While the plain language of our criminal code does not distinguish between theses two very different types of “distribution”, the unique features of a PTI applicant’s case must be considered. See Nwobu, at 255 (holding that PTI decisions are primarily individualistic in nature and a prosecutor must consider an individual defendant’s features). Logic dictates that most anyone who regularly consumes marijuana will at some point “distribute” it under our criminal code’s very broad definition of “distribution.” For example, the mere passing of a marijuana cigarette between friends qualifies as distribution. A rigid application of that broad definition of “distribution” in the context of a PTI application will thus have the effect of excluding many applicants who are truly victimless users who happened to be “distributing” in the most technical sense of the word at the time of their arrests. This would undermine one of the five principle purposes of of PTI, permitting the least burdensome form of prosecution possible for victimless offenders. See R. 3:28, Guideline 1(c).
Even when dealing with bona fide cases of “drug distribution” within the meaning of Guideline 3(i), the rebuttable presumption against PTI admission still does not apply when the defendant was “drug dependent” at the time that he was charged. Under those circumstances, if a defendant is willing to successfully complete drug treatment as a condition of PTI, they should be admitted. The program would therefore provide sufficient deterrence without the need for the additional stigma of having a felony conviction on the applicant’s record. Indeed, many applicants facing PTI rejection should be admitted consistent with R. 3:28, Guidelines 1(b)and(d) because their rejection would undermine the recognition that “diversion in appropriate circumstances can serve as sufficient sanction to deter future criminal conduct” and that PTI is appropriate “when no extensive need for rehabilitative services can be discerned.”
