Opinion
DOCKET NO. A-4239-12T1
10-06-2014
STATE OF NEW JERSEY Plaintiff-Respondent, v. LAQIESHA R. COOKE, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 12-05-286. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Jenny M. Hsu, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Hsu, on the brief). PER CURIAM
Defendant, Laqiesha Cooke, appeals from a Law Division order denying her admission into the Pre-trial Intervention program (PTI). We affirm.
PTI is a program for diversion of eligible defendants from criminal prosecution and conviction. N.J.S.A. 2C:43-12 to -22; R. 3:28. It entails a period of supervision of the defendant. Afterwards, the criminal charge will be dismissed if the defendant has not committed any other offense and has successfully completed the requirements of the program. See N.J.S.A. 2C:43-13. The PTI program is ordinarily intended for first-time offenders. N.J.S.A. 2C:43-12(a). Admission requires a favorable recommendation from the PTI director and the consent of the prosecutor. N.J.S.A. 2C:43-12(e); State v. Nwobu, 139 N.J. 236, 246 (1995).
In this case, a Salem County grand jury indicted defendant on one count of third-degree possession with intent to distribute a controlled dangerous substance, marijuana, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(5), and third-degree possession with intent to distribute a controlled dangerous substance, marijuana, within 1,000 feet of school property, N.J.S.A. 2C:35-7. A defendant charged with a sale or dispensing a Schedule I or II narcotic drug is not ordinarily considered for enrollment in the PTI program. R. 3:28, Guideline 3(i).
Subsequent to her arrest, defendant applied for entry into PTI. The program director investigated the charge and defendant's personal circumstances and rejected her admission to the program. The prosecutor also rejected defendant's application. Thereafter, defendant filed an appeal in the Law Division which was denied. On that same day, defendant pleaded guilty to count one of the indictment pursuant to a negotiated plea agreement. In exchange for the plea, the State agreed to recommend a probationary sentence of one year and to dismiss the remaining charges. This appeal followed.
We derive the relevant facts of the offense and the prior court history from the record. On January 13, 2012, a search warrant was executed for defendant's residence. At the time of the search, defendant informed police that she possessed twenty-eight bags of marijuana in a bedroom closet and that it was her intention to distribute the marijuana to others. In addition to the marijuana, items associated with distribution including a scale and cash were seized.
In rejecting defendant's application, the PTI director noted the conduct for which she had been indicted, i.e., distribution of controlled dangerous substances, defendant's pattern of arrests while a juvenile and her failure to successfully complete juvenile probation. The prosecutor provided additional reasons for rejection of defendant's application citing the factors in the statute and the rule. In denying defendant's appeal, the Law Division judge found that, although the charges represented her first adult offenses, she had a history of similar conduct as a juvenile including a prior adjudication of delinquency predicated upon a similar criminal charge. The judge determined that defendant had not overcome the presumption of deference afforded to the prosecutor's decision.
Defendant raises the following issues on appeal.
POINT I
BECAUSE THE FACTUAL PREDICATE FOR CLASSIFYING MARIJUANA AS A SCHEDULE I SUBSTANCE IS NO LONGER VALID, THIS MATTER MUST BE REMANDED TO DETERMINE THE APPROPRIATE SCHEDULE FOR MARIJUANA (NOT RAISED BELOW).
POINT II
BECAUSE THE STATE ERRED BY VIEWING MARIJUANA AS A SCHEDULE I SUBSTANCE WHEN THE FACTUAL PREDICATE WAS NO LONGER VALID, THIS MATTER MUST BE REMANDED TO ALLOW THE STATE TO CONSIDER MS. COOKE'S PTI APPLICATION IN LIGHT OF MARIJUANA'S UPDATED SCHEDULE CLASSIFICATION (NOT RAISED BELOW).
As a preliminary matter, issues not raised below ordinarily will not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest. State v. Galicia, 210 N.J. 364, 383 (2012); State v. Robinson, 200 N.J. 1, 20-22 (2009). The general rule does not apply where the issue was raised in the trial court but was based upon a different theory. Docteroff v. Barra Corp. of America, Inc., 282, N.J. Super. 230, 237 (App. Div. 1995); State v. Gruber, 362 N.J. Super. 519, 530 (App. Div.), certif. denied, 178 N.J. 251 (2003). On appeal, defendant raises for the first time, an alternative "theory" on the issue of her denial of admission into PTI. The "issue" of the propriety of her denial was raised below. Accordingly, we perceive no procedural bar to our consideration of this argument.
In light of defendant's arguments, we commence our analysis with adherence to the precept that regulation and scheduling of a controlled dangerous substance is not within the ambit of the authority vested in the judiciary. Rather, that authority is vested with the legislature, both at the Federal and State level. 21 U.S.C.A. § 812, N.J.S.A. 24:21-1 to -53 ("New Jersey Controlled Dangerous Substances Act"). N.J.S.A. 24:2-3(a) vests the administration of the statute as amended and supplemented with the Director of the Division of Consumer Affairs in the Department of Law and Public Safety. The Director may reschedule substances in accord with their statutory authority. The statute recognizes the inter-relation between federal law and state law regarding the rescheduling of controlled dangerous substances. N.J.S.A. 24:21-3(c).
Although defendant's arguments have some attractiveness, especially when considering recent legislation in New Jersey permitting medical use of marijuana for qualifying patients, marijuana was at the time of her application and remains, a Schedule I controlled dangerous substance. Therefore, to the extent that defendant's application was rejected due to the scheduling of marijuana, the predicate for the rejection was in conformity with the existing law.
During oral argument, defendant's counsel acknowledged that even if the scheduling of marijuana was altered to Schedule II, the "presumption" disfavoring defendant's admission into PTI would remain. Further, predicated upon our finding as to the appropriate judicial role in scheduling narcotic drugs, we need not address what the appropriate schedule should be for marijuana.
Defendant does not assert any other challenge to the prosecutor's decision or the court's affirmance. Nonetheless, we note that the prosecutor provided numerous reasons for the decision to reject defendant's enrollment into PTI. The prosecutor cited specific statutory factors including: the nature of the offense; the facts of the case; the existence of personal problems or characteristics that can be controlled by supervisory treatment; the relation of the crime to a condition or situation that would be conducive to change through supervisory treatment; and the nature of the crime and whether the value of supervisory treatment would be outweighed by the public need for prosecution. The prosecutor's objection also noted that the defendant was selling marijuana for profit and that there was no evidence that defendant was drug dependent.
Judicial review of the prosecutor's decision is severely limited. Nwobu, supra, 139 N.J. at 246; State v. Hermann, 80 N.J. 122, 128 (1979). Prosecutors have wide latitude in deciding when to divert and when to prosecute. Nwobu, supra, 139 N.J. at 246. Courts grant "enhanced" or "extra" deference to that decision. Ibid.; accord State v. Baynes, 148 N.J. 434, 443-44 (1997). "Judicial review serves to check only the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)); accord Nwobu, supra, 139 N.J. at 246; State v. DeMarco, 107 N.J. 562, 566 (1987).
Consequently, a reviewing court may order a defendant into PTI over the prosecutor's objection only if the defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of . . . discretion." State v. Wallace, 146 N.J. 576, 582 (1996) (alteration in original) (quoting Leonardis, supra, 73 N.J. at 382); accord Baynes, supra, 148 N.J. at 444.
In State v. Bender, 80 N.J. 84, 93 (1979), the Court explained in greater detail the meaning of patent and gross abuse of discretion in the PTI context:
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (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. In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.
[(Citations omitted).]
When applying this standard to the record, we find no error.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION