NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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[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
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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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