PTI and School Zone Drug Distribution (Part 1)

On May 30, 2019, the New Jersey Supreme Court decided the case of State v. Davon Johnson. The principal issue was whether a third-degree possession of a controlled substance in a school zone charge makes an applicant presumptively ineligible for the Pre-trial Intervention program (P.T.I.) under N.J.S.A. 2C:43-12. Justice Timpone wrote for a unanimous Court and held in relevant part as follows:

In Baynes, we recognized that the penalty structure for violations of N.J.S.A. 2C:35-7 was similar to that for second-degree offenses for which admission to PTI is presumptively unavailable. And, in Caliguiri, we found the “especially stern punishments” for N.J.S.A. 2C:35-7 offenders, “in light of the general tenor of the CDRA and the goals of the PTI Guidelines,” countenanced allowing prosecutors to apply the presumption against PTI to second-degree offenders.

But our decision then was based on a sentencing structure that has since evolved. In 2009, the Legislature altered N.J.S.A. 2C:35-7 by enacting a new subsection (b). L. 2009, c. 192, § 1. Even though the mandatory minimums were maintained, N.J.S.A. 2C:35-7(b) now authorizes courts to “waive or reduce the minimum term of parole ineligibility required under subsection a.,” or to “place the defendant on probation pursuant to paragraph (2) of subsection b.” Before waiving or reducing the period of parole ineligibility, courts must consider four enumerated factors:

1. The extent and seriousness of the defendant’s criminal history;
2. The proximity to school property and “the reasonable likelihood of exposing children to drug-related activities,”;
3. “Whether school was in session at the time of the offense,”; and
4. “Whether children were present at or in the immediate vicinity” of the offense.

N.J.S.A. 2C:35-7(b)(2) bars courts from waiving or reducing the minimum term of imprisonment, or imposing probation, if the offense occurred while on school property or involved the threat or use of violence or a firearm. N.J.S.A. 2C:35-7(b)(2)(a)-(b).

Caliguiri‘s determination that the presumption against PTI for first- and second-degree offenses should encompass third-degree school zone offenses, although well-reasoned at the time, is no longer consistent with the Legislature’s intent. Based on the changed statutory language and the Legislature’s clear intent in amending N.J.S.A. 2C:35-7, we hold the presumption against PTI for first- and second-degree offenders can no longer be applied to N.J.S.A. 2C:35-7(a) offenders. Because the prosecutor relied, in part, on the presumption against PTI for second-degree offenses, we believe it appropriate to remand defendant’s application to the prosecutor to reconsider defendant’s application. We disturb no other portion of Caliguiri.

Factor one should weigh in favor of the defendant under PTI application purposes. The vast majority of PTI applicants have very few contacts with the court system and have never used a similar diversionary program in New Jersey.