STATE OF NEW JERSEY,
COREY SAUNDERS, a/k/a
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NOT FOR PUBLICATION WITHOUT THE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
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:
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.
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.