State v. Davon M. Johnson (080394) (Essex County and Statewide) , 238 N.J. 119 ( 2019 )


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  •                                           SYLLABUS
    This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
    Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
    Court. In the interest of brevity, portions of an opinion may not have been summarized.
    State v. Davon M. Johnson (A-58-17) (080394)
    Argued March 11, 2019 -- Decided May 30, 2019
    TIMPONE, J., writing for the Court.
    This appeal arises from defendant Davon M. Johnson’s unsuccessful application for
    pretrial intervention (PTI), filed in anticipation of his indictment for third-degree possession
    of a controlled dangerous substance (CDS) within 1000 feet of a school zone, N.J.S.A.
    2C:35-7(a). Both the presumption against PTI for second-degree offenses and the
    presumption against PTI for the sale of narcotics were cited in the denial of his application.
    The Court considers 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. The prosecutor rejected defendant’s application. She
    relied 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).
    HELD: 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.
    1
    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). (pp. 9-11)
    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. (pp. 12-15)
    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. (pp. 15-16)
    The judgment of the Appellate Division is reversed and the matter is remanded.
    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
    FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’S opinion.
    2
    SUPREME COURT OF NEW JERSEY
    A-58 September Term 2017
    080394
    State of New Jersey,
    Plaintiff-Respondent,
    v.
    Davon M. Johnson,
    Defendant-Appellant.
    On certification to the Superior Court,
    Appellate Division.
    Argued                      Decided
    March 11, 2019               May 30, 2019
    Peter T. Blum, Assistant Deputy Public Defender, argued
    the cause for appellant (Joseph E. Krakora, Public
    Defender, attorney; Peter T. Blum, of counsel and on the
    briefs).
    Kayla Elizabeth Rowe, Deputy Attorney General, argued
    the cause for respondent (Gurbir S. Grewal, Attorney
    General, attorney; Kayla Elizabeth Rowe, of counsel and
    on the briefs).
    JUSTICE TIMPONE delivered the opinion of the Court.
    1
    This appeal arises from defendant Davon M. Johnson’s unsuccessful
    application for pretrial intervention (PTI), filed in anticipation of his
    indictment for third-degree possession of a controlled dangerous substance
    (CDS) within 1000 feet of a school zone, N.J.S.A. 2C:35-7(a). The significant
    question before us is whether the presumption against PTI for second-degree
    offenses or the presumption against PTI for the sale of narcotics should have
    been applied in this case.
    In State v. Caliguiri, we recognized the presumption against PTI for
    second-degree offenses could be applied to N.J.S.A. 2C:35-7 offenders
    because, at the time, a school-zone conviction required the imposition of a
    period of parole ineligibility. 
    158 N.J. 28
    , 37-38, 42-43 (1999). We observed
    that “[t]he penalty structure for this type of offense [was] similar to that for
    second-degree offenses for which admission to PTI is presumptively
    unavailable.” 
    Id. at 43
     (quoting State v. Baynes, 
    148 N.J. 434
    , 449 (1997)).
    Since Caliguiri was decided, the Legislature amended N.J.S.A. 2C:35-7,
    modifying and relaxing the statute’s sentencing structure. See L. 2009, c. 192,
    § 1. While maintaining the statute’s mandatory-minimum sentencing
    structure, the Legislature granted courts the latitude to waive or reduce the
    period of parole ineligibility or impose a term of probation under certain
    circumstances. Ibid.
    2
    We find that 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. Accordingly, we hold the presumption against PTI
    for second-degree offenders cannot be applied to N.J.S.A. 2C:35-7(a)
    offenders.
    We also find that 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.
    Despite the prosecutor’s dutiful consideration of defendant’s application
    for PTI, including the factors set forth in N.J.S.A. 2C:43-12(e), both
    presumptions were cited in the denial of his application. We remand so that
    the prosecutor can reassess defendant’s application without consideration of
    the presumptions.
    I.
    A.
    We distill the following facts from the record in the PTI proceedings.
    On May 18, 2014, defendant was driving through Newark when he was
    stopped by a Newark police officer for running a red light. As defendant
    reached into the glove compartment for his credentials, three bricks of heroin
    3
    fell to the floor. Each brick contained 150 individual bags of heroin.
    Defendant was charged with third-degree possession of heroin, N.J.S.A.
    2C:35-10(a)(1), third-degree possession of heroin with intent to distribute,
    N.J.S.A. 2C:35-5(b)(3), and third-degree possession of heroin with intent to
    distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7. He was also
    charged with two motor vehicle violations for his failure to observe the red
    light, N.J.S.A. 39:4-81, and for the possession of a CDS in a motor vehicle,
    N.J.S.A. 39:4-49.1.
    On July 10, 2014, defendant applied for PTI and included a two-page
    statement of compelling reasons supporting his admission in accord with
    Guideline 2 to Rule 3:28 (2014). Since the Guidelines were eliminated in
    2018, Rule 3:28-3(b)(1) now provides for the submission of a statement of
    compelling reasons. As defendant’s letter explained, defendant, who was
    twenty-one years old at the time of his arrest, had no prior criminal history,
    graduated from high school, matriculated into Bloomfield College where he
    studied accounting, worked on a cabin maintenance and cleaning team at
    Newark Liberty International Airport, and spent time with his younger sisters,
    nieces, and nephews. In the statement, defendant asserted PTI would be
    sufficient to deter any future unlawful conduct, and an indictable conviction
    4
    would cause a substantial hardship to him and his family by inhibiting his
    chances of completing college and obtaining employment.
    After reviewing defendant’s application and statement, the Probation
    Office recommended defendant’s application for PTI be denied. Highlighting
    that defendant was found with 150 glassine envelopes of heroin and reported
    no history of substance abuse, the Probation Office reasoned his application
    should be denied “[b]ased on the facts of the case and the likelihood of the
    present offense being a part of an organized criminal activity as well as a
    pattern of anti-social activity.”
    On November 7, 2014, the prosecutor rejected defendant’s application
    for PTI. She found five of the N.J.S.A. 2C:43-12(e) factors to be aggravating
    factors. In particular, the prosecutor found defendant presumptively ineligible
    for PTI under N.J.S.A. 2C:43-12(e)(1) based on the nature of the offense. She
    relied on our decision in Caliguiri, 
    158 N.J. at 43
    , permitting prosecutors, for
    PTI evaluation purposes, 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 Guideline 3(i), the prosecutor found defendant was also
    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.
    5
    The prosecutor found several mitigating factors present in defendant’s
    case, including defendant’s age; his lack of criminal history; the absence of
    violence in commission of the crime; the absence of evidence suggesting
    defendant’s involvement with organized crime; and the absence of other
    defendants. See N.J.S.A. 2C:43-12(e)(3), (9), (10), (13), and (16). Weighing
    the factors, the prosecutor determined that defendant had “not presented
    sufficient compelling reasons justifying admission into PTI,” and that he had
    failed to “overcome his heavy burden of rebutting the presumptions against his
    admission.” Following the denial of his application, an Essex County Grand
    Jury indicted defendant on January 9, 2015, on the charges contained in the
    original compliant.
    B.
    On March 23, 2015, before trial, defendant filed an untimely appeal to
    the Law Division, seeking review of the denial of his PTI application. The
    trial court refused to disturb the prosecutor’s determination. In addition to
    finding the appeal procedurally barred under the then-existing Rule 3:28(h),
    which required an appeal of the denial of PTI to be filed within ten days (now
    codified in Rule 3:28-6(a)), the court found defendant did not establish that the
    prosecutor failed to conduct an individualized analysis of his PTI application.
    The court also found the prosecutor correctly applied the presumption against
    6
    PTI because the prosecutor charged defendant under N.J.S.A. 2C:35-7
    (possession of controlled dangerous substances near or on school property) .
    The court reasoned defendant’s application was properly denied because he
    failed to show compelling reasons demonstrating his amenability to
    rehabilitation or something idiosyncratic in his background that would
    overcome the presumption against admission.
    Three months later, defendant entered a guilty plea to third-degree
    possession of heroin, N.J.S.A. 2C:35-10(a)(1). The court sentenced defendant
    to two years’ probation and 190 hours of community service.
    C.
    Defendant appealed to the Appellate Division, arguing the prosecutor
    incorrectly applied the two presumptions against admission into PTI.
    Defendant asserted that the presumption against PTI for N.J.S.A. 2C:35-7
    offenders was no longer viable in light of amendments made to that statute in
    2009. He also disputed the prosecutor’s application of the presumption against
    PTI for the “sale or dispensing” of narcotics because he was not engaged in or
    charged with the sale of heroin.
    Despite finding defendant’s arguments procedurally barred because he
    did not raise them below, the appellate panel commented on the merits of his
    claim. Relying on the Appellate Division’s recent decision in State v.
    7
    Coursey, 
    445 N.J. Super. 506
    , 511 (App. Div. 2016), which recognized
    Caliguiri as providing guidance on how to interpret Guideline 3(i), the panel
    determined that the presumption against PTI had not been eroded by the
    amendments to N.J.S.A. 2C:35-7. The panel dismissed defendant’s second
    argument as meritless, reasoning that the presumption against PTI was applied
    in Caliguiri, where the defendant was also charged with possession in a school
    zone under similar circumstances.
    We granted Defendant’s petition for certification. 
    233 N.J. 23
     (2018).
    II.
    A.
    Defendant reasserts that the 2009 amendments significantly relaxed
    N.J.S.A. 2C:35-7’s sentencing structure and that the typical offender “should
    be treated like an ordinary third-degree offender.” Defendant also resubmits
    that the presumption against PTI for the “sale” of narcotics should not have
    been applied because he was charged with possession with intent to distribute,
    and the term “distribute” used in the statute is broader than the term “sale” that
    was used in the Guidelines. Lastly, defendant contends the prosecutor abused
    her discretion in denying his application.
    8
    B.
    The State disputes that the 2009 amendments overrode the presumption
    against PTI articulated in Caliguiri. The State contends that the 2009
    amendments in no way suggest that the Legislature no longer views possession
    of heroin with intent to distribute it in a school zone as a serious offense,
    highlighting that the Legislature maintained the presumption of incarceration.
    Next, the State asserts the facts of this case are clear and show defendant
    intended to sell the heroin. The State insists that defendant should not be freed
    from the presumption against PTI merely because he was arrested before he
    could complete the sale.
    Finally, the State argues that it is in the prosecutor’s discretion whether
    to recommend a defendant for PTI and that, in denying defendant’s application
    in this case, the prosecutor carefully considered all relevant factors under
    N.J.S.A. 2C:43-12(e).
    III.
    A.
    “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)). Prosecutors
    9
    are tasked with making individualized assessments of each defendant,
    particularly his or her “amenability to correction” and likely “responsiveness
    to rehabilitation.” State v. Watkins, 
    193 N.J. 507
    , 520 (2008) (quoting
    N.J.S.A. 2C:43-12(b)(1)).
    Until recently, “[t]he assessment of a defendant’s suitability for PTI
    must be conducted under the Guidelines for PTI provided in Rule 3:28, along
    with consideration of factors listed in N.J.S.A. 2C:43-12(e).” Roseman, 221
    N.J. at 621. Following changes to Rule 3:28, however, the Guidelines were
    eliminated. Now, many of their prescriptions -- with significant variations --
    are contained in Rules 3:28-1 to -10. N.J.S.A. 2C:43-12(e) sets forth a list of
    seventeen nonexclusive factors that prosecutors must consider in connection
    with a PTI application. At the time defendant’s PTI application was denied,
    Guideline 3 to Rule 3:28 then included a list of eleven (later twelve)
    mandatory factors to be considered “in addition to” those enumerated in the
    statute. Of particular relevance here, Guideline 3(i) provided that “[a]
    defendant charged with a first or second degree offense or sale or dispensing
    of Schedule I or II narcotic drugs . . . 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.” Guideline 3(i) to Rule 3:28
    (2014). We note that there is no similar provision dealing with the sale of
    10
    narcotics in the post-amendment rules governing the Pretrial Intervention
    Program. “To overcome ‘the presumption against PTI, defendant must
    establish “compelling reasons” for admission’ to the program.” Watkins, 
    193 N.J. at 520
     (quoting Nwobu, 
    139 N.J. at 252
    ).
    “PTI is essentially an extension of the charging decision, therefore the
    decision to grant or deny PTI is a ‘quintessentially prosecutorial function.’”
    Roseman, 221 N.J. at 624 (quoting State v. Wallace, 
    146 N.J. 576
    , 582
    (1996)). “As a result, the prosecutor’s decision to accept or reject a
    defendant’s PTI application is entitled to a great deal of deference.” 
    Ibid.
     A
    court reviewing a prosecutor’s decision to deny PTI may overturn that decision
    only if the defendant “clearly and convincingly” establishes the decision was a
    “patent and gross abuse of discretion.” Wallace, 
    146 N.J. at 583
    .
    Ordinarily, an abuse of discretion will be manifest if
    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 judgement. 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.
    [Roseman, 221 N.J. at 625 (quoting State v. Bender, 
    80 N.J. 84
    , 93 (1979) (citation omitted)).]
    11
    When a defendant convincingly demonstrates a patent and gross abuse of
    discretion, a court may admit the defendant into PTI over the prosecutor’s
    objection. Id. at 624-25.
    In cases concerning legal error by the prosecutor, however, “there is a
    relatively low threshold for judicial intervention because ‘[t]hese instances
    raise issues akin to questions of law, concerning which courts should exercise
    independent judgment in fulfilling their responsibility to maintain the integrity
    and proper functioning of PTI as a whole.’” Watkins, 
    193 N.J. at 520-21
    (alteration in original) (quoting State v. Dalglish, 
    86 N.J. 503
    , 510 (1981)). In
    such cases, a remand to the prosecutor may be appropriate so she or he may
    rightly reconsider the application. Dalglish, 
    86 N.J. at 509-10
    .
    B.
    N.J.S.A. 2C:35-7(a) criminalizes “distributing, dispensing or possessing
    with intent to distribute a controlled dangerous substance . . . within 1,000 feet
    of . . . school property.” The statute is part of the Comprehensive Drug
    Reform Act of 1987 (CDRA), which “was designed to create a coordinated
    strategy to combat illegal drug use in New Jersey.” Caliguiri, 
    158 N.J. at
    37
    (citing W. Cary Edwards, An Overview of the Comprehensive Drug Reform
    Act of 1987, 
    13 Seton Hall Legis. J. 5
    , 5 (1989)). Although violators of
    N.J.S.A. 2C:35-7(a) are guilty of a third-degree crime -- which usually carries
    12
    a presumption of non-incarceration for first-time offenders, see N.J.S.A.
    2C:44-1(e) -- N.J.S.A. 2C:35-7(a) prescribes a mandatory-minimum sentence
    of one year of imprisonment for offenders caught possessing less than one
    ounce of marijuana and three years of imprisonment in all other cases. The
    severity of the penalty structure reflects the CDRA’s policy “to afford special
    protection to children from the perils of drug trafficking, to ensure that all
    schools and areas adjacent to schools are kept free from drug distribution
    activities, and to provide especially stern punishment for those drug offenders
    who operate on or near schools.” N.J.S.A. 2C:35-1.1(c).
    In Baynes, we recognized that “[t]he penalty structure for [violations of
    N.J.S.A. 2C:35-7] [wa]s similar to that for second-degree offenses for which
    admission to PTI is presumptively unavailable.” 
    148 N.J. at 449
    . And , in
    Caliguiri, we 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 our decision then 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). L. 2009, c. 192, § 1. Even though the mandatory minimums
    were maintained, N.J.S.A. 2C:35-7(b) now authorizes courts to “waive or
    13
    reduce the minimum term of parole ineligibility required under subsection a.,”
    or to “place the defendant on probation pursuant to paragraph (2) of subsection
    b.” Before waiving or reducing the period of parole ineligibility, courts must
    consider four enumerated factors:
    1. The extent and seriousness of the defendant’s criminal history,
    N.J.S.A. 2C:35-7(b)(1)(a);
    2. The proximity to school property and “the reasonable likelihood of
    exposing children to drug-related activities,” id. § 7(b)(1)(b);
    3. “[W]hether school was in session at the time of the offense,” id. §
    7(b)(1)(c); and
    4. “[W]hether children were present at or in the immediate vicinity” of
    the offense, id. § 7(b)(1)(d).
    N.J.S.A. 2C:35-7(b)(2) bars courts from waiving or reducing the minimum
    term of imprisonment, or imposing probation, if the offense occurred while on
    school property or involved the threat or use of violence or a firearm. N.J.S.A.
    2C:35-7(b)(2)(a)-(b).
    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
    14
    Legislature’s clear intent in amending N.J.S.A. 2C:35-7, we hold 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 the presumption against PTI for second-degree offenses, we believe it
    appropriate to remand defendant’s application to the prosecutor to reconsider
    defendant’s application. We disturb no other portion of Caliguiri.
    IV.
    Additionally, we find inapplicable 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). N.J.S.A. 2C:35-7(a) uses the terms “distribute” and “dispense”
    but does not use the term “sale.”
    A “sale” is “[t]he transfer of property or title for a price.” Black’s Law
    Dictionary 1454 (9th ed. 2009). Whereas “distribute” is broader and can mean
    “[t]o apportion,” “divide among several,” “spread out,” or “disperse.” Id. at
    543. As the Appellate Division noted in Coursey, “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.”
    445 N.J. Super. at 511 n.1. The Coursey panel concluded that “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
    15
    ‘subject by or pursuant to the lawful order of a practitioner’).” Id. at 510-11 &
    n.1.
    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.
    V.
    The record before us makes clear that the prosecutor faithfully
    considered the factors found in N.J.S.A. 2C:43-12(e)(1) to (17), finding
    several militated against acceptance of defendant’s application for PTI.
    Nevertheless, because the prosecutor considered two inapplicable
    presumptions found in then-Guideline 3(i), the decision to deny defendant’s
    application must be reevaluated. We reverse the judgment of the Appellate
    Division and remand to the prosecutor for a fresh review of defendant’s
    application and, if need be, to the trial court for appropriate action following
    the prosecutor’s review.
    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
    PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE
    TIMPONE’S opinion.
    16