                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-1415-14T1

STATE OF NEW JERSEY,
                                              APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                    June 6, 2016
v.                                              APPELLATE DIVISION

ALFRED W. COURSEY, III,

     Defendant-Appellant.
___________________________

         Submitted April 26, 2016 - Decided June 6, 2016

         Before Judges Reisner, Hoffman and Leone.

         On appeal from the Superior Court of New
         Jersey,   Law    Division,  Salem County,
         Indictment No. 14-03-00121.

         Joseph E. Krakora, Public Defender, attorney
         for appellant (Elizabeth C. Jarit, Assistant
         Deputy Public Defender, of counsel and on
         the brief).

         John T. Lenahan, Salem County Prosecutor,
         attorney for respondent (Lisa M. Rastelli,
         Assistant Prosecutor, of counsel and on the
         brief).

     The opinion of the court was delivered by

REISNER, P.J.A.D.

     Defendant     Alfred    W.    Coursey,    III,      appeals    from    his

conviction   for    third-degree       possession   of   cocaine,    N.J.S.A.

2C:35-10(a)(1).     The     judgment     of   conviction     was    based    on
defendant's guilty plea, following his indictment for fourth-

degree     possession    of   marijuana     with     intent   to   distribute,

N.J.S.A.     2C:35-5(a)(1),     -5(b)(12),     and     third-degree    cocaine

possession.       Defendant was sentenced to one year of probation.

    Defendant's appeal focuses on the denial of his suppression

motion,    and     his   rejection   from    the     pre-trial     intervention

program (PTI).       He presents the following points of argument:

            I.     THE   COURT   ERRED  IN   DENYING  THE
                   DEFENDANT'S SUPPRESSION MOTION BECAUSE
                   THE TROOPER LACKED AUTHORITY TO MAKE A
                   WARRANTLESS ARREST BASED SOLELY ON THE
                   SMELL OF MARIJUANA.

            II.    THE     PROSECUTOR'S    REJECTION     OF
                   DEFENDANT'S ADMISSION INTO PTI WAS
                   BASED ON A CATEGORICAL BAN OF ADMISSION
                   FOR ALL PERSONS CHARGED WITH FOURTH-
                   DEGREE POSSESSION OF MARIJUANA WITH
                   INTENT    TO    DISTRIBUTE,    REQUIRING
                   REVERSAL    OF    THE   REJECTION    OR,
                   ALTERNATIVELY,      A     REMAND     FOR
                   RECONSIDERATION.

                   A.    BECAUSE THE PROSECUTOR APPLIED A
                         CATEGORICAL BAR TO ADMISSION BASED
                         ON THE OFFENSE CHARGED, A REMAND
                         IS REQUIRED FOR RECONSIDERATION.

                   B.    IN   ADDITION,  BECAUSE  GUIDELINE
                         3(I) DOES NOT LIST POSSESSION WITH
                         INTENT TO DISTRIBUTE CDS AS A
                         CRIME FOR WHICH THE PRESUMPTION
                         AGAINST ADMISSION ATTACHES, AND
                         BECAUSE MARIJUANA CAN NO LONGER BE
                         PROPERLY CLASSIFIED AS A SCHEDULE
                         I    SUBSTANCE,   THE   PROSECUTOR
                         APPLIED THE INCORRECT STANDARD FOR
                         DETERMINING ADMISSION.




                                      2                                A-1415-14T1
                   C.      EVEN IF NO CATEGORICAL BAR WAS
                           IMPOSED    AND    THE    PRESUMPTION
                           AGAINST   ADMISSION   APPLIES,   THE
                           PROSECUTOR'S       REJECTION      OF
                           COURSEY'S PTI APPLICATION WAS A
                           PATENT   AND    GROSS     ABUSE   OF
                           DISCRETION.

            III. A   REMAND  IS   REQUIRED  BECAUSE  THE
                 DEFENDANT WAS PRECLUDED FROM PRESENTING
                 EVIDENCE OF HIS DRUG DEPENDENCY, WHICH
                 WOULD HAVE NEGATED THE PRESUMPTION
                 AGAINST ADMISSIBILITY.

    Having reviewed the record in light of the applicable legal

standards,    we    affirm       the     denial    of    defendant's      suppression

motion.     However, because both the prosecutor's office and the

trial court mistakenly applied PTI Guideline 3(i) to fourth-

degree possession of marijuana with intent to distribute, we

reverse     the    order       denying    his     PTI    appeal    and    remand      for

reconsideration of his application by the prosecutor's office.

            [At the Court's direction, Part I of the
            opinion has been omitted from the published
            version.]


                                          II

    Next      we    address        defendant's          argument    concerning        his

exclusion    from       PTI.    The    prosecutor        relied    in    part   on    the

presumption against admission into PTI of non-addicts charged

with the sale or distribution of Schedule I or II narcotics.

See Guidelines for Operation of Pretrial Intervention in New

Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline



                                            3                                   A-1415-14T1
3(i), following R. 3:28 at 1193 (2016) (hereinafter Guideline

3(i)).      The      prosecutor   rejected     defendant's    PTI     application,

reasoning that the eighteen bags of marijuana, plus cocaine, and

about $500 in cash, found during the search, were evidence that

defendant    intended      to    sell   the   drugs   for   profit     and    not   to

support    an     addiction.      The   prosecutor    noted     the    absence      of

evidence that defendant was a drug addict or possessed those

amounts of drugs for personal use.               In denying defendant's PTI

appeal the trial court relied on the same presumption against

PTI    admission,        based    on    defendant's     being       charged      with

possession of marijuana with intent to distribute.

       We conclude that the prosecutor erred in applying Guideline

3(i), because 3(i) does not apply to third or fourth-degree

marijuana possession with intent to distribute.                       Cf. State v.

Caliguiri, 158 N.J. 28, 32, 43 (1999) (third-degree marijuana

possession with intent to distribute in a school zone, N.J.S.A.

2C:35-7,        an     offense     "carrying      a     mandatory        term       of

imprisonment[,]" can be treated as included in Guideline 3(i)).

       The applicable PTI Guideline applies a presumption against

PTI eligibility for defendants charged with crimes of violence,

organized crime, breach of the public trust, or with some of the

most     serious      drug-related      offenses.     Guideline       3(i).         In

pertinent part it provides:




                                          4                                  A-1415-14T1
             A defendant charged with a first or second
             degree offense or sale or dispensing of
             Schedule I or II narcotic drugs as defined
             in L. 1970, c. 226 (N.J.S.A. 24:21-2 et
             seq.) by persons not drug dependent, should
             ordinarily not be considered for enrollment
             in a PTI program except on joint application
             by   the   defendant  and    the   prosecutor.
             However, in such cases, the applicant shall
             have the opportunity to present to the
             criminal division manager, and through the
             criminal division manager to the prosecutor,
             any facts or materials demonstrating the
             applicant's      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.

             [Guideline 3(i) (emphasis added).]

      As previously noted, Guideline 3(i), by its terms, applies

to   violent   offenses    and    other       "serious    or    heinous     crimes."

State v. Watkins, 193 N.J. 507, 514 (2008).                        The enumerated

offenses "represent a legislative decision to prevent serious

offenders from avoiding prosecution in ordinary circumstances."

Caliguiri, supra, 158 N.J. at 42.                  The listed offenses include

"sale   or   dispensing    of    Schedule      I    or   II    narcotic   drugs    as

defined in . . . N.J.S.A. 24:21-1 et seq."                Guideline 3(i).

      Marijuana is still included in the definition of a Schedule

I    controlled    dangerous      substance         (CDS).       N.J.S.A.     24:21-

5(e)(10); see Myers, supra, 442 N.J. Super. at 298, 302-04.

However,     marijuana    is    not   a   "narcotic      drug"    as   defined     in




                                          5                                 A-1415-14T1
N.J.S.A.    24:21-2        (defining      "narcotic       drug"    as    "[o]pium,       coca

leaves, and opiates," as well as related substances).                            Moreover,

possession with intent to distribute is not technically a sale,

nor is it "dispensing" as defined in N.J.S.A. 24:21-2 (defining

to "dispense" as to deliver a CDS "subject by or pursuant to the

lawful order of a practitioner").

      The Supreme Court in Caliguiri provided guidance on how to

interpret Guideline 3(i) generally and in this instance.                                     In

Caliguiri, the Court addressed the application of Guideline 3(i)

to a defendant charged with possession of marijuana with intent

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

crime.      Caliquiri,          supra,    158      N.J.    at     42-43.        The     Court

concluded    that,     because      the     Legislature         had    chosen    to     treat

school zone drug offenses as particularly serious crimes, by

giving them a penalty structure "'similar to that for second-

degree     offenses,'"          including    a        mandatory    prison       term,       the

defendant    should        be   subject     to    3(i),    as     though   he    had     been

charged    with   a    second-degree         drug       offense.        Id.     at    32,    43

(quoting State v. Baynes, 148 N.J. 434, 449 (1997)).                                 Clearly,

if   possession       of    marijuana       with       intent     to    distribute       were

already included in 3(i), the Court would not have needed to

consider that issue.              Hence, we infer that the Court did not

consider    ordinary       third-degree          or    lower    charges    of    marijuana




                                             6                                       A-1415-14T1
possession   with   intent   to   distribute   as   being   covered   by

Guideline 3(i).     In light of Caliguiri, and given the remedial

purpose of PTI, we will not construe Guideline 3(i) as applying

to the relatively low-level offenses of non-school-zone third or

fourth-degree possession of marijuana with intent to distribute.

See N.J.S.A. 2C:43-12(a); State v. Roseman, 221 N.J. 611, 621-22

(2015); Watkins, supra, 193 N.J. at 513.1




1
  Based only on its wording, it is not clear whether Guideline
3(i) applies to possession of Schedule I and II narcotics with
intent to distribute, or only to the "sale" of those narcotics.
The term "distribute" includes both selling or sharing CDS. See
N.J.S.A. 24:21-2; State v. Roach, 222 N.J. Super. 122, 126-27
(App. Div. 1987), certif. denied, 110 N.J. 317 (1988). The
pertinent criminal statute, N.J.S.A. 2C:35-5, makes it unlawful
"[t]o manufacture, distribute or dispense, or to possess . . .
with intent to manufacture, distribute or dispense, a controlled
dangerous substance."   N.J.S.A. 2C:35-5(a)(1) (emphasis added).
Guideline 3(i) does not track the language of N.J.S.A. 2C:35-
5(a)(1), because it only refers to "sale," which is a subset of
"distribute," and it does not list possession with intent.    On
the one hand, it is possible that 3(i) intentionally listed only
the "sale" of CDS because it was aimed at persons who sell drugs
for profit, as opposed to individuals who share CDS with
companions.    On the other hand, under N.J.S.A. 2C:35-5(b),
possession with intent to distribute the listed drugs is the
same degree crime as the sale of those drugs, suggesting that
under Caliguiri's rationale 3(i) would, for example, apply to
possession with intent to distribute heroin equally with the
sale of heroin.   Because marijuana is plainly not a "narcotic
drug" within the meaning of 3(i), and because Caliguiri did not
consider third-degree possession of marijuana with intent to
distribute to be itself sufficient to trigger 3(i), we need not
definitively address the issue in this case. However, we refer
this issue to the Criminal Practice Committee for its
consideration.




                                   7                           A-1415-14T1
       A defendant charged with one of the crimes included in

Guideline    3(i)    faces        a    significant          hurdle      to    PTI   admission,

which    other    applicants           need    not       surmount.       Accordingly,            the

mistaken    application           of    Guideline          3(i)    to    a     defendant         not

charged with one of the included crimes constitutes a gross and

patent    abuse    of     the     prosecutor's            discretion.           See    Roseman,

supra, 221 N.J. at 627; State v. Bender, 80 N.J. 84, 93 (1979).

       In this case, the prosecutor applied the presumption of PTI

ineligibility to defendant, based on his having been charged

with     fourth-degree        possession            of    marijuana          with   intent        to

distribute, N.J.S.A. 2C:35-5(b)(12).                         The trial court applied

the presumption as well.                    That error requires that we reverse

the PTI order on appeal and remand this case to the prosecutor

for reconsideration ab initio.                   See Roseman, supra, 221 N.J. at

629; Bender, supra, 80 N.J. at 97.

       In addition to challenging the prosecutor's PTI decision,

defendant    argues       that        his     trial      counsel     was      ineffective         in

failing    to     bring      to   the       prosecutor's          attention         defendant's

substance abuse problems.                     We also note          that, in sentencing

defendant, the trial judge did consider his drug problem as a

mitigating factor.            Even if not required to address Guideline

3(i),    evidence       of   a    defendant's            drug     dependency        may     be   an

important factor in a PTI application.                              See N.J.S.A.            2C:43-




                                                8                                         A-1415-14T1
12(a)(1).     To avoid a miscarriage of justice, we direct that, as

part   of   the   prosecutor's    reconsideration     of   defendant's     PTI

application, defendant shall be given an opportunity to submit

to   the    prosecutor   any   available   evidence    that   he   was    drug

dependent at the time he committed the offenses with which he

was charged.2      Given the passage of time, and our requirement

that the review be ab initio, defendant may also bring to the

prosecutor's attention any other pertinent information bearing

on his PTI application.          See State v. Randolph, 210 N.J. 330,

354 (2012).

       Affirmed in part, reversed and remanded in part.            We do not

retain jurisdiction.




2
  In light of our disposition of this appeal, we                   need    not
consider defendant's additional appellate arguments.



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