A recent Appellate decision in the case of State v. Alfred Coursey cleared up an ambiguity regarding PTI admission for defendants charged with third and fourth degree possession of marijuana with the intent to distribute. The decision reinforced a position that has been successfully argued by Fred Sisto during PTI rejection appeals at the trial court level. PTI Guideline 3(i) provides that defendants charged with “sale or dispensing of Schedule I or II narcotic drugs as defined in . . . N.J.S.A. 24:21-1 et seq.” are presumptively ineligible for PTI participation. While marijuana is still classified as a Schedule I drug, the Coursey Court recognized that it is not a “narcotic drug” as defined in N.J.S.A. 24:21-2 (defining “narcotic drug” as “[o]pium, coca leaves, and opiates,” as well as related substances). Moreover, in the case of “possession with intent to distribute” charges, as opposed to distribution charges, the presumption against admission does not apply because possession with intent 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”). Therefore, the defendants charged with non-school-zone third of fourth degree possession with intent to distribute marijuana are not subjection to the presumption against PTI admission. The relevant portion of the Court’s opinion is as follows:
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:
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.
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 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 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.
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:43-12(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. 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).