                        NOT FOR PUBLICATION WITHOUT THE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-0625-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAVON M. JOHNSON,

        Defendant-Appellant.

_____________________________

              Submitted May 2, 2017 – Decided November 2, 2017

              Before Judges Messano and Suter.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Indictment
              No. 15-01-0055.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Peter T. Blum, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Carolyn A. Murray, Acting Essex County
              Prosecutor, attorney for respondent (Kayla
              Elizabeth Rowe, Special Deputy Attorney
              General/Acting   Assistant Prosecutor,  of
              counsel and on the brief).

PER CURIAM
     Defendant appeals from the denial of his application for

admission into the Pretrial Intervention Program (PTI) following

his arrest for possession of one hundred fifty envelopes of heroin

in a school zone.   We affirm.

                                 I.

     Defendant, a twenty-one year old with no criminal record, was

stopped by Newark police officers on May 18, 2014, for failing to

stop at a red light.     According to the police, when defendant

reached into the glove compartment to retrieve his credentials,

three bricks of heroin fell to the floor, containing one hundred

fifty glassine envelopes of heroin.      He was charged with three

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

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

5(a)(1) and (b)(3); and possession of heroin with intent to

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

     Defendant applied for admission to PTI in July 2014.        His

counsel filed a letter providing a Statement of Compelling Reasons

in support of his application.    The letter noted defendant was a

life-long Newark resident who graduated from Malcolm X Shabazz

High School three years earlier.      He had been active in varsity

sports and was a full-time student at Bloomfield College, studying

accounting.   Defendant also worked at a number of different jobs

and spent time caring for his younger sister, nieces and nephews.

                                 2                          A-0625-15T1
Citing the purposes of PTI, defense counsel submitted that PTI

would be a sufficient deterrent to future criminal conduct, that

any indictable conviction would cause substantial hardship to

defendant and his family, jeopardizing his ability to complete

college and obtain employment in accounting.      Counsel also noted

the   following   mitigating   factors:   defendant's    character     and

attitude, his lack of any prior delinquency or criminal activity,

the likelihood he would respond affirmatively to probationary

treatment, the role his youthfulness played in the offense and

that the offense was the result of circumstances unlikely to recur.

      Following review of defendant's application and his counsel's

Statement Of Compelling Reasons, the Probation Office recommended

against his admission to PTI, setting forth the following reasons:

           You were arrested by Newark Police in
           possession of 150 glassine envelopes of
           heroin. You reported no history of substance
           abuse or drug dependence. Based on the facts
           of the case and the likelihood of the present
           offense being a part of an organized criminal
           activity as well as a pattern of anti-social
           activity, your application for admittance into
           the PTI program is denied.

      In a seven-page letter dated November 7, 2014, the State

rejected   defendant's   PTI   application.    The      letter   reviewed

defendant's personal circumstances, including his age, residence,

education and work history, his denial of drug use and absence of



                                   3                              A-0625-15T1
a   criminal   record.     The   State   also   reviewed   the   details   of

defendant's offense.

      Turning to an analysis of the aggravating factors it deemed

relevant to defendant's application, the State cited and discussed

the following factors: the nature of the offense, N.J.S.A. 2C:43-

12(e)(1); the facts of the case, N.J.S.A. 2C:43-12(e)(2); the

needs and interests of the victim and society, N.J.S.A. 2C:43-

12(e)(7); whether or not the crime is of such a nature that the

value of supervisory treatment would be outweighed by the public

need for prosecution, N.J.S.A. 2C:43-12(e)(14); and whether or not

the harm done to society by abandoning criminal prosecution would

outweigh the benefits to society from channeling an offender into

a supervisory treatment program, N.J.S.A. 2C:43-12(e)(17).                 In

discussing the nature of the offense, the State noted defendant

was presumptively ineligible for PTI because he was charged with

a school zone offense.

      The State also identified mitigating factors relevant to its

consideration of defendant's potential for rehabilitation: the

motivation     and   age   of    defendant,     N.J.S.A.   2C:43-12(e)(3);

defendant had "no prior criminal record of any kind," N.J.S.A.

2C:43-12(e)(9); the crime did not involve violence or the threat

of violence, N.J.S.A. 2C:43-12(e)(10); the lack of any evidence

"suggest[ing] that defendant was involved with gangs or organized

                                     4                              A-0625-15T1
crime," N.J.S.A. 2C:43-12(e)(13); and, because there were no co-

defendants, defendant's participation in PTI would not adversely

affect their prosecution, N.J.S.A. 2C:43-12(e)(16).              The State

determined the aggravating factors it identified outweighed the

mitigating factors and militated against defendant's admission

into PTI.

     The State also addressed defendant's Statement of Compelling

Reasons and arguments for admission. Among the reasons articulated

in response, the State noted it "relied heavily" on the fact that,

although defendant "is admittedly not a heroin user," he possessed

"a significant amount of heroin" that was "conveniently packaged

into three separate bricks" for distribution.              The State also

repeated that defendant was presumptively ineligible for PTI,

stating,    "Defendant's   crimes   not   only   include   a   school   zone

offense, but highlight the fact that he is charged with a heroin

distribution offense despite not being drug dependent himself.

Guideline 3(i) of R. 3:28."         The State concluded defendant had

failed to present sufficient compelling reasons to rebut the

presumption against his admission.

     An Essex County grand jury returned an indictment against

defendant in January 2015, charging him with the same offenses

filed against him at the time of his arrest.



                                     5                              A-0625-15T1
      On March 23, 2015, defendant filed an appeal with the Law

Division   from    the   State's   rejection     of     his    PTI    application.

Because "[a]n appeal by the defendant shall be made . . . within

ten days after the rejection," R. 3:28(h), the appeal was untimely.

The submission was also incomplete because three of the letter

brief's seven pages were not included in the filing.                  In response,

the   State   argued     defendant's   appeal     was    procedurally       barred

because it was untimely and further, that it should be denied on

the merits.

      The trial judge acknowledged the State's procedural argument

but did not limit his reasons for denying the appeal to that basis.

He stated, "[E]ven assuming that this appeal was not procedurally

barred . . . I nonetheless find that the defendant's motion fails

on the merits" and then proceeded to state the reasons for his

ruling.    The trial judge found the prosecutor had evaluated and

weighed all relevant aggravating and mitigating factors, provided

a synopsis of her reasoning and supporting caselaw regarding each

factor and that the defendant had failed to demonstrate the

rejection amounted to a clear error in judgment.                        Citing the

Supreme Court's holding in State v. Caliguiri, 158 N.J. 25, 43

(1999) ("[W]e hold that prosecutors may treat N.J.S.A. 2C:35-7 as

equivalent    to    a     second-degree      offense      and        consider   PTI

presumptively      unavailable."),         the   trial        judge    noted    the

                                       6                                   A-0625-15T1
presumption against admission was only overcome by a demonstration

of compelling reasons, which defendant had failed to show.

     Thereafter, defendant entered a guilty plea to one count of

possession of heroin pursuant to a plea agreement and was sentenced

to two years' probation.

      Defendant   presents     the   following   issues   for     our

consideration in his appeal:

               POINT I

               A REMAND SHOULD OCCUR BECAUSE THE
               TRIAL COURT DEPRIVED JOHNSON OF DUE
               PROCESS IN DECIDING THE PTI APPEAL
               BASED ON A DEFENSE BRIEF THAT WAS
               MISSING NEARLY HALF ITS PAGES. U.S.
               CONST. AMEND. XIV; N.J. CONST. ART.
               I, PARA. 1.

               POINT II

               THE COURT'S REFUSAL TO EXCUSE THE
               LATENESS OF THE PTI APPEAL WAS
               IMPROPER BECAUSE THE PAGES MISSING
               FROM THE DEFENSE BRIEF DEMONSTRATE
               THAT (A) GOOD CAUSE EXISTED FOR THE
               COURT TO ENLARGE THE TIME AND,
               ALTERNATIVELY, (B) THE OMISSION OF
               THE    PAGES     WAS     INEFFECTIVE
               ASSISTANCE OF COUNSEL. U.S. CONST.
               AMENDS. VI, XIV; N.J. CONST. ART. I,
               PARAS. 1, 10.

                    A.   GOOD CAUSE EXISTED TO
               ENLARGE THE TEN-DAY TIME LIMIT TO
               FILE A PTI APPEAL WHEN JOHNSON'S
               COUNSEL DID NOT LEARN OF THE PTI
               REJECTION FOR "MONTHS."



                                 7                           A-0625-15T1
                   B.   ALTERNATIVELY,         THE
              UNPROFESSIONAL   OMISSION   OF   THE
              PAGES WAS INEFFECTIVE ASSISTANCE OF
              COUNSEL   BECAUSE    A    REASONABLE
              PROBABILITY EXISTS THAT THE COURT
              BELOW WOULD NOT HAVE HELD THE APPEAL
              TIME-BARRED HAD IT SEEN THE PAGES.

              POINT III

              A REMAND SHOULD OCCUR BECAUSE THE
              PROSECUTOR IMPROPERLY DENIED PTI BY
              APPLYING INAPPLICABLE PRESUMPTIONS.

                   A.   THE PRESUMPTION AGAINST
              PTI   FOR  SECOND-DEGREE   OFFENSES
              SHOULD NOT HAVE BEEN APPLIED TO THE
              THIRD-DEGREE OFFENSE OF POSSESSING
              DRUGS WITH INTENT TO DISTRIBUTE IN
              A SCHOOL ZONE.

                   B.   EVEN   IF   THE   SECOND-
              DEGREE-OFFENSE    PRESUMPTION   WAS
              THEORETICALLY APPLICABLE TO SCHOOL
              ZONE   OFFENSES,   THE   PROSECUTOR
              SHOULD NOT HAVE APPLIED IT TO
              JOHNSON, WHO WAS SIMPLY DRIVING
              THROUGH WHEN THE POLICE STOPPED HIM
              AND FOUND HEROIN.

                   C.   THE PRESUMPTION AGAINST
              PTI FOR THE "SALE" OF A NARCOTIC
              SHOULD NOT HAVE BEEN APPLIED TO
              JOHNSON BECAUSE HE WAS CHARGED WITH
              THE INTENT TO DISTRIBUTE, NOT AN
              ACTUAL SALE.

                              II.

    In Point I, defendant argues the trial court deprived him of

due process by deciding his motion based on a brief that was




                               8                         A-0625-15T1
missing pages and without hearing oral argument on the motion.    We

disagree.

     As a general rule, we would expect there to be oral argument

on such a motion. Defendant has not represented that oral argument

was requested, however.    Moreover, counsel was present on the

return date of the motion and there is nothing in the transcript

that reflects a request to be heard or the trial court's denial

of such a request.

     The letter brief that was submitted consisted of four pages,

numbered 1, 5, 6 and 7.    We have been provided with the missing

pages, 2, 3 and 4 and compared their contents to the facts and

arguments presented to the trial court in the letter brief and

from other sources.

     Page 2 begins with the completion of the procedural history

and proceeds to discuss defendant's personal circumstances, noting

his gainful employment, college studies, athletic talent, and

involvement with his nieces and nephews.   The page also includes

a number of expressions of defense counsel's personal belief that

defendant is a "a very worthy candidate for the PTI program."

     Pages 3 and 4 are the first two pages of defendant's legal

argument.   Approximately one-half of page 3 is a block quote from

Guideline 1, Guidelines for Operation of Pretrial Intervention in

New Jersey (Guidelines), Pressler & Verniero, Current N.J. Court

                                 9                         A-0625-15T1
Rules, following R. 3:28 at 1235 (2017), setting forth the purposes

of PTI.     Approximately one-third of page 4 is a block quote from

Guideline 2.    In the remaining text, counsel addresses (a) and (b)

of Guideline 1. He argues that, if defendant "can address whatever

problem that caused this aberrational behavior," services provided

to him could reasonably be expected to deter future criminal

behavior.      Reference   is   made   to   his   employment   and   college

matriculation and the negative consequences a criminal conviction

would have to him personally and to his job prospects.          The letter

brief concedes defendant's "application on its face might not

justify his admission into the PTI program,"              and presents a

conclusory statement that upon appropriate consideration of "all

of the compelling reasons previously submitted . . . it would

appear that . . . [defendant] meets the burden that is imposed by"

Guideline 2.

     Our review of the omitted pages within the context of the

submissions to the court and the trial court's detailed findings

of fact reveals no material fact or argument that was not before

the trial court.     We therefore discern no prejudice to defendant

arising from the omission of pages 2, 3 and 4.

                                   III.

     In Point II, defendant argues the trial court erroneously

"refus[ed] to excuse the lateness of" his PTI appeal.           The record

                                   10                                A-0625-15T1
fails to support this contention.                       Although the trial judge

acknowledged that defendant's appeal from the PTI rejection was

untimely, he addressed the merits of defendant's appeal and stated

reasons for his denial.           As a result, the argument presented in

Point II regarding "good cause" to enlarge the time in which to

file an appeal lacks any merit.                 R. 2:11-3(e)(2).

     Defendant       argues      in    the      alternative      that    counsel      was

ineffective    in    submitting        a     brief      that    was   missing     pages.

Generally,    ineffective        assistance        of     counsel     claims    are   not

entertained     on    direct      appeal        "because       such   claims    involve

allegations and evidence that lie outside the trial record." State

v. Preciose, 129 N.J. 451, 460 (1992).                  In this case, however, the

allegations and evidence are fully revealed by the record and it

is unnecessary to resort to matters outside the record to decide

this issue.

     To prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of establishing both that:

(l) counsel's performance was deficient and he made errors that

were so egregious that counsel was not functioning effectively as

guaranteed    by     the     Sixth      Amendment         to    the    United     States

Constitution;      and     (2)   the    defect       in    performance     prejudiced

defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional

                                           11                                    A-0625-15T1
errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052,

2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l05

N.J. 42, 52 (l987).

       Defendant contends the trial court "improperly decided" his

PTI appeal based upon an incomplete version of the defense brief

that "contained no excuse" for the untimely filing of the appeal

and    that    as   a   result,   the   trial    court   held    the    appeal   was

procedurally barred as untimely.                Even if we assume counsel's

performance in submitting an incomplete letter brief satisfied the

first Strickland prong, defendant cannot satisfy the second prong

because the trial judge addressed the merits of his appeal and

explicitly stated he found "the defendant's motion fails on the

merits."       This argument therefore lacks merit.

                                        IV.

       Finally, we turn to the merits of defendant's challenge to

the rejection of his PTI application.

                                         A.

       The prosecutor's decision to accept or reject a defendant's

PTI application is entitled to a great deal of deference, State

v. Roseman, 221 N.J. 611, 624-25 (2015); State v. Leonardis, 73

N.J.    360,    381     (1977);   and   may     be   overruled   only    when    the

circumstances         "'clearly   and   convincingly      establish      that    the

                                        12                                 A-0625-15T1
prosecutor's refusal to sanction admission into the program was

based on a patent and gross abuse of . . . discretion.'"             Roseman,

supra, 221 N.J. at 624-25 (citation omitted); see State v. Nwobu,

139 N.J. 236, 254 (1995) ("The question is not whether we agree

or   disagree   with   the    prosecutor's      decision,   but   whether   the

prosecutor's decision could not have been reasonably made upon

weighing the relevant factors.").

       In rendering the decision, the prosecutor must "make an

individualized assessment of the defendant" and consider whether

the defendant is amenable to rehabilitation.            Roseman, supra, 221

N.J.   at    621-22   (citation    omitted).      The   prosecutor    is    also

specifically required to consider the factors listed in N.J.S.A.

2C:43-12(e), State v. Lee, 437 N.J. Super. 555, 562 (App. Div.

2014).      When the prosecutor rejects a PTI application, N.J.S.A.

2C:43-12(f)     requires     the   prosecutor    to   "precisely   state    his

findings and conclusion which shall include the facts upon which

the application is based and the reasons offered for the denial."

See also State v. K.S., 220 N.J. 190, 198-99 (2014).

       "Any defendant charged with crime is eligible for enrollment

in a PTI program, but the nature of the offense is a factor to be

considered in reviewing the application."             Guideline 3(i).       When

the PTI Guidelines establish a rebuttable presumption against

admission based on the nature of the offense, the defendant must

                                      13                               A-0625-15T1
present "compelling reasons justifying the applicant's admission

and establishing that a decision against enrollment would be

arbitrary    and   unreasonable."         Ibid.        This   means    he     "must

demonstrate    something     extraordinary        or     unusual,     something

'idiosyncratic,' in his . . . background."             Nwobu, supra, 139 N.J.

at 252 (quoting State v. Jabbour, 118 N.J. 1, 7 (1990)).

                                     B.

     As we have noted, the State's letter rejecting defendant's

PTI application addressed the relevant statutory factors, made

specific    findings   as   to   relevant    aggravating       and    mitigating

factors, discussed defendant's arguments and clearly stated the

reasons for denying his application.         Addressing the nature of the

offense, N.J.S.A. 2C:43-12(e)(1), the rejection letter stated

defendant was presumptively ineligible due to the nature of the

charges against him, citing Calguiri, supra, 158 N.J. at 43.                     The

State also cited Guideline 3(i) as creating a presumption against

admission for defendants charged with "sale or dispensing . . .

of Schedule I or II narcotic drugs . . . by persons not drug

dependent."

     In Point III, defendant argues these presumptions against

admission to PTI were inapplicable to his case and that the

prosecutor's reliance upon them requires a remand.              Defendant did

not present this argument to the trial court. Instead, he accepted

                                    14                                      A-0625-15T1
the premise that a presumption against admission applied and argued

he had presented sufficient compelling reasons to warrant his

admission to PTI.    Because his argument that the prosecutor erred

in applying these presumptions is presented for the first time on

appeal, we need not address it.         See State v. Robinson, 200 N.J.

1, 19-20 (2009). However, we note that, for the following reasons,

we find the arguments unpersuasive.

      In Caliguiri, supra, 158 N.J. 28, 32 (1999), the prosecutor

refused a PTI application "solely" because the applicant was

charged with possession of marijuana with intent to distribute in

a   school   zone,   N.J.S.A.   2C:35-7.      The    Court   rejected   the

prosecutor's premise, but stated, "[a]lthough N.J.S.A. 2C:35-7

offenders are not categorically ineligible for PTI, there is a

presumption against diversion."         Id. at 42.

      Defendant argues the reasoning underlying this pronouncement

has been undermined by subsequent amendments to N.J.S.A. 2C:35-7,

which include the availability of non-custodial sentences.                No

case is cited, however, that supports his argument the Court's

instruction in Caliguiri is no longer viable.           To the contrary,

as recently as last year, we recognized Caliguiri as providing

guidance on how to interpret Guideline 3(i). See State v. Coursey,

445 N.J. Super. 506, 511 (App. Div. 2016).



                                   15                              A-0625-15T1
     Defendant also argues it was error and an abuse of discretion

to apply this presumption to him because he was neither engaged

in nor charged with a sale or distribution of heroin.                  The

defendant in Caliguiri was charged with possession of marijuana

with intent to distribute in a school zone under circumstances

that, like here, did not entail a drug transaction.          The fact the

Supreme    Court   nonetheless   found   the   presumption   against   PTI

eligibility applied to those facts renders defendant's argument

devoid of merit.

     We therefore conclude defendant's arguments challenging the

application of the presumption against PTI ineligibility lack

merit.    Although he has not challenged the decision that he failed

to present compelling reasons to override that presumption, we are

also satisfied the reasons presented fell short of the "compelling"

standard.   Finally, we also conclude the prosecutor's decision was

reasonably made upon a weighing of appropriate factors and should

not be disturbed.

     Affirmed.




                                   16                             A-0625-15T1
