IN THE MATTER OF THE CIVIL COMMITMENT OF T.R., SVP-704-14 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4896-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AUSTIN P. BACINO,
Defendant-Appellant.
_____________________________
Submitted March 14, 2017 – Decided April 3, 2017
Before Judges Reisner and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 14-09-0926.
Joseph E. Krakora, Public Defender, attorney
for appellant (Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the
brief).
Robert D. Bernardi, Burlington County
Prosecutor, attorney for respondent (Jennifer
B. Paszkiewicz, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Austin P. Bacino appeals from his rejection from
the pre-trial intervention program (PTI). We remand this case to
the PTI director and the prosecutor, to reconsider defendant's
application and render a written decision that considers
defendant's individual circumstances.
Defendant was indicted on charges of third-degree conspiracy
to distribute marijuana within 1000 feet of a school, N.J.S.A.
2C:5-2(a)(1) and N.J.S.A. 2C:35-7.1, and fourth-degree conspiracy
to distribute less than an ounce of marijuana, N.J.S.A. 2C:5-
2(a)(1) and N.J.S.A. 2C:35-5(a)(1). He was also charged with two
disorderly persons offenses - loitering and violating a municipal
ordinance. The PTI director rejected defendant's application on
October 24, 2014. The director's statement of reasons relied
exclusively on the fact that defendant was charged with school
zone drug distribution, which was "part of a criminal
business/enterprise." The statement noted that defendant's arrest
resulted from a lengthy investigation by law enforcement, and that
the execution of a search warrant revealed drug paraphernalia.
The prosecutor did not issue a separate decision.
In his PTI appeal to the Law Division judge, defendant pointed
out that the rejection decision did not acknowledge that the search
related to premises owned by an older adult who was apparently the
ringleader in a drug distribution operation, and that defendant
did not live on the premises and was not arrested there. He also
contended that the statement did not consider that defendant was
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not charged with school zone drug distribution but rather with
conspiracy. Defendant further argued that the PTI director did
not take into account his individual characteristics, including
his relative youth at age twenty-one, the influence of his older
co-defendants, his lack of an adult criminal record, the fact that
the crime was non-violent, and that he was amenable to
rehabilitation through PTI.
In response, the prosecutor's office submitted a letter
focusing on the culpability of Mr. and Mrs. Gregory, the couple
who were apparently the main targets of the police investigation
and who owned the premises that were the subject of the search
warrant. However, the letter also cited evidence, albeit of
uncharged allegations, supporting a conclusion that defendant was
selling marijuana supplied by Mr. and Mrs. Gregory or their
associates. The State contended that his participation in a
criminal business enterprise sufficed to warrant his rejection
from PTI.
The letter also baldly asserted, without citing any specifics
or analysis, that the PTI director must have considered
"defendant's age, employment status, education, and lack of
criminal record." The prosecutor offered no separate analysis or
indication that the prosecutor had considered those factors. The
letter did not even proffer an argument as to why defendant's
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individual characteristics did not outweigh the seriousness of the
crime with which he was charged.
At oral argument of the PTI appeal, the prosecutor conceded
that the director's decision was inartfully worded. The prosecutor
argued that in substance, the decision was adequate, but suggested
that if the judge believed that it was insufficient, the court
"could certainly remand it to criminal case management." In an
oral statement of reasons, the judge determined that it was not a
gross and patent abuse of discretion for the PTI director to rely
exclusively on defendant's participation in a criminal business
enterprise. Thereafter, defendant entered into a plea agreement,
pled guilty to fourth-degree conspiracy to possess marijuana with
intent to distribute, and was sentenced to a year of probation.
On this appeal, our review is limited. If a prosecutor's
decision evinces consideration of all appropriate factors, it will
not be disturbed absent a showing that it was a gross and patent
abuse of discretion. State v. K.S., 220 N.J. 190, 200 (2015).
However, if the prosecutor - or the program director, on whose
decision the prosecutor relies - fails to consider all relevant
factors, a remand is appropriate. Ibid.Having reviewed the record, we conclude that remand is
required. We acknowledge that the PTI Guidelines, Guideline
3(i)(2), provides that if a defendant is charged with a crime that
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was "part of a continuing criminal business or enterprise" his or
her "application should generally be rejected." However, such a
defendant is still entitled to "present facts” demonstrating his
or her "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." Ibid. Moreover, "the program director and
prosecutor 'must actually consider the merits of the defendant's
application.'" K.S., supra, 220 N.J. at 198 (quoting State v.
Green, 413 N.J. Super. 556, 561 (App. Div. 2010)).
We further acknowledge that, "[a]bsent evidence to the
contrary, a reviewing court must assume that all relevant factors
were considered by the prosecutor's office." State v. Baynes, 148
N.J. 434, 444 (1997). However, on this record, we can fairly
infer that no consideration was given to any factor other than
defendant's alleged participation in the Gregory family's ongoing
criminal business. Because neither the PTI director nor the
prosecutor gave any consideration to defendant's individual
characteristics, or the list of factors set forth in N.J.S.A.
2C:43-12(e), which "[p]rosecutors and program directors shall
consider" in making a PTI recommendation, defendant was not given
a meaningful opportunity to meet his burden. See K.S., supra, 220
N.J. at 198.
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As in State v. Caliguiri, 158 N.J. 28 (1999), such a one-
sided evaluation of the PTI application warrants a remand:
The school zone statute creates the
presumption against PTI, and cannot also
provide the reason Caliguiri fails to overcome
that presumption. To endorse the State's
position would effectively create a de facto
rule against PTI for N.J.S.A. 2C:35-7
offenders. Rejection based solely on the
nature of the offense is appropriate only if
the offender fails to rebut the presumption
against diversion.
A remand is appropriate because the prosecutor
failed to consider all the relevant factors.
Caliguiri's application was rejected solely
because he committed a school zone offense.
[Id. at 43-44.]
Accordingly, we remand defendant's PTI application to the
director for reconsideration, to be followed by evaluation and
reconsideration by the prosecutor. We imply no view as to whether
defendant should be admitted to PTI, but only that the director
must consider the information defendant submits and render a
written decision evincing that consideration. Thereafter, the
prosecutor must either issue a separate written decision or a
letter indicating reliance on the director's decision. Defendant
will have the right to appeal to the Law Division if he is again
rejected from PTI.
Remanded. We do not retain jurisdiction.
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