STATE OF NEW JERSEY VS. COREY SAUNDERS (13-06-0852, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2623-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY SAUNDERS, a/k/a
COREY SANDERS,
Defendant-Appellant.
____________________________________
Submitted January 10, 2018 – Decided October 17, 2018
Before Judges Fuentes and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-06-
0852.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lauren S. Michaels, Assistant Deputy Public
Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
A Middlesex County grand jury returned an indictment against defendant
Corey Saunders, charging him with three counts of third degree possession of
cocaine, N.J.S.A. 2C:35-10(a)(1); three counts of third degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1); three counts of third
degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3); three counts of third
degree possession of cocaine with intent to distribute or distributing cocaine
within 1000 feet of a school, N.J.S.A. 2C:35-7; and one count of second degree
distribution of cocaine to an undercover police officer within 500 feet of a public
housing complex, N.J.S.A. 2C:35-7.1.1
On October 25, 2013, defendant entered into a negotiated agreement with
the State, through which he pled guilty to one count of third degree distribution
of cocaine to an undercover police officer, within 1000 feet of a school. In
exchange, the State agreed to dismiss the remaining counts in the indictment and
recommended that the court sentence defendant to a four-year term of
imprisonment, with eighteen months of parole ineligibility. On March 11, 2014,
the trial judge sentenced defendant consistent with the terms of the plea
1
The first indictment charged defendant with committing only twelve third
degree drug-related offenses. The State thereafter obtained a superseding
indictment that added the second degree offense under N.J.S.A. 2C:35-7.1.
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agreement. Defendant appeals from the order of the Criminal Part that upheld
the decision of the Middlesex County Prosecutor's Office (MCPO) to deny his
application for admission into the pre-trial intervention (PTI) program. This is
the second time defendant has brought this issue before this court. In the first
appeal, defendant argued, inter alia, that the MCPO improperly considered and
relied on prior dismissed charges "to wrongly find that the present allegations
were part of a continuing pattern of antisocial behavior." State v. Corey
Saunders, No. A-4460-13 (App. Div. September 22, 2015) (slip op. at 2).
In response to this particular argument, this court noted that at the time
the MCPO rejected defendant's PTI application, our Supreme Court had not yet
decided State v. K.S., 220 N.J. 190 (2015). Id. at 4. In K.S., the Court
considered "whether it was proper for the Somerset County Prosecutor to rely
upon adult criminal charges that had been dismissed and juvenile charges of
possession of a weapon, assault, fighting, and harassment that had been diverted
and dismissed in rejecting defendant's application for admission into [the PTI
program]." 220 N.J. at 193.
After a careful review of the salient facts of the case, the eligibility factors
codified in N.J.S.A. 2C:43-12(e), and the guidelines in Rule 3:28, the Court in
K.S. held "it is improper to rely upon previously dismissed charges alone as
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evidence in support of a 'continuing pattern of anti-social behavior.'" Saunders,
slip op. at 4 (quoting K.S., 220 N.J. at 201-02). Although we acknowledged that
the prosecutor "did not rely solely on dismissed charges to justify his finding of
continuing antisocial behavior . . . [,]" the record showed that the "dismissed
charges constituted a sufficiently prominent part of the prosecutor's reasoning
to call into question his conclusion." Saunders, slip op. at 4. We thus vacated
the trial court's order that upheld the prosecutor's rejection of defendant's
application for admission into PTI and remanded the matter "to the prosecutor
for further consideration in light of K.S." Ibid.
The MCPO responded to this court's remand order in a letter dated
October 21, 2015, addressed to the trial judge assigned to decide defendant's
challenge to the prosecutor's rejection of his application for admission into PTI.2
In a comprehensive, well-reasoned analysis, the prosecutor described the
evidence that supports the charges against defendant. According to a
certification submitted by an MCPO investigator, on three separate occasions
between February 17, 2012 and February 24, 2012, defendant sold a quantity of
cocaine to an undercover law enforcement officer. Defendant made these three
2
Pursuant to Rule 3:28(a): "Each Assignment Judge shall designate a judge or
judges to act on matters pertaining to pretrial intervention programs in the
vicinage in accordance with N.J.S.A. 2C:43-12 and 13."
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illicit transactions within 1000 feet of two elementary schools. Although legally
irrelevant under N.J.S.A. 2C:35-7(d), the prosecutor noted that when one of the
three alleged illicit transactions occurred, one of the schools was not in session
due to a legal holiday. The schools were in session, however, when defendant
allegedly sold cocaine to the undercover officer on two other separate occasions.
Finally, the investigator emphasized that the location defendant selected to
engage in these illicit activities is frequently used by the children "as a major
route to walk to and from … school."
The prosecutor again denied defendant's PTI application. This time, the
prosecutor emphasized that his decision to reject defendant's application was not
influenced by any prior criminal charges that did not result in a conviction or
juvenile complaints that did not result in an adjudication of delinquency. The
prosecutor claimed his decision was strictly based on the criteria codified in
N.J.S.A. 2C:43-12(e). The following analysis of N.J.S.A. 2C:43-12(e)(14)
reflects the prosecutor's overall assessment of defendant's suitability for
admission into PTI:
The State contends that there is no proper "supervisory
treatment" in this particular case for this defendant. His
ready access to drugs and lack of consideration for
whom he sells the drugs to or where he sells the drugs
at are indicative of the fact that he cares not for the
consequences of his actions. He will sell to people he
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does not know and has met for the first time on three
(3) separate occasions. [sic] The fact that this individual
does not care about the consequences of his actions
makes "supervisory treatment" inapplicable in this
case. Upon the direction of the Appellate Division to
re-evaluate our position, a review of this factor
[N.J.S.A. 2C:43-12(e)(14)] weighs against admitting
this defendant into PTI.
The judge assigned to review the prosecutor's rejection of defendant's PTI
application reached a similar conclusion. Defendant was nineteen years old at
the time he was selling cocaine to undercover police officers. The judge found
defendant "used marijuana every day" and was taking opioid-based medication.
Defendant was adjudicated delinquent on the charge of armed robbery with a
knife when he was merely twelve years old. Based on the seriousness of the
charges listed in the indictment, the judge found "the prosecutor has not abused
his discretion" when he decided to reject defendant's application for admission
into PTI.
Against this record, defendant now appeals raising the following
arguments.
POINT I
AFTER BEING ORDERED BY THIS COURT TO
RECONSIDER SAUNDERS' PTI APPLICATION,
THE PROSECUTOR STOOD BY HIS INITIAL
DECISION TO REJECT SAUNDERS DESPITE THE
PROGRAM DIRECTOR'S RECOMMENDATION
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FOR ADMISSION AND SAUNDERS' CLEAR
SUITABILITY FOR PARTICIPATION IN A
SUPERVISORY PROGRAM. THE PROSECUTOR'S
DECISION CONSTITUTED A PATENT AND
GROSS ABUSE OF DISCRETION THAT CLEARLY
SUBVERTED THE GOALS UNDERLYING PTI,
AND MUST BE REVERSED.
A. The prosecutor's rejection was not premised on a
consideration of all relevant factors, and was based on
a consideration of irrelevant or inappropriate factors.
1. Although he was ordered to reconsider
Saunders' application without the
dismissed charges, it is evident that the
prosecutor did not actually reconsider the
application, but instead simply removed
the references to the dismissed charges. As
a result, the prosecutor again wrongly
found that the present allegations were part
of a continuing pattern of antisocial
behavior.
2. The prosecutor again incorrectly
determined that Saunders was dangerous
and had a violent history, and that selling
drugs near school property, with no
children around, "displays injurious
consequence to innocent children."
3. "The facts of the case" and "the nature
of the case" actually inure in Saunders'
favor.
4. In a case involving unremarkable
controlled buys in which no one was
injured or threatened it was improper for
the prosecutor to consider the opinion of a
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police officer as a stand in for a "victim" to
deny Saunders the opportunity to enter
PTI.
5. The prosecutor improperly denied the
application because of Saunders' alleged
involvement in organized criminal activity,
based on the conclusion that this applies to
any drug sale.
6. The prosecutor's rejection of Saunders
based on a vague allegation that he was
"associate[ed] [sic] with known gang
members" was a gross and patent abuse of
discretion.
7. The prosecutor's baseless conclusion
that Saunders was motivated "solely by
profit" in the face of undisputed evidence
was a gross and patent abuse of discretion.
B. The prosecutor failed to conduct an individualized
assessment, improperly found that Saunders did not
respond positively to rehabilitative efforts to address
his personal problems, and insinuated that his
documented disabilities were unproven. This was a
clear error in judgment because it is undisputed that
Saunders has struggled with learning disability [sic],
delays, and ADHD, as well as trauma, from a very
young age, [and] that he responded favorably to
juvenile probation, and he is young.
We reject these arguments and affirm. In order for a trial judge to admit
a defendant into PTI over the prosecutor's objection, the judge must find the
prosecutor's decision constituted "a patent and gross abuse of discretion." State
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v. Roseman, 221 N.J. 611, 625 (2015). "The purpose of the PTI Program is to
provide the opportunity to certain defendants to avoid the traditional
prosecutorial route by receiving rehabilitative services." State v. Rizzitello, 447
N.J. Super 301, 310-11 (App. Div. 2016) (citing Guideline 1 to Rule 3:28). This
diversionary program is predicated on the prosecutor's discretionary authority
to determine whether there is sufficient evidence to charge an individual with a
criminal offense. Thus, "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)).
Here, defendant was charged with selling cocaine to an undercover law
enforcement officer, on three separate occasions and within 1000 feet of two
elementary schools. These are not isolated incidents. This is evidence of a
pattern of criminal activity that involves the distribution and acquisition of
quantities of a highly addictive illicit narcotic. The State presented strong
evidence of defendant's guilt. If convicted after a trial, defendant was facing an
aggregate sentence of fifteen years imprisonment, with nine years of parole
ineligibility. See N.J.S.A. 2C:35-7.
The prosecutor's statement of reasons in response to our remand order
addressed every factor codified in N.J.S.A. 2C:43-12(e). We discern no legal
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basis to disturb the trial judge's findings and ultimate decision to uphold the
prosecutor's rejection of defendant's application for admission into PTI.
Affirmed.
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