STATE OF NEW JERSEY v. L.M., Defendant-Appellant. (2011)

Defendant L.M. appeals from his sentence and from an order that denied his application for admission into the pretrial intervention program (PTI) over the objection of the prosecutor.   For the reasons that follow, we affirm the denial of his admission into PTI, reverse his sentence and remand.

In April 2009, defendant, a pharmacist, was indicted on two counts of second-degree distribution of prescription legend drugs, N.J.S.A. 2C:35-10.5a(4).   These charges arose from two separate sales.   On October 1, 2007, defendant sold one hundred Aricept pills, two hundred Avadart pills, three hundred Flomax pills and twenty-seven Zyrtec pills to a witness cooperating with authorities, for $1,014 in cash.   On October 30, 2007, defendant again met with the cooperating witness and sold him three hundred Flomax pills, three hundred Singulair pills, three hundred Cozair pills, three hundred Detradia pills, two hundred Nexium pills, one hundred Plavix pills, one hundred Euista pills, and sixty Zegerid pills for $3,400.

Defendant applied for admission into PTI in May 2009.   His application was denied by both the Bergen County Criminal Division Manager and the Bergen County Prosecutor.   The prosecutor's letter denying his application set forth the following analysis of factors and conclusion:

In making our determination as to defendant's amenability to diversionary treatment, we have considered the following factors:

The facts of the case.  (N.J.S.A. 2C:43-12e(2)).   Defendant was engaged in the black market sale of prescription legend drugs.   On two occasions, Detectives observed defendant participate in covert meetings with the [cooperating witness] in parking lots.   The pills were repackaged in plastic bags and secured within gift wrapped boxes to conceal the items from law enforcement detection.   The actions of [defendant] clearly demonstrate a certain level of thought and planning underlying these transactions.

The motivation and age of the defendant.  (N.J.S.A. 2C:43-12e(3)).   Defendant was 73 years old at the time he performed these illegal drug transactions and committed the instant acts for money.

The crime constitutes part of a continuing pattern of defendant's anti-social behavior.  (N.J.S.A. 2C:43-12e(8)).   Defendant engaged in two separate illegal transactions involving the sale of black market pharmaceutical drugs which involved pre-planning.   Several conversations preceded these transactions and defendant also exchanged a fax detailing the prescription drugs that he had available for sale.   Defendant also repackaged the pills in plastic bags which he placed inside a box that was later gift wrapped to avoid suspicion from law enforcement.   The charges contained in this indictment do not represent an isolated incident.

The harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.  (N.J.S.A. 2C:43-12e(17)).   Our legislature has recognized the escalating problem of black market distribution of pharmaceutical drugs and enacted legislation to elevate the distribution of 100 or more dosage units to a second degree crime.   To permit defendant to enter PTI would violate the PTI Guidelines as they relate to crimes that carry the presumption of incarceration.

Based upon my review of the defendant's case file and the supplemental information I have received from your office, I have determined that the early rehabilitative services and minimal supervisory treatment offered by the Pretrial Intervention Program could not reasonably be expected to deter future criminal behavior by the defendant or serve the interests of the State of New Jersey.   Accordingly, the State hereby opposes defendant's application for admission to the Pretrial Intervention and joins the May 26, 2009 denial by the Program Director.

Defendant appealed the prosecutor's rejection of his application.   After considering oral argument and the parties' submissions, the trial court concluded that defendant had failed to demonstrate by clear and convincing evidence that the prosecutor's decision constituted a patent and gross abuse of discretion and denied his appeal.

Defendant pled guilty pursuant to a plea agreement to one count of distribution of prescription legend drugs, N.J.S.A. 2C:35-10.5a(3), which was amended from a second-degree to a third-degree charge.   As part of the plea agreement, the prosecutor agreed to dismiss the remaining second-degree count and to recommend a maximum sentence of three hundred sixty-four days in the county jail as a condition of probation.   The court sentenced defendant to probation for a term of two years with the condition that he serve three hundred sixty-four days in the county jail, and appropriate fines and penalties.   Defendant was released on bail pending appeal.

In this appeal, defendant presents the following issues for our consideration:

POINT I

THE TRIAL COURT ERRED BY NOT ORDERING [DEFENDANT'S] ADMISSION INTO PTI AFTER IT RELIED ON INAPPROPRIATE FACTORS AND APPLIED THE WRONG STANDARD IN ANALYZING THE IMPACT OF THE PTI GUIDELINES WHEN A PROPER ANALYSIS WOULD HAVE REVEALED THAT THE REJECTION OF [DEFENDANT'S] PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION

POINT II

APPLICATION OF THE FACTS OF [DEFENDANT'S] SITUATION TO THE STATUTORY CRITERIA FOR PTI ADMISSION REVEALS THAT [DEFENDANT] IS AN IDEAL CANDIDATE FOR PTI

POINT III

[DEFENDANT'S] SENTENCE IS EXCESSIVE BECAUSE IT IS PREMISED ON AGGRAVATING FACTORS THAT ARE[ ]NOT SUPPORTED BY THE RECORD AND THE FAILURE TO FIND MITIGATING FACTORS THAT ARE SUPPORTED BY THE RECORD

After carefully considering the record, briefs and arguments of counsel, we are satisfied that the arguments raised in Points I and II lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

Prosecutors are granted “wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial,” State v. Negran, 178 N.J. 73, 82 (2003), and the prosecutor's decision is accorded an enhanced level of deference.  State v. Baynes, 148 N.J. 434, 443-44 (1997);  State v. DeMarco, 107 N.J. 562, 566 (1987);  State v. Kraft, 265 N.J.Super. 106, 111 (App.Div.1993).   In short, it is expected that a prosecutor's decision to reject a PTI applicant “will rarely be overturned.”  State v. Wallace, 146 N.J. 576, 585 (1996) (quoting State v. Leonardis, 73 N.J. 360, 380 (1977) (Leonardis II )).   The defendant who seeks to overcome a prosecutor's rejection of his admission into PTI must satisfy the heavy burden of showing clearly and convincingly that the prosecutor's decision constitutes a patent and gross abuse of discretion.  Negran, supra, 178 N.J. at 82;  State v. Nwobu, 139 N.J. 236, 246 (1995) (citations omitted).   To warrant judicial intervention, the prosecutor's consideration must amount to a “clear error in judgment” that “subvert[s] the goals underlying pretrial intervention.”   Negran, supra, 178 N.J. at 83;  Flagg v. Essex County Prosecutor, 171 N.J. 561, 572 (2002);  State v. Caliguiri, 158 N.J. 28, 37 (1999);  State v. Bender, 80 N.J. 84, 93 (1979).

Defendant was charged with two second-degree offenses.   Although that fact alone will not render him ineligible for PTI, the seriousness of such offenses will generally militate against acceptance into PTI. “A defendant charged with a first or second degree offense ․ should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor.”   Guidelines for Operation of Pretrial Intervention in New Jersey, Pressler and Verniero, Current N.J. Court Rules, Guideline 3(i) at 1082 (2011).   In the absence of a joint application here, we are satisfied that the prosecutor's decision did not constitute a patent and gross abuse of discretion.

We next turn to a review of defendant's sentence.   The standard of review is one of deference.   Even if the appellate court would have reached a different result, it must affirm a sentence “as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.”  State v. O'Donnell, 117 N.J. 210, 215 (1989).   To be accorded such deference, the sentencing court is required to “identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence.”  Ibid.;  State v. M.A., 402 N.J.Super. 353, 370 (App.Div.2008);  N.J.S.A. 2C:43-2(e);  R. 3:21-4(g).  Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to “take into account a mitigating factor that is fully supported by the evidence,” but “must [include such factor as] part of the deliberative process.”  State v. Dalziel, 182 N.J. 494, 505 (2005).

The trial court found that aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense), and (9) (need to deter defendant and others), applied.   The court also found the following mitigating factors:  N.J.S.A. 2C:44-1(b)(7) (no history of prior criminal activity), and (10) (defendant is particularly likely to respond affirmatively to probationary treatment).   Defendant argues that the court erred in finding these aggravating factors and in failing to find the following mitigating factors:  N.J.S.A. 2C:44-1(b)(1) (defendant's conduct neither caused nor threatened serious harm);  (2) (defendant did not contemplate serious harm);  (4) (substantial grounds tending to excuse or justify the defendant's conduct);  (5) (victim induced or facilitated its commission);  (6) (defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service);  (8) (circumstances unlikely to recur);  (9) (defendant unlikely to commit another offense);  (11) (excessive hardship);  and (12) (willingness to cooperate with law enforcement authorities).

We are satisfied that there was adequate support in the record for the trial court's finding of aggravating factors (3) and (9) and that the court did not abuse its discretion in declining to find mitigating factors (1), (2), (5) and (11) applicable.

In addressing the aggravating and mitigating factors, the court must engage in a qualitative weighing process, evaluating each of the aggravating and mitigating factors and explaining that evaluation on the record in sufficient detail to permit appellate review.  State v. Towey (I), 114 N.J. 69, 84 (1989);  State v. Roth, 95 N.J. 334, 368 (1984).   However, the court gave no explanation for its rejection of mitigating factors (8) and (12) and did not address the applicability of mitigating factors (4), (6) or (9).

Although the record does not support a finding that there were substantial grounds tending to excuse or justify defendant's conduct, N.J.S.A. 2C:44-1(b)(4), the record does provide a basis for consideration of mitigating factor (12).   It is undisputed that defendant was willing to cooperate with law enforcement authorities.   He met with authorities, provided information about his source for the prescription legend drugs that were illegally diverted, and attempted to arrange a controlled buy that was thwarted only due to the reluctance of the source as opposed to any unwillingness on the part of the defendant.

The willingness of the defendant to cooperate with law enforcement authorities is “a strong mitigating factor” that should have been considered by the trial judge.  Dalziel, supra, 182 N.J. at 505 (quoting State v. Henry, 323 N.J.Super. 157, 166 (App.Div.1999)).   Although defendant's willingness to cooperate did not lead to additional prosecutions, the fact of his willingness remains in the record, and cannot be ignored.   The fact that his cooperation had limited value to the State relates only to the weight to be given to that factor;  it does not justify ignoring his willingness to cooperate.   See Dalziel, supra, 182 N.J. at 505-06.   Accordingly, we find the court's rejection of this factor without comment to be an abuse of discretion, warranting a remand for resentencing.

Further, in light of the court's view that an alternative to jail might be appropriate here,¹ the suitability of a program of community service, N.J.S.A. 2C:44-1(b)(6), should be considered on remand.   The trial court should also consider mitigating factors (8) and (9), see State v. Pavin, 202 N.J.Super. 255, 267 (App.Div.1985) (good character and attitudes are a basis for finding mitigating factor (9)) and, if a factual basis for (8) and (9) is found, such factors should be weighed against aggravating factor (3)).   See State v. Towey (II), 244 N.J.Super. 582, 593 (App.Div.), certif. denied, 122 N.J. 159 (1990).

Upon resentencing, all current information relevant to an appropriate appraisal of the factors should be considered.  State v. Jarbath, 114 N.J. 394, 409-11 (1989);  Towey (II), supra, 244 N.J.Super. at 593-94.   This would, of course, include defendant's current age and other personal information including information relevant to such factors as attitude and character.

The order denying defendant's appeal from the State's rejection of his PTI application is affirmed.   We reverse his sentence and remand for further proceedings consistent with this opinion.

FOOTNOTES

FN1. We note that the court considered home confinement as opposed to jail time as a condition of probation but had been advised by “the individuals at the jail who are responsible for the ankle bracelet program” that the program was not available for a defendant convicted of drug distribution.   The court indicated its willingness to stay the sentence so that defense counsel could explore that issue, but the record does not reflect whether that option was explored, whether the information provided by “the individuals at the jail” applied to this defendant, or whether the court considered any other alternative to jail that would adequately serve as a restriction on defendant's liberty..  FN1. We note that the court considered home confinement as opposed to jail time as a condition of probation but had been advised by “the individuals at the jail who are responsible for the ankle bracelet program” that the program was not available for a defendant convicted of drug distribution.   The court indicated its willingness to stay the sentence so that defense counsel could explore that issue, but the record does not reflect whether that option was explored, whether the information provided by “the individuals at the jail” applied to this defendant, or whether the court considered any other alternative to jail that would adequately serve as a restriction on defendant's liberty.

PER CURIAM