                                NOT FOR PUBLICATION WITHOUT THE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-2999-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CRYSTAL NURSE,

     Defendant-Appellant.
________________________

                    Argued December 5, 2018 - Decided July 12, 2019

                    Before Judges Fuentes, Accurso, and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 13-05-1225.

                    Michael T. Denny, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Michael T. Denny, of
                    counsel and on the brief).

                    Barbara A. Rosenkrans, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens II, Acting Essex
                    County Prosecutor, attorney; Barbara A. Rosenkrans,
                    of counsel and on the brief).
PER CURIAM

      Defendant Crystal Nurse is a thirty-nine-year-old Trinidad and Tobago

national who immigrated to the United States at age thirteen and is now a lawful

permanent resident of this country. In the summer of 2012, she travelled to her

country of birth to celebrate her birthday with her longtime friend Dion Boxil,

with whom she was romantically involved at the time. Upon her return to this

country on August 12, 2012 at Newark International Airport, a customs official

conducting a routine search of her luggage found three pounds of powder

cocaine concealed in the lining of a separate leather portfolio inside her carry -

on suitcase.

      Defendant claimed she was unaware of the illicit nature of the contents of

the leather case because the cocaine was packaged to look like candy. She

willingly cooperated with the federal law enforcement investigators who

responded to the airport. She claimed she and Boxil originally flew to Trinidad

and Tobago on a one-way ticket to save money.       Once there, Boxil asked his

cousin Kyle Joseph to help them obtain a return ticket at a low price. Defendant

alleged Joseph asked her to take a leather attaché case with candy to a woman

friend of his who lived in the United States. Defendant emphatically denied any

complicity in or knowledge about this stratagem to smuggle cocaine. Boxil


                                                                          A-2999-16T1
                                        2
corroborated defendant's account. The record also shows defendant cooperated

fully with federal investigators.       Federal authorities declined to assert

jurisdiction over this matter.

      On May 28, 2013, an Essex County grand jury returned an indictment

charging defendant with third degree possession of cocaine, N.J.S.A. 2C:35 -

10(a)(1) and first degree possession of cocaine with intent to distribute, N.J.S.A.

2C:35-5(a)(1), (b)(1).    Pursuant to Rule 3:28(h), a defendant must file an

application for admission into the Pretrial Intervention (PTI) program " at the

earliest possible opportunity, including before indictment, but in any event no

later than twenty-eight days after indictment." (Emphasis added). Defendant

filed her PTI application on September 11, 2015, more than two years after she

was indicted.

      The vicinage's Criminal Division Manager (CDM) must review a

defendant's PTI application and make a recommendation on her or his suitability

for admission with twenty-five days. Ibid. Here, the CDM reviewed defendant's

untimely application on February 27, 2015, and September 17, 2015, and both

times recommended against her admission into the program. The CDM noted

defendant: (1) did not have any prior involvement with the criminal justice

system; (2) had a bachelor's degree in forensic psychology; (3) was the single


                                                                           A-2999-16T1
                                        3
parent of a teenaged girl; (4) had a steady history of gainful employment; and

(5) did not have any history of substance abuse.           Despite these positive

indicators of suitability for admission into PTI, the CDM's principal, and in this

case dispositive, factor for denying defendant's application was the nature of the

offense. As the CDM explained: "Ms. Nurse is charged with a first degree

offense.   Such offenses carry a presumption of imprisonment and your

submission has not shown compelling reasons justifying your admission. . . ."

      Rule 3:28(h) requires the prosecutor to "complete a review of the

application and inform the court and defendant within fourteen days of the

receipt of the criminal division manager's recommendation." Here, in a letter

addressed to defense counsel dated October 8, 2015, the prosecutor explained

the State's position against admitting defendant into PTI.           Although the

prosecutor found a number of significant factors favoring defendant's admission

into the program, he ultimately concluded she did not provide "compelling

reasons" to overcome the presumption of ineligibility associated with a first

degree offense:

            Defendant's crime of distribution highlights the fact
            that she is charged with a first degree offense and was
            involved in distribution despite not being a user or
            being drug dependent herself. Guideline 3(i) of [Rule]
            3:28. Although not the only factors relied upon, under
            these circumstances, this Office is justified in basing its

                                                                          A-2999-16T1
                                        4
            rejection solely on these presumptions against
            defendant's admission. See State v. Caliguiri, 158 N.J.
            28, 36 (1999) [(]citing State v. Baynes, 148 N.J. 434,
            445-47 (1997)[)].

      On January 25, 2016, defendant appealed the prosecutor's and CDM's

denial to the judge assigned to try the case pursuant to N.J.S.A. 43-12(f) and

Rule 3:28(h). Both defendant and the prosecutor submitted letter-briefs that

expressed their respective positions. However, the judge assigned to manage

the case proceeded to trial without conducting a hearing to address and decide

the pending appeal. On February 3, 2016, the first day of trial, the trial judge

made the following statement: "But regarding the PTI situation, it's denied for

the reasons set forth on Rule 3:28(h). Also, State v. Morales-Pen, 386 [N.J.

Super.] 569, 577-78 ([App. Div.] 2006). That's all."

      Against this record, defendant raises the following arguments:

            POINT I

            THE COURT ERRED BY DENYING THE PTI
            APPEAL MOTION WITHOUT A HEARING AND
            SOLELY ON PROCEDURAL GROUNDS.

            POINT II

            THE PROSECUTOR'S REJECTION OF NURSE'S PTI
            APPLICATION CONSTITUTED A PATENT AND
            GROSS ABUSE OF DISCRETION BECAUSE HE
            FAILED TO CONSIDER ALL OF THE RELEVANT
            FACTORS, RESULTING IN A CLEAR ERROR OF

                                                                        A-2999-16T1
                                       5
              [JUDGMENT] WHICH SUBVERTED THE GOALS
              UNDERLYING THE PTI PROGRAM.

              POINT III

              DEFENSE   COUNSEL       WAS    INEFFECTIVE
              BECAUSE THE FACTUAL BASIS ELICITED FOR
              THE  THIRD-DEGREE       DRUG    POSSESSION
              CHARGE     INCLUDED         MANY     FACTS
              UNNECESSARY FOR THE PLEA. THIS ERROR
              NOT ONLY MADE NURSE AUTOMATICALLY
              DEPORTABLE, BUT ALSO INELLIGIBLE TO
              OBTAIN CANCELLATION OF REMOVAL OR
              DEPORATION. (Not Raised Below)

        After we heard oral argument from counsel in this appeal, our Supreme

Court decided State v. Johnson, ___ N.J. ___ (2019). Pursuant to Rule 2:6-

11(d)1, defendant's appellate counsel submitted a letter to this court noting that

the Supreme Court clarified in Johnson that the presumption against admission

into PTI does not apply to persons charged only with first or second degree



1
    Rule 2:6-11(d) provides, in relevant part:

              Letter to Court After Brief Filed. No briefs other than
              those permitted in paragraphs (a) and (b) of this rule
              shall be filed or served without leave of court. A party
              may, however, without leave, serve and file a letter
              calling to the court's attention, with a brief indication
              of their significance, relevant published opinions
              issued, or legislation enacted or rules, regulations and
              ordinances adopted, subsequent to the filing of the
              brief.
                                                                          A-2999-16T1
                                         6
possession of illicit narcotics with intent to distribute. Johnson, ___ N.J. ___

(2019) (slip op. at 15-16).

      We agree. As was the case with the defendant in Johnson, defendant here

is not charged with selling or dispensing cocaine. She is charged with first

degree possession of three pounds of cocaine with intent to distribute. The case

thus must be remanded for the State and the CDM to reevaluate defendant's PTI

application without a presumption against admission.       We also agree with

defendant that the trial judge erred by summarily deciding defendant's appeal

without providing the attorneys the opportunity to present oral argument and

without providing a reasoned, narrative explanation for his decision, as required

by Rule 3:29.

      Reversed and remanded. We do not retain jurisdiction.




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