                                NOT FOR PUBLICATION WITHOUT THE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-2623-15T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

COREY SAUNDERS, a/k/a
COREY SANDERS,

     Defendant-Appellant.
____________________________________

                    Submitted January 10, 2018 – Decided October 17, 2018

                    Before Judges Fuentes and Suter.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 13-06-
                    0852.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Lauren S. Michaels, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Nancy A. Hulett, Assistant
                    Prosecutor, of counsel and on the brief).

           The opinion of the court was delivered by
FUENTES, P.J.A.D.

      A Middlesex County grand jury returned an indictment against defendant

Corey Saunders, charging him with three counts of third degree possession of

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

cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1); three counts of third

degree distribution of cocaine, N.J.S.A. 2C:35-5(b)(3); three counts of third

degree possession of cocaine with intent to distribute or distributing cocaine

within 1000 feet of a school, N.J.S.A. 2C:35-7; and one count of second degree

distribution of cocaine to an undercover police officer within 500 feet of a public

housing complex, N.J.S.A. 2C:35-7.1.1

      On October 25, 2013, defendant entered into a negotiated agreement with

the State, through which he pled guilty to one count of third degree distribution

of cocaine to an undercover police officer, within 1000 feet of a school.         In

exchange, the State agreed to dismiss the remaining counts in the indictment and

recommended that the court sentence defendant to a four-year term of

imprisonment, with eighteen months of parole ineligibility. On March 11, 2014,

the trial judge sentenced defendant consistent with the terms of the plea



1
    The first indictment charged defendant with committing only twelve third
degree drug-related offenses. The State thereafter obtained a superseding
indictment that added the second degree offense under N.J.S.A. 2C:35-7.1.
                                                                           A-2623-15T1
                                        2
agreement. Defendant appeals from the order of the Criminal Part that upheld

the decision of the Middlesex County Prosecutor's Office (MCPO) to deny his

application for admission into the pre-trial intervention (PTI) program. This is

the second time defendant has brought this issue before this court. In the first

appeal, defendant argued, inter alia, that the MCPO improperly considered and

relied on prior dismissed charges "to wrongly find that the present allegations

were part of a continuing pattern of antisocial behavior."           State v. Corey

Saunders, No. A-4460-13 (App. Div. September 22, 2015) (slip op. at 2).

      In response to this particular argument, this court noted that at the time

the MCPO rejected defendant's PTI application, our Supreme Court had not yet

decided State v. K.S., 220 N.J. 190 (2015). Id. at 4. In K.S., the Court

considered "whether it was proper for the Somerset County Prosecutor to rely

upon adult criminal charges that had been dismissed and juvenile charges of

possession of a weapon, assault, fighting, and harassment that had been diverted

and dismissed in rejecting defendant's application for admission into [the PTI

program]." 220 N.J. at 193.

      After a careful review of the salient facts of the case, the eligibility factors

codified in N.J.S.A. 2C:43-12(e), and the guidelines in Rule 3:28, the Court in

K.S. held "it is improper to rely upon previously dismissed charges alone as


                                                                              A-2623-15T1
                                          3
evidence in support of a 'continuing pattern of anti-social behavior.'" Saunders,

slip op. at 4 (quoting K.S., 220 N.J. at 201-02). Although we acknowledged that

the prosecutor "did not rely solely on dismissed charges to justify his finding of

continuing antisocial behavior . . . [,]" the record showed that the "dismissed

charges constituted a sufficiently prominent part of the prosecutor's reasoning

to call into question his conclusion." Saunders, slip op. at 4. We thus vacated

the trial court's order that upheld the prosecutor's rejection of defendant's

application for admission into PTI and remanded the matter "to the prosecutor

for further consideration in light of K.S." Ibid.

      The MCPO responded to this court's remand order in a letter dated

October 21, 2015, addressed to the trial judge assigned to decide defendant's

challenge to the prosecutor's rejection of his application for admission into PTI.2

In a comprehensive, well-reasoned analysis, the prosecutor described the

evidence that supports the charges against defendant.            According to a

certification submitted by an MCPO investigator, on three separate occasions

between February 17, 2012 and February 24, 2012, defendant sold a quantity of

cocaine to an undercover law enforcement officer. Defendant made these three



2
  Pursuant to Rule 3:28(a): "Each Assignment Judge shall designate a judge or
judges to act on matters pertaining to pretrial intervention programs in the
vicinage in accordance with N.J.S.A. 2C:43-12 and 13."
                                                                           A-2623-15T1
                                        4
illicit transactions within 1000 feet of two elementary schools. Although legally

irrelevant under N.J.S.A. 2C:35-7(d), the prosecutor noted that when one of the

three alleged illicit transactions occurred, one of the schools was not in session

due to a legal holiday. The schools were in session, however, when defendant

allegedly sold cocaine to the undercover officer on two other separate occasions.

Finally, the investigator emphasized that the location defendant selected to

engage in these illicit activities is frequently used by the children "as a major

route to walk to and from … school."

      The prosecutor again denied defendant's PTI application. This time, the

prosecutor emphasized that his decision to reject defendant's application was not

influenced by any prior criminal charges that did not result in a conviction or

juvenile complaints that did not result in an adjudication of delinquency. The

prosecutor claimed his decision was strictly based on the criteria codified in

N.J.S.A. 2C:43-12(e).    The following analysis of N.J.S.A. 2C:43-12(e)(14)

reflects the prosecutor's overall assessment of       defendant's suitability for

admission into PTI:

            The State contends that there is no proper "supervisory
            treatment" in this particular case for this defendant. His
            ready access to drugs and lack of consideration for
            whom he sells the drugs to or where he sells the drugs
            at are indicative of the fact that he cares not for the
            consequences of his actions. He will sell to people he

                                                                          A-2623-15T1
                                        5
             does not know and has met for the first time on three
             (3) separate occasions. [sic] The fact that this individual
             does not care about the consequences of his actions
             makes "supervisory treatment" inapplicable in this
             case. Upon the direction of the Appellate Division to
             re-evaluate our position, a review of this factor
             [N.J.S.A. 2C:43-12(e)(14)] weighs against admitting
             this defendant into PTI.

      The judge assigned to review the prosecutor's rejection of defendant's PTI

application reached a similar conclusion. Defendant was nineteen years old at

the time he was selling cocaine to undercover police officers. The judge found

defendant "used marijuana every day" and was taking opioid-based medication.

Defendant was adjudicated delinquent on the charge of armed robbery with a

knife when he was merely twelve years old. Based on the seriousness of the

charges listed in the indictment, the judge found "the prosecutor has not abused

his discretion" when he decided to reject defendant's application for admission

into PTI.

      Against this record, defendant now appeals raising the following

arguments.

             POINT I

             AFTER BEING ORDERED BY THIS COURT TO
             RECONSIDER SAUNDERS' PTI APPLICATION,
             THE PROSECUTOR STOOD BY HIS INITIAL
             DECISION TO REJECT SAUNDERS DESPITE THE
             PROGRAM DIRECTOR'S RECOMMENDATION

                                                                           A-2623-15T1
                                         6
FOR ADMISSION AND SAUNDERS' CLEAR
SUITABILITY FOR PARTICIPATION IN A
SUPERVISORY PROGRAM. THE PROSECUTOR'S
DECISION CONSTITUTED A PATENT AND
GROSS ABUSE OF DISCRETION THAT CLEARLY
SUBVERTED THE GOALS UNDERLYING PTI,
AND MUST BE REVERSED.

A. The prosecutor's rejection was not premised on a
consideration of all relevant factors, and was based on
a consideration of irrelevant or inappropriate factors.

      1. Although he was ordered to reconsider
      Saunders'     application    without     the
      dismissed charges, it is evident that the
      prosecutor did not actually reconsider the
      application, but instead simply removed
      the references to the dismissed charges. As
      a result, the prosecutor again wrongly
      found that the present allegations were part
      of a continuing pattern of antisocial
      behavior.

      2.    The prosecutor again incorrectly
      determined that Saunders was dangerous
      and had a violent history, and that selling
      drugs near school property, with no
      children around, "displays injurious
      consequence to innocent children."

      3. "The facts of the case" and "the nature
      of the case" actually inure in Saunders'
      favor.

      4. In a case involving unremarkable
      controlled buys in which no one was
      injured or threatened it was improper for
      the prosecutor to consider the opinion of a

                                                          A-2623-15T1
                           7
                  police officer as a stand in for a "victim" to
                  deny Saunders the opportunity to enter
                  PTI.

                  5. The prosecutor improperly denied the
                  application because of Saunders' alleged
                  involvement in organized criminal activity,
                  based on the conclusion that this applies to
                  any drug sale.

                  6. The prosecutor's rejection of Saunders
                  based on a vague allegation that he was
                  "associate[ed] [sic] with known gang
                  members" was a gross and patent abuse of
                  discretion.

                  7. The prosecutor's baseless conclusion
                  that Saunders was motivated "solely by
                  profit" in the face of undisputed evidence
                  was a gross and patent abuse of discretion.

            B. The prosecutor failed to conduct an individualized
            assessment, improperly found that Saunders did not
            respond positively to rehabilitative efforts to address
            his personal problems, and insinuated that his
            documented disabilities were unproven. This was a
            clear error in judgment because it is undisputed that
            Saunders has struggled with learning disability [sic],
            delays, and ADHD, as well as trauma, from a very
            young age, [and] that he responded favorably to
            juvenile probation, and he is young.

      We reject these arguments and affirm. In order for a trial judge to admit

a defendant into PTI over the prosecutor's objection, the judge must find the

prosecutor's decision constituted "a patent and gross abuse of discretion." State


                                                                         A-2623-15T1
                                        8
v. Roseman, 221 N.J. 611, 625 (2015). "The purpose of the PTI Program is to

provide the opportunity to certain defendants to avoid the traditional

prosecutorial route by receiving rehabilitative services." State v. Rizzitello, 447

N.J. Super 301, 310-11 (App. Div. 2016) (citing Guideline 1 to Rule 3:28). This

diversionary program is predicated on the prosecutor's discretionary authority

to determine whether there is sufficient evidence to charge an individual with a

criminal offense. Thus, "the decision to grant or deny PTI is a 'quintessentially

prosecutorial function.'" Roseman, 221 N.J. at 624 (quoting State v. Wallace,

146 N.J. 576, 582 (1996)).

      Here, defendant was charged with selling cocaine to an undercover law

enforcement officer, on three separate occasions and within 1000 feet of two

elementary schools.    These are not isolated incidents. This is evidence of a

pattern of criminal activity that involves the distribution and acquisition of

quantities of a highly addictive illicit narcotic. The State presented strong

evidence of defendant's guilt. If convicted after a trial, defendant was facing an

aggregate sentence of fifteen years imprisonment, with nine years of parole

ineligibility. See N.J.S.A. 2C:35-7.

      The prosecutor's statement of reasons in response to our remand order

addressed every factor codified in N.J.S.A. 2C:43-12(e). We discern no legal


                                                                           A-2623-15T1
                                        9
basis to disturb the trial judge's findings and ultimate decision to uphold the

prosecutor's rejection of defendant's application for admission into PTI.

      Affirmed.




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                                      10
