80 N.J. at 97.
In addition to challenging the prosecutor's PTI decision,
defendant argues that his trial counsel was ineffective in
failing to bring to the prosecutor's attention defendant's
substance abuse problems. We also note that, in sentencing
defendant, the trial judge did consider his drug problem as a
mitigating factor. Even if not required to address Guideline
3(i), evidence of a defendant's drug dependency may be an
important factor in a PTI application. See N.J.S.A. 2C:43-
8 A-1415-14T1
12(a)(1). To avoid a miscarriage of justice, we direct that, as
part of the prosecutor's reconsideration of defendant's PTI
application, defendant shall be given an opportunity to submit
to the prosecutor any available evidence that he was drug
dependent at the time he committed the offenses with which he
was charged.2 Given the passage of time, and our requirement
that the review be ab initio, defendant may also bring to the
prosecutor's attention any other pertinent information bearing
on his PTI application. See State v. Randolph, 210 N.J. 330,
354 (2012).
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
2
In light of our disposition of this appeal, we need not
consider defendant's additional appellate arguments.
9 A-1415-14T1