The New Jersey Supreme Court continued in relevant part:
Additionally, we find inapplicable the presumption against PTI for the “sale or dispensing” of a Schedule I or II narcotic, as it was set forth in Guideline 3(i). N.J.S.A. 2C:35-7(a) uses the terms “distribute” and “dispense” but does not use the term “sale.” A “sale” is “the transfer of property or title for a price.” Black’s Law Dictionary 1454 (9th ed. 2009). Whereas “distribute” is broader and can mean “to apportion,” “divide among several,” “spread out,” or “disperse.” Id. at 543. As the Appellate Division noted in Coursey, “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.” The Coursey panel concluded that “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’).”
Defendant was not charged with selling or dispensing narcotics because there was no evidence that he sold or dispensed narcotics. Imputing a presumption against PTI for a “sale” to defendant, who was charged with “possession with intent to distribute,” was improper.
The record before us makes clear that the prosecutor faithfully considered the factors found in N.J.S.A. 2C:43-12(e)(1) to (17), finding several militated against acceptance of defendant’s application for PTI. Nevertheless, because the prosecutor considered two inapplicable presumptions found in then-Guideline 3(i), the decision to deny defendant’s application must be reevaluated. We reverse the judgment of the Appellate Division and remand to the prosecutor for a fresh review of defendant’s application and, if need be, to the trial court for appropriate action following the prosecutor’s review.
This case demonstrates a trend towards expanding PTI eligibility with regard to drug-distribution cases. Last year the Court expanded eligibility with regard to marijuana distribution when it focused on the fact that marijuana is not classified as a schedule one or two narcotic under state law. Therefore, marijuana distribution cases do not invoke the presumption against admission.
