State of New Jersey v. Matthew E. Hussey

• Court: New Jersey Superior Court Appellate Division
• Decided: April 5, 2024
• Docket: A-0266-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0266-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW E. HUSSEY,

Defendant-Appellant. _______________________

Submitted January 16, 2024 – Decided April 5, 2024

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No: 21-05- 0290.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the briefs).

Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica Lucinda Do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Matthew Hussey appeals from the Law Division's August 26,

2022 order denying his motion for admission into the pre-trial intervention

program (PTI) after being rejected by the Monmouth County Prosecutor's Office

(Prosecutor's Office). We affirm.

I.

We derive the following facts from the motion record. In July 2019,

defendant and his friend drove from New York to Asbury Park to attend a

concert. Upon arriving in Asbury Park, defendant parked his car, and the two

began drinking alcohol. Shortly thereafter, Asbury Park police received a report

that two "teenagers" were drinking alcohol in a gray car with a New York license

plate near 510 Monroe Avenue.

Officer James Crawford was dispatched to investigate the report. Upon

arrival, he observed a car matching the report's description and a young male

exiting the driver's side of the car, later identified as defendant. As Crawford

approached the car and began speaking with defendant, he observed a young

male in the passenger seat "moving around inside of the car." The passenger

then exited the passenger's side of the car with a can in his hand. Crawford

walked around to the passenger's side of the car and saw an alcoholic beverage

can rolling away from the passenger and spilling liquid onto the ground.

A-0266-22 2 Crawford asked both young males for their identification to determine if

they were of legal drinking age, which revealed that both males were under the

age of twenty-one. Crawford then searched the car for additional alcohol.

Crawford saw a black tote bag on the floor of the car, believing that it contained

more alcohol; however, the search was fruitless. He observed the center console

was "ajar" and possibly contained alcohol. Immediately upon opening the center

console, he saw a grinder, a scale, and rolling papers. As Crawford removed the

scale, he saw a clear plastic bag with a tin foil fold inside of the scale. When

asked what was inside the tin foil, defendant replied that it was "acid," the street

name for hallucinogen lysergic acid diethylamide (LSD). According to

Crawford, the passenger seemed surprised.

As Crawford continued to remove the remaining items from the center

console, he also observed a pink zip-loc bag. When Crawford asked what was

inside the bag, defendant replied, "I think that's ecstasy." Crawford opened the

pink bag and saw a clear plastic baggie with money signs on the outside and a

brownish crystalline substance "suspected" to be ecstasy or "molly" on the

inside. During the search of the car, Crawford also found an open and partially

consumed clear glass bottle of rum behind the passenger's seat.

A-0266-22 3 Crawford radioed for additional police officers. While waiting for

"backup" to arrive, defendant began asking Crawford questions. After a

moment, defendant said, "well, it's mine," referring to the items found in the

center console. Defendant was placed under arrest and he was searched.

Crawford found a "fake" Delaware identification in defendant's wallet. When

Officer Yannazzone arrived, he escorted defendant to Crawford's patrol car.

Crawford completed searching defendant's car and found a "small amount" of

marijuana in the pocket of the driver's door and a silver flask containing liquid

that smelled like alcohol. Crawford secured those items in his police car.

As Crawford was walking back towards defendant's car, Yannazzone was

standing near the front passenger door when he observed a plastic vacuum sealed

bag "sticking out," "possibly" filled with psilocybin mushrooms from under the

passenger's seat. Crawford also secured this item in his patrol car. While sitting

in the back of Crawford's patrol car, defendant stated: "Now you guys are going

to think I'm selling drugs."

A grand jury indicted defendant on charges of third-degree possession of

LSD, N.J.S.A. 2C:35-10(a)(1); first-degree possession of LSD with intent to

distribute, N.J.S.A. 2C:35-5(b)(6); third-degree possession of LSD with intent

to distribute on or within 1,000 feet of school property, N.J.S.A. 2C:35-7;

A-0266-22 4 second-degree possession of LSD with intent to distribute while on or within

500 feet of a public park, N.J.S.A. 2C:35-7.1; third-degree possession of

psilocybin mushrooms, N.J.S.A. 2C:35-10(a)(1); third-degree possession of

psilocybin mushrooms with intent to distribute, N.J.S.A. 2C:35-5(b)(13); third-

degree possession of psilocybin mushrooms with intent to distribute on or within

1,000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of

psilocybin mushrooms with intent to distribute while on or within 500 feet of a

public park, N.J.S.A. 2C:35-7.1; third-degree possession of ecstasy, N.J.S.A.

2C:35-10(a)(1); and fourth-degree possession of a simulated document, N.J.S.A.

2C:21-2.1(d).

In July 2021, defendant applied for admission to the PTI program. In his

application, defendant acknowledged that he was charged with "a crime(s) that

has a presumption of incarceration or a mandatory minimum period of parole

ineligibility." Defendant asserted: "The fact that the [p]rosecutor [was] only

looking for probation and [was] not looking for a plea on the [first-]degree

[charge] is a compelling reason to justify consideration of defendant's PT I

application despite one charge being in the first[-]degree range."

On August 6, 2021, in a comprehensive letter, the Prosecutor's Office

notified defendant that it "declined to consent" to defendant's admission into the

A-0266-22 5 PTI program. It explained that defendant offered "nothing" other than the

negotiated plea offer for noncustodial probation which did not establish

extraordinary and compelling circumstances to overcome the "heavy"

presumption against PTI admission. Relying upon State v. Nwobu, 139 N.J.

236, 252 (1995), it determined there was nothing in defendant's background that

was "so extraordinary, unusual[,] or idiosyncratic as to justify

admission/consideration of the application."

Defendant appealed the prosecutor's denial of his request for admission.

On appeal to the trial court, defendant proffered new reasons why his application

should be granted; namely, no prior criminal record, nonviolent criminal

charges, his youth, his rehabilitation potential, his history of drug abuse, and his

role as caretaker for his grandparents. The Prosecutor's Office maintained its

position.

On November 18, 2021, after hearing oral argument, the trial court denied

defendant's motion, finding there was no "patent or gross abuse" of discretion

by the prosecutor. In an oral opinion, the court reasoned the Prosecutor's Office

took into consideration the "entirety" of defendant's application and the

"compelling mitigating" reasons in offering defendant probation. The court

explained that defendant's role as a caretaker for his grandparents was "not

A-0266-22 6 enough" but was also taken into consideration by the Prosecutor's Office. The

court concluded that there was "nothing in this record that shows any compelling

and extraordinary circumstances . . . for which the Prosecutor's Office should

have under these circumstances have allowed this defendant to apply to PTI.

factors."

Thereafter, on December 27, 2021, defendant pleaded guilty to third-

degree possession of mushrooms with intent to distribute, N.J.S.A. 2C:35 -

5(b)(13). During the plea colloquy, defendant admitted the psilocybin

mushrooms belonged to him, and he planned to "share or distribute" the

mushrooms but not sell them. On August 26, 2022, the court sentenced

defendant to one year probation, ordered him to obtain substance abuse testing,

counseling, and treatment, and imposed mandatory fines and penalties.

II.

Defendant appeals the denial of entry into PTI, arguing:

POINT I

A REMAND IS REQUIRED BECAUSE THERE WERE EXTRAORDINARY AND COMPELLING CIRCUMSTANCES TO JUSTIFY CONSIDERATION OF DEFENDANT'S PTI APPLICATION: DEFENDANT, A COLLEGE STUDENT WITH NO PRIOR RECORD, WAS FOUND IN POSSESSION OF DRUGS AND DRUG PARAPHERNALIA, INCLUDING ONE TINFOIL FOLD CONTAINING

A-0266-22 7 BLOTTER PAPER WITH LSD ON IT; ALTHOUGH DEFENDANT WAS ARRESTED FOR THIRD- DEGREE POSSESSION OF LSD, HE WAS INDICTED FOR FIRST-DEGREE POSSESSION WITH INTENT TO DISTRIBUTE BASED ON THE WEIGHT OF THE BLOTTER PAPER.

A. The "Serious Injustice" Standard Does Not Apply When the Charges Involve Nonviolent Drug Offenses That Were Not Part of a Continuing Criminal Enterprise [or] Organized Criminal Activity.

1. The evolution of presumptions against admission.

2. Because, unlike Guideline (3)I, neither the PTI statute nor court rules establish a presumption against admission for first- or second-degree crimes, the "serious injustice" standard does not apply where the offenses charges were not otherwise subject to a presumption against admission.

B. Even If the "Serious Injustice" Standard [was] the Proper Standard, the Prosecutor Misapplied it In This Case.

C. The Prosecutor's Refusal to Consent Cannot Stand Because "[t]he Record Directly Contradicts" the Prosecutor's "Bald Declarations" Regarding the Nature of the Charged Offenses "Were Sufficiently 'Extraordinary and Unusual'" to Justify Consideration of Defendant's Application for Admission to PTI.

A-0266-22 8 Our review of a PTI rejection "is severely limited," and "serves to check

only the 'most egregious examples of injustice and unfairness.'" State v. Negran,

178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 73 N.J. 360, 384 (1997));

see also State v. Denman, 449 N.J. Super. 369, 376 (App. Div. 2017). "'PTI is

essentially an extension of the charging decision, . . . the decision to grant or

deny PTI is a "quintessentially prosecutorial function."'" State v. Johnson, 238

N.J. 119, 128 (2019) (citations omitted). "'As a result, the prosecutor's decision

to accept or reject a defendant's PTI application is entitled to a great deal of

deference.'" Ibid. (citation omitted). Thus, "[a] court reviewing a prosecutor's

decision to deny PTI may overturn that decision only if the defendant 'clearly

and convincingly' establishes the decision was a 'patent and gross abuse of

discretion.'" Id. at 128-29 (quoting State v. Wallace, 146 N.J. 576, 583 (1996)).

A PTI application that requires prosecutor consent pursuant to Rule 3:28-

1(d)(1) must "include a statement of the extraordinary and compelling

circumstances that justify consideration of the application notwithstanding the

presumption of ineligibility based on the nature of the crime charged and any

prior convictions." R. 3:28-3(b)(1). In establishing compelling reasons for

admission into PTI, "there must be a showing greater than that the accused is a

A-0266-22 9 first-time offender and has admitted or accepted responsibility for the crime."

Nwobu, 139 N.J. at 252.

To establish abuse of discretion, a defendant must show the prosecutor's

denial of his or her PTI application "'(a) was not premised upon a consideration

of all relevant factors, (b) was based upon a consideration of irrelevant or

inappropriate factors, or (c) amounted to a clear error in judgment.'" State v.

Roseman, 221 N.J. 611, 625 (2015) (quoting State v. Bender, 80 N.J. 84, 93

(1979)). Abuse of discretion rises to the level of patent and gross when the

defendant shows the prosecutor's denial "'clearly subvert[s] the goals of [PTI].'"

Ibid. (quoting Bender, 80 N.J. at 93).

Having reviewed the record, we conclude that defendant's arguments lack

merit. Prosecutor's Office considered defendant's sole reason articulated in his

initial submission. Here, the record fully supports the denial of defendant's

application. Simply put, a plea offer of noncustodial probation was insufficient

to establish extraordinary and compelling circumstances to overcome the

presumption against PTI admission. We also agree with the trial court's

reasoning that defendant's belated assertion that he was a caretaker role fell short

in establishing establish compelling circumstances. We conclude defendant has

not established the Prosecutor's Office engaged in a patent and gross abuse of

A-0266-22 10 discretion in denying his application for admission into PTI. We, therefore, see

no reason to disturb the trial court's denial of defendant's admission into the PTI

program.

Affirmed.

A-0266-22 11