Opinion
DOCKET NO. A-4358-13T2
03-18-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LUIS GAMBOA-APARICIO, Defendant-Respondent.
Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Reid Weinman, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-10-1336. Andrew C. Carey, Middlesex County Prosecutor, attorney for appellant (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Reid Weinman, attorney for respondent. PER CURIAM
The State appeals from the May 8, 2014 Law Division order, which denied its motion for reconsideration of the April 14, 2014 order admitting defendant Luis Gamboa-Aparicio into the pre-trial intervention (PTI) program over the prosecutor's objection. For the reasons that follow, we remand to the prosecutor to re-evaluate the decision to reject defendant's admission into PTI.
A grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS) N.J.S.A. 2C:35-10(a)(1); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3); and third-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(3). The charges stemmed from defendant's sale of approximately three grams of cocaine to an undercover narcotics officer for $80.
Defendant emigrated from Mexico at the age of thirteen and one-half but was apparently residing in this country illegally. The State provided no record of defendant's criminal history, if any, in Mexico. Defendant's United States record reveals he has no prior juvenile adjudications or adult convictions but had two arrests in New Jersey for non-indictable offenses. The charges for those arrests were dismissed after defendant voluntarily left the United States. Defendant committed the present offenses after returning to this country. Following his arrest, defendant obtained employment and stable housing with family members.
Defendant applied for admission into the PTI program. The Criminal Division manager recommended defendant's admission, but the prosecutor disagreed, citing the following reasons:
[N.J.S.A.] 2C:43-12(e)(1) and (2): The nature of the offense and the facts of the case specifically a sale of illegal drugs to an undercover police officer.
[N.J.S.A.] 2C:43-12(e)(3): Defendant was motivated for profit in an organize[d] scheme.
[N.J.S.A.] 2C:43-12(e)(7): The needs and interests of society.
[N.J.S.A.] 2C:43-12(e)(8): Defendant['s] actions illustrated a continuing pattern of anti-social behavior. His juvenile record is unknown because he is an illegal alien. His adult record includes [two] prior arrests that although they were dismissed should have impressed upon him not to violate the laws of this State. They did not.
[N.J.S.A.] 2C:43-12(e)(11): Defendant does not work and since he has been in this country for [six] years only had one job for 1 year. He obviously sells drugs to maintain his lifestyle. Additionally he comes from a social environment that includes his brother being incarcerated in Garden State Youth Correctional facility. Obviously there is no family support to maintain a conformist life style with the laws of this State.
[N.J.S.A.] 2C:43-12(e)(14): The crime is of such a nature that the value of PTI is not outweighed by the public need for prosecution.
[N.J.S.A.] 2C:43-12(e)(15): The State is best served by processing this case through traditional criminal justice system procedures.
[N.J.S.A.] 2C:43-12(e)(17): Abandoning criminal prosecution would not be appropriate in this case.
In rejecting the prosecutor's reasons for factors (1) and (3), the judge found this was a one-time sale of a small amount of cocaine to undercover agents and there was no on-going sale of CDS, which would indicate a profit motive. As for factors (8) and (11), the judge found there was no evidence of a continuing pattern of antisocial behavior, the prosecutor inappropriately relied on defendant's immigration status and brother's incarceration, and the prosecutor failed to consider defendant's employment and stable housing. The judge determined that the prosecutor's reasons for factors (14), (15) and (17) were too generalized. Accordingly, the judge concluded that the denial of PTI was a patent abuse of discretion.
We agree with the judge that defendant's brother's incarceration was irrelevant to whether defendant qualified for PTI, defendant's employment and housing were relevant positive factors to be considered, and the prosecutor's reasons for factors (14), (15) and (17) were too generalized. In addition, our Supreme Court recently held that it is improper to use prior dismissed charges alone as evidence supporting N.J.S.A. 2C:43- 12(e)(8). State v. K.S., 220 N.J. 190, 202 (2015). Accordingly, we vacate the trial court's order admitting defendant to PTI and remand this matter to the prosecutor for reconsideration of defendant's application in a manner that adheres to the terms of this opinion. If, on reconsideration, the prosecutor continues to reject defendant for PTI, defendant may seek review of that decision in the first instance in the trial court.
Remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION