                        NOT FOR PUBLICATION WITHOUT THE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-4896-14T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

AUSTIN P. BACINO,

     Defendant-Appellant.
_____________________________

              Submitted March 14, 2017 – Decided April 3, 2017

              Before Judges Reisner and Rothstadt.

              On appeal from the Superior Court of New
              Jersey, Law Division, Burlington County,
              Indictment No. 14-09-0926.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Joshua D. Sanders, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Robert   D.   Bernardi,   Burlington   County
              Prosecutor, attorney for respondent (Jennifer
              B. Paszkiewicz, Assistant Prosecutor, of
              counsel and on the brief).

PER CURIAM

        Defendant Austin P. Bacino appeals from his rejection from

the pre-trial intervention program (PTI).               We remand this case to
the PTI director and the prosecutor, to reconsider defendant's

application     and   render   a    written      decision   that     considers

defendant's individual circumstances.

       Defendant was indicted on charges of third-degree conspiracy

to distribute marijuana within 1000 feet of a school, N.J.S.A.

2C:5-2(a)(1) and N.J.S.A. 2C:35-7.1, and fourth-degree conspiracy

to distribute less than an ounce of marijuana, N.J.S.A. 2C:5-

2(a)(1) and N.J.S.A. 2C:35-5(a)(1).         He was also charged with two

disorderly persons offenses - loitering and violating a municipal

ordinance.     The PTI director rejected defendant's application on

October 24, 2014.       The director's statement of reasons relied

exclusively on the fact that defendant was charged with school

zone    drug   distribution,       which   was     "part    of   a   criminal

business/enterprise."     The statement noted that defendant's arrest

resulted from a lengthy investigation by law enforcement, and that

the execution of a search warrant revealed drug paraphernalia.

The prosecutor did not issue a separate decision.

       In his PTI appeal to the Law Division judge, defendant pointed

out that the rejection decision did not acknowledge that the search

related to premises owned by an older adult who was apparently the

ringleader in a drug distribution operation, and that defendant

did not live on the premises and was not arrested there.               He also

contended that the statement did not consider that defendant was

                                      2                                A-4896-14T3
not charged with school zone drug distribution but rather with

conspiracy.       Defendant further argued that the PTI director did

not take into account his individual characteristics, including

his relative youth at age twenty-one, the influence of his older

co-defendants, his lack of an adult criminal record, the fact that

the   crime    was     non-violent,       and     that   he     was     amenable       to

rehabilitation through PTI.

      In   response,     the    prosecutor's      office      submitted     a    letter

focusing on the culpability of Mr. and Mrs. Gregory, the couple

who were apparently the main targets of the police investigation

and who owned the premises that were the subject of the search

warrant.      However, the letter also cited evidence, albeit of

uncharged allegations, supporting a conclusion that defendant was

selling marijuana supplied by Mr. and Mrs. Gregory or their

associates.    The     State    contended       that   his    participation       in    a

criminal business enterprise sufficed to warrant his rejection

from PTI.

      The letter also baldly asserted, without citing any specifics

or    analysis,      that     the   PTI   director       must    have     considered

"defendant's      age,      employment    status,      education,     and   lack       of

criminal record."        The prosecutor offered no separate analysis or

indication that the prosecutor had considered those factors.                         The

letter did not even proffer an argument as to why defendant's

                                          3                                     A-4896-14T3
individual characteristics did not outweigh the seriousness of the

crime with which he was charged.

     At oral argument of the PTI appeal, the prosecutor conceded

that the director's decision was inartfully worded. The prosecutor

argued that in substance, the decision was adequate, but suggested

that if the judge believed that it was insufficient, the court

"could certainly remand it to criminal case management."                  In an

oral statement of reasons, the judge determined that it was not a

gross and patent abuse of discretion for the PTI director to rely

exclusively on defendant's participation in a criminal business

enterprise.      Thereafter, defendant entered into a plea agreement,

pled guilty to fourth-degree conspiracy to possess marijuana with

intent to distribute, and was sentenced to a year of probation.

     On this appeal, our review is limited. If a prosecutor's

decision evinces consideration of all appropriate factors, it will

not be disturbed absent a showing that it was a gross and patent

abuse of discretion.       State v. K.S., 220 N.J. 190, 200 (2015).

However, if the prosecutor - or the program director, on whose

decision the prosecutor relies - fails to consider all relevant

factors, a remand is appropriate.           Ibid.

     Having   reviewed    the   record,      we    conclude   that    remand   is

required.   We    acknowledge   that       the    PTI   Guidelines,   Guideline

3(i)(2), provides that if a defendant is charged with a crime that

                                       4                                A-4896-14T3
was "part of a continuing criminal business or enterprise" his or

her "application should generally be rejected."                 However, such a

defendant is still entitled to "present facts” demonstrating his

or   her   "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."          Ibid.    Moreover, "the program director and

prosecutor 'must actually consider the merits of the defendant's

application.'"       K.S., supra, 220 N.J. at 198 (quoting State v.

Green, 413 N.J. Super. 556, 561 (App. Div. 2010)).

      We   further    acknowledge         that,   "[a]bsent   evidence   to   the

contrary, a reviewing court must assume that all relevant factors

were considered by the prosecutor's office."              State v. Baynes, 148

N.J. 434, 444 (1997).          However, on this record, we can fairly

infer that no consideration was given to any factor other than

defendant's alleged participation in the Gregory family's ongoing

criminal business.          Because neither the PTI director nor the

prosecutor    gave    any    consideration        to   defendant's   individual

characteristics, or the list of factors set forth in N.J.S.A.

2C:43-12(e), which "[p]rosecutors and program directors shall

consider" in making a PTI recommendation, defendant was not given

a meaningful opportunity to meet his burden.              See K.S., supra, 220

N.J. at 198.

                                           5                             A-4896-14T3
     As in State v. Caliguiri, 158 N.J. 28 (1999), such a one-

sided evaluation of the PTI application warrants a remand:

          The   school   zone   statute    creates   the
          presumption against PTI, and cannot also
          provide the reason Caliguiri fails to overcome
          that presumption. To endorse the State's
          position would effectively create a de facto
          rule   against   PTI  for   N.J.S.A.   2C:35-7
          offenders. Rejection based solely on the
          nature of the offense is appropriate only if
          the offender fails to rebut the presumption
          against diversion.

          A remand is appropriate because the prosecutor
          failed to consider all the relevant factors.
          Caliguiri's application was rejected solely
          because he committed a school zone offense.

          [Id. at 43-44.]

     Accordingly, we remand defendant's PTI application to the

director for reconsideration, to be followed by evaluation and

reconsideration by the prosecutor.   We imply no view as to whether

defendant should be admitted to PTI, but only that the director

must consider the information defendant submits and render a

written decision evincing that consideration.      Thereafter, the

prosecutor must either issue a separate written decision or a

letter indicating reliance on the director's decision.     Defendant

will have the right to appeal to the Law Division if he is again

rejected from PTI.

     Remanded. We do not retain jurisdiction.



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