IN THE MATTER OF THE CIVIL COMMITMENT OF T.R., SVP-704-14 (ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 24, 2017
• Docket: A-4986-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4896-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AUSTIN P. BACINO,

Defendant-Appellant. _____________________________

Submitted March 14, 2017 – Decided April 3, 2017

Before Judges Reisner and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-09-0926.

Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Austin P. Bacino appeals from his rejection from

the pre-trial intervention program (PTI). We remand this case to the PTI director and the prosecutor, to reconsider defendant's

application and render a written decision that considers

defendant's individual circumstances.

Defendant was indicted on charges of third-degree conspiracy

to distribute marijuana within 1000 feet of a school, N.J.S.A.

2C:5-2(a)(1) and N.J.S.A. 2C:35-7.1, and fourth-degree conspiracy

to distribute less than an ounce of marijuana, N.J.S.A. 2C:5-

2(a)(1) and N.J.S.A. 2C:35-5(a)(1). He was also charged with two

disorderly persons offenses - loitering and violating a municipal

ordinance. The PTI director rejected defendant's application on

October 24, 2014. The director's statement of reasons relied

exclusively on the fact that defendant was charged with school

zone drug distribution, which was "part of a criminal

business/enterprise." The statement noted that defendant's arrest

resulted from a lengthy investigation by law enforcement, and that

the execution of a search warrant revealed drug paraphernalia.

The prosecutor did not issue a separate decision.

In his PTI appeal to the Law Division judge, defendant pointed

out that the rejection decision did not acknowledge that the search

related to premises owned by an older adult who was apparently the

ringleader in a drug distribution operation, and that defendant

did not live on the premises and was not arrested there. He also

contended that the statement did not consider that defendant was

2 A-4896-14T3 not charged with school zone drug distribution but rather with

conspiracy. Defendant further argued that the PTI director did

not take into account his individual characteristics, including

his relative youth at age twenty-one, the influence of his older

co-defendants, his lack of an adult criminal record, the fact that

the crime was non-violent, and that he was amenable to

rehabilitation through PTI.

In response, the prosecutor's office submitted a letter

focusing on the culpability of Mr. and Mrs. Gregory, the couple

who were apparently the main targets of the police investigation

and who owned the premises that were the subject of the search

warrant. However, the letter also cited evidence, albeit of

uncharged allegations, supporting a conclusion that defendant was

selling marijuana supplied by Mr. and Mrs. Gregory or their

associates. The State contended that his participation in a

criminal business enterprise sufficed to warrant his rejection

from PTI.

The letter also baldly asserted, without citing any specifics

or analysis, that the PTI director must have considered

"defendant's age, employment status, education, and lack of

criminal record." The prosecutor offered no separate analysis or

indication that the prosecutor had considered those factors. The

letter did not even proffer an argument as to why defendant's

3 A-4896-14T3 individual characteristics did not outweigh the seriousness of the

crime with which he was charged.

At oral argument of the PTI appeal, the prosecutor conceded

that the director's decision was inartfully worded. The prosecutor

argued that in substance, the decision was adequate, but suggested

that if the judge believed that it was insufficient, the court

"could certainly remand it to criminal case management." In an

oral statement of reasons, the judge determined that it was not a

gross and patent abuse of discretion for the PTI director to rely

exclusively on defendant's participation in a criminal business

enterprise. Thereafter, defendant entered into a plea agreement,

pled guilty to fourth-degree conspiracy to possess marijuana with

intent to distribute, and was sentenced to a year of probation.

On this appeal, our review is limited. If a prosecutor's

decision evinces consideration of all appropriate factors, it will

not be disturbed absent a showing that it was a gross and patent

abuse of discretion. State v. K.S., 220 N.J. 190, 200 (2015).

However, if the prosecutor - or the program director, on whose

decision the prosecutor relies - fails to consider all relevant

factors, a remand is appropriate. Ibid.

Having reviewed the record, we conclude that remand is

required. We acknowledge that the PTI Guidelines, Guideline

3(i)(2), provides that if a defendant is charged with a crime that

4 A-4896-14T3 was "part of a continuing criminal business or enterprise" his or

her "application should generally be rejected." However, such a

defendant is still entitled to "present facts” demonstrating his

or her "amenability to the rehabilitative process, showing

compelling reasons justifying the applicant's admission and

establishing that a decision against enrollment would be arbitrary

and unreasonable." Ibid. Moreover, "the program director and

prosecutor 'must actually consider the merits of the defendant's

application.'" K.S., supra, 220 N.J. at 198 (quoting State v.

Green, 413 N.J. Super. 556, 561 (App. Div. 2010)).

We further acknowledge that, "[a]bsent evidence to the

contrary, a reviewing court must assume that all relevant factors

were considered by the prosecutor's office." State v. Baynes, 148

N.J. 434, 444 (1997). However, on this record, we can fairly

infer that no consideration was given to any factor other than

defendant's alleged participation in the Gregory family's ongoing

criminal business. Because neither the PTI director nor the

prosecutor gave any consideration to defendant's individual

characteristics, or the list of factors set forth in N.J.S.A.

2C:43-12(e), which "[p]rosecutors and program directors shall

consider" in making a PTI recommendation, defendant was not given

a meaningful opportunity to meet his burden. See K.S., supra, 220

N.J. at 198.

5 A-4896-14T3 As in State v. Caliguiri, 158 N.J. 28 (1999), such a one-

sided evaluation of the PTI application warrants a remand:

The school zone statute creates the presumption against PTI, and cannot also provide the reason Caliguiri fails to overcome that presumption. To endorse the State's position would effectively create a de facto rule against PTI for N.J.S.A. 2C:35-7 offenders. Rejection based solely on the nature of the offense is appropriate only if the offender fails to rebut the presumption against diversion.

A remand is appropriate because the prosecutor failed to consider all the relevant factors. Caliguiri's application was rejected solely because he committed a school zone offense.

[Id. at 43-44.]

Accordingly, we remand defendant's PTI application to the

director for reconsideration, to be followed by evaluation and

reconsideration by the prosecutor. We imply no view as to whether

defendant should be admitted to PTI, but only that the director

must consider the information defendant submits and render a

written decision evincing that consideration. Thereafter, the

prosecutor must either issue a separate written decision or a

letter indicating reliance on the director's decision. Defendant

will have the right to appeal to the Law Division if he is again

rejected from PTI.

Remanded. We do not retain jurisdiction.

6 A-4896-14T3