NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1415-14T1

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, June 6, 2016 v. APPELLATE DIVISION

ALFRED W. COURSEY, III,

Defendant-Appellant. ___________________________

Submitted April 26, 2016 - Decided June 6, 2016

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-03-00121.

Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

Defendant Alfred W. Coursey, III, appeals from his

conviction for third-degree possession of cocaine, N.J.S.A.

2C:35-10(a)(1). The judgment of conviction was based on defendant's guilty plea, following his indictment for fourth-

degree possession of marijuana with intent to distribute,

N.J.S.A. 2C:35-5(a)(1), -5(b)(12), and third-degree cocaine

possession. Defendant was sentenced to one year of probation.

Defendant's appeal focuses on the denial of his suppression

motion, and his rejection from the pre-trial intervention

program (PTI). He presents the following points of argument:

I. THE COURT ERRED IN DENYING THE DEFENDANT'S SUPPRESSION MOTION BECAUSE THE TROOPER LACKED AUTHORITY TO MAKE A WARRANTLESS ARREST BASED SOLELY ON THE SMELL OF MARIJUANA.

II. THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI WAS BASED ON A CATEGORICAL BAN OF ADMISSION FOR ALL PERSONS CHARGED WITH FOURTH- DEGREE POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE, REQUIRING REVERSAL OF THE REJECTION OR, ALTERNATIVELY, A REMAND FOR RECONSIDERATION.

A. BECAUSE THE PROSECUTOR APPLIED A CATEGORICAL BAR TO ADMISSION BASED ON THE OFFENSE CHARGED, A REMAND IS REQUIRED FOR RECONSIDERATION.

B. IN ADDITION, BECAUSE GUIDELINE 3(I) DOES NOT LIST POSSESSION WITH INTENT TO DISTRIBUTE CDS AS A CRIME FOR WHICH THE PRESUMPTION AGAINST ADMISSION ATTACHES, AND BECAUSE MARIJUANA CAN NO LONGER BE PROPERLY CLASSIFIED AS A SCHEDULE I SUBSTANCE, THE PROSECUTOR APPLIED THE INCORRECT STANDARD FOR DETERMINING ADMISSION.

2 A-1415-14T1 C. EVEN IF NO CATEGORICAL BAR WAS IMPOSED AND THE PRESUMPTION AGAINST ADMISSION APPLIES, THE PROSECUTOR'S REJECTION OF COURSEY'S PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

III. A REMAND IS REQUIRED BECAUSE THE DEFENDANT WAS PRECLUDED FROM PRESENTING EVIDENCE OF HIS DRUG DEPENDENCY, WHICH WOULD HAVE NEGATED THE PRESUMPTION AGAINST ADMISSIBILITY.

Having reviewed the record in light of the applicable legal

standards, we affirm the denial of defendant's suppression

motion. However, because both the prosecutor's office and the

trial court mistakenly applied PTI Guideline 3(i) to fourth-

degree possession of marijuana with intent to distribute, we

reverse the order denying his PTI appeal and remand for

reconsideration of his application by the prosecutor's office.

[At the Court's direction, Part I of the opinion has been omitted from the published version.]

II

Next we address defendant's argument concerning his

exclusion from PTI. The prosecutor relied in part on the

presumption against admission into PTI of non-addicts charged

with the sale or distribution of Schedule I or II narcotics.

See Guidelines for Operation of Pretrial Intervention in New

Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline

3 A-1415-14T1 3(i), following R. 3:28 at 1193 (2016) (hereinafter Guideline

3(i)). The prosecutor rejected defendant's PTI application,

reasoning that the eighteen bags of marijuana, plus cocaine, and

about $500 in cash, found during the search, were evidence that

defendant intended to sell the drugs for profit and not to

support an addiction. The prosecutor noted the absence of

evidence that defendant was a drug addict or possessed those

amounts of drugs for personal use. In denying defendant's PTI

appeal the trial court relied on the same presumption against

PTI admission, based on defendant's being charged with

possession of marijuana with intent to distribute.

We conclude that the prosecutor erred in applying Guideline

3(i), because 3(i) does not apply to third or fourth-degree

marijuana possession with intent to distribute. Cf. State v.

Caliguiri,

(1999) (third-degree marijuana

possession with intent to distribute in a school zone, N.J.S.A.

2C:35-7, an offense "carrying a mandatory term of

imprisonment[,]" can be treated as included in Guideline 3(i)).

The applicable PTI Guideline applies a presumption against

PTI eligibility for defendants charged with crimes of violence,

organized crime, breach of the public trust, or with some of the

most serious drug-related offenses. Guideline 3(i). In

pertinent part it provides:

4 A-1415-14T1 A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L. 1970, c. 226 (N.J.S.A. 24:21-2 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's 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.

[Guideline 3(i) (emphasis added).]

As previously noted, Guideline 3(i), by its terms, applies

to violent offenses and other "serious or heinous crimes."

State v. Watkins,

(2008). The enumerated

offenses "represent a legislative decision to prevent serious

offenders from avoiding prosecution in ordinary circumstances."

. The listed offenses include

"sale or dispensing of Schedule I or II narcotic drugs as

defined in . . . N.J.S.A. 24:21-1 et seq." Guideline 3(i).

Marijuana is still included in the definition of a Schedule

I controlled dangerous substance (CDS). N.J.S.A. 24:21-

5(e)(10); see Myers, supra, 442 N.J. Super. at 298, 302-04.

However, marijuana is not a "narcotic drug" as defined in

5 A-1415-14T1 N.J.S.A. 24:21-2 (defining "narcotic drug" as "[o]pium, coca

leaves, and opiates," as well as related substances). Moreover,

possession with intent to distribute is not technically a sale,

nor is it "dispensing" as defined in N.J.S.A. 24:21-2 (defining

to "dispense" as to deliver a CDS "subject by or pursuant to the

lawful order of a practitioner").

The Supreme Court in Caliguiri provided guidance on how to

interpret Guideline 3(i) generally and in this instance. In

Caliguiri, the Court addressed the application of Guideline 3(i)

to a defendant charged with possession of marijuana with intent

to distribute in a school zone, N.J.S.A. 2C:35-7, a third-degree

crime. Caliquiri, supra,

. The Court

concluded that, because the Legislature had chosen to treat

school zone drug offenses as particularly serious crimes, by

giving them a penalty structure "'similar to that for second-

degree offenses,'" including a mandatory prison term, the

defendant should be subject to 3(i), as though he had been

charged with a second-degree drug offense.

, 43

(quoting State v. Baynes,

(1997)). Clearly,

if possession of marijuana with intent to distribute were

already included in 3(i), the Court would not have needed to

consider that issue. Hence, we infer that the Court did not

consider ordinary third-degree or lower charges of marijuana

6 A-1415-14T1 possession with intent to distribute as being covered by

Guideline 3(i). In light of Caliguiri, and given the remedial

purpose of PTI, we will not construe Guideline 3(i) as applying

to the relatively low-level offenses of non-school-zone third or

fourth-degree possession of marijuana with intent to distribute.

See N.J.S.A. 2C:43-12(a); State v. Roseman,

(2015);

.1

1 Based only on its wording, it is not clear whether Guideline 3(i) applies to possession of Schedule I and II narcotics with intent to distribute, or only to the "sale" of those narcotics. The term "distribute" includes both selling or sharing CDS. See N.J.S.A. 24:21-2; State v. Roach,

(App. Div. 1987), certif. denied,

(1988). The pertinent criminal statute, N.J.S.A. 2C:35-5, makes it unlawful "[t]o manufacture, distribute or dispense, or to possess . . . with intent to manufacture, distribute or dispense, a controlled dangerous substance." N.J.S.A. 2C:35-5(a)(1) (emphasis added). Guideline 3(i) does not track the language of N.J.S.A. 2C:35- 5(a)(1), because it only refers to "sale," which is a subset of "distribute," and it does not list possession with intent. On the one hand, it is possible that 3(i) intentionally listed only the "sale" of CDS because it was aimed at persons who sell drugs for profit, as opposed to individuals who share CDS with companions. On the other hand, under N.J.S.A. 2C:35-5(b), possession with intent to distribute the listed drugs is the same degree crime as the sale of those drugs, suggesting that under Caliguiri's rationale 3(i) would, for example, apply to possession with intent to distribute heroin equally with the sale of heroin. Because marijuana is plainly not a "narcotic drug" within the meaning of 3(i), and because Caliguiri did not consider third-degree possession of marijuana with intent to distribute to be itself sufficient to trigger 3(i), we need not definitively address the issue in this case. However, we refer this issue to the Criminal Practice Committee for its consideration.

7 A-1415-14T1 A defendant charged with one of the crimes included in

Guideline 3(i) faces a significant hurdle to PTI admission,

which other applicants need not surmount. Accordingly, the

mistaken application of Guideline 3(i) to a defendant not

charged with one of the included crimes constitutes a gross and

patent abuse of the prosecutor's discretion. See

; State v. Bender,

(1979).

In this case, the prosecutor applied the presumption of PTI

ineligibility to defendant, based on his having been charged

with fourth-degree possession of marijuana with intent to

distribute, N.J.S.A. 2C:35-5(b)(12). The trial court applied

the presumption as well. That error requires that we reverse

the PTI order on appeal and remand this case to the prosecutor

for reconsideration ab initio. See

;

.

In addition to challenging the prosecutor's PTI decision,

defendant argues that his trial counsel was ineffective in

failing to bring to the prosecutor's attention defendant's

substance abuse problems. We also note that, in sentencing

defendant, the trial judge did consider his drug problem as a

mitigating factor. Even if not required to address Guideline

3(i), evidence of a defendant's drug dependency may be an

important factor in a PTI application. See N.J.S.A. 2C:43-

8 A-1415-14T1 12(a)(1). To avoid a miscarriage of justice, we direct that, as

part of the prosecutor's reconsideration of defendant's PTI

application, defendant shall be given an opportunity to submit

to the prosecutor any available evidence that he was drug

dependent at the time he committed the offenses with which he

was charged.2 Given the passage of time, and our requirement

that the review be ab initio, defendant may also bring to the

prosecutor's attention any other pertinent information bearing

on his PTI application. See State v. Randolph,

(2012).

Affirmed in part, reversed and remanded in part. We do not

retain jurisdiction.

2 In light of our disposition of this appeal, we need not consider defendant's additional appellate arguments.

9 A-1415-14T1