STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COREY SAUNDERS, a/k/a
COREY SANDERS,
Defendant-Appellant.
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Submitted September 1, 2015 – Decided
Before Judges St. John and Manahan.
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 briefs).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and
on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Defendant was charged in a
thirteen count indictment with offenses related to the possession and distribution
of a controlled dangerous substance (CDS).
On April 24, 2013, defendant applied for admission into the pre-trial
intervention program (PTI). Although the
PTI Director recommended admission, the prosecutor refused to consent to
PTI.
In reaching his
decision, the prosecutor relied largely on a survey of defendant's juvenile
arrest record. Specifically, the prosecutor
considered: a 2005 adjudication for armed robbery; a dismissed 2005 charge for
possession; a 2008 adjudication for a CDS offense; a dismissed 2009 charge for
robbery; a 2010 curfew violation; a 2011 violation of a municipal ordinance; a
dismissed 2011 charge for assault; a 2011 conviction for resisting arrest; a
dismissed 2012 charge for drinking in public; and a dismissed 2012 charge for
obstructing justice. From this history,
the prosecutor concluded that the defendant's "course of conduct . . .
reeks of anti-social behavior," and withheld his consent to PTI.
On October 24,
2013, the trial judge affirmed the rejection, noting "this defendant does
seem to have been unable to refrain from anti-social delinquent, and or,
criminal conduct as evidenced . . . if from nothing else than his
record." This appeal followed.
On
appeal, defendant presents the following issues for our consideration:
POINT I
THE PROSECUTOR'S REJECTION OF DEFENDANT'S
ADMISSION INTO PRETRIAL INTERVENTION IS A PATENT AND GROSS ABUSE OF DISCRETION
THAT CLEARLY SUBVERTED THE GOALS UNDERLYING PTI, WHICH MUST BE CORRECTED BY
THIS COURT.
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. The
prosecutor improperly inferred Saunders' guilt of dismissed charges, which led
him to wrongly find that the present allegations were part of a continuing
pattern of antisocial behavior.
2. The
prosecutor 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
prosecutor simply listed "the facts of the case" and "the nature
of the case" as reasons to deny admission, but they actually inure in
Saunders' favor.
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 ADHD,
learning disabilities, and trauma from a very young age, and that he responded
favorably to juvenile probation.
POINT II
BECAUSE THE 20-YEAR-OLD DEFENDANT HAD NO PRIOR
INDICTABLE CONVICTIONS AND WAS AMENABLE TO REHABILITATION THROUGH PROBATION,
AND BECAUSE THE JUDGE ERRED IN IMPOSING THE DISCRETIONARY SCHOOL-ZONE PAROLE
DISQUALIFIER, THE SENTENCE IS EXCESSIVE.
A. The
judge erred in his application of the aggravating and mitigating factors, and
erroneously believed he was unable to sentence below a four-year base term.
B. The
judge erred in his analysis of whether to impose a parole disqualifier.
For the following
reasons, we conclude that defendant's rejection from PTI was based on
inappropriate factors and remand this case for reconsideration of defendant's
application.
In
the time between defendant's rejection from PTI, and this decision, the Supreme
Court held that it is improper to rely upon previously dismissed charges alone
as evidence in support of a "continuing pattern of anti-social
behavior." State v. K.S.,
220 N.J. 190, 201-02 (2015); N.J.S.A. 2C:43-12(e)(8). In that case, the Court determined that a
prosecutor could no longer consider arrests resulting in diversion or dismissal
to bar a defendant's admission into PTI. K.S., supra, 220 N.J. at
202. While acknowledging a prosecutor's
"broad discretion to determine if a defendant should be diverted,"
the Court nonetheless concluded that prior dismissed charges may not be
included in the evaluation of a PTI application. Id. at 199-200, 202.
In
the present case, the prosecutor did not rely solely on dismissed charges to
justify his finding of continuing antisocial behavior. However, dismissed charges constituted a
sufficiently prominent part of the prosecutor's reasoning to call into question
his conclusion.
In K.S.,
the Court reiterated that, "[w]hen a reviewing court determines that the
'prosecutor's decision was arbitrary, irrational, or otherwise an abuse of
discretion, but not a patent and gross abuse of discretion,' the reviewing
court may remand to the prosecutor for further consideration." Ibid. at 200 (quoting State v.
Dalglish, 86 N.J. 503, 509 (1981)). Accordingly, we vacate the trial court's order
rejecting defendant from PTI and remand the matter to the prosecutor for
further consideration in light of K.S.
Remanded. We do not retain jurisdiction.
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