SUPERIOR COURT OF NEW JERSEY
                            APPELLATE DIVISION
                            A-6157-93T5

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

    v.

KEVIN FITZSIMMONS,

    Defendant-Appellant.
_________________________________________________

        Submitted October 24, 1995 - Decided December 26, 1995

        Before Judges Pressler, Keefe and A.A. Rodríguez.

        On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

        Brian J. Neary, attorney for appellant (Mr. Neary, of counsel and on the brief; Yung-Mi Lee, on the brief).

        Charles R. Buckley, Acting Bergen County Prosecutor, attorney for respondent (John J. Scaliti & Stuart Minkowitz, Special Deputy Attorneys General, of counsel and on the letter brief).

        The opinion of the court was delivered by

KEEFE, J.A.D.

    On the State's motion for reconsideration, the Law Division judge reversed his prior ruling and rejected defendant's application for participation in the Pre-trial Intervention Program ("PTI"). Thereafter, defendant pled guilty to two counts of third degree burglary in connection with an accusation, and also pled guilty to third degree distribution of a controlled

dangerous substance and distribution of a controlled dangerous substance within 1,000 feet of school property in connection with an indictment. Pursuant to the plea agreement, a second Law Division judge imposed a sentence of five years probation on the condition that defendant enter into a ninety day inpatient drug rehabilitation program.
    Defendant now appeals from the Law Division judgment denying his participation in PTI. He contends that the judge erred by entertaining the State's motion for reconsideration out-of-time, and, alternatively, that the prosecutor's rejection of defendant's participation in PTI constitutes a clear error of judgment and gross abuse of discretion. We agree with defendant's contentions and reverse.
    This is the second time this matter comes before us. On the first occasion, the State appealed from a Law Division judgment holding that the State had abused its discretion in rejecting defendant's participation in PTI. That judge ordered defendant's participation in PTI on certain conditions. The judge's reasons are contained in the following passage taken from his bench opinion of April 30, 1993.
        The Court finds that the State has abused [it's] discretion by failing adequately to account for the self-willed, vigorous rehabilitation that this defendant has undergone. The Court also finds that the State has considered irrelevant factors by suggesting the fear of the victims, but producing no indication from the victims that they, in fact, fear this young man; and by suggesting that because the drug problem existed for sometime in his life prior to

these arrests, it is not likely to be eradicated in the thirteen months.

    At the time the first Law Division judgment was entered, the two burglary charges stemming from the incidents of March 13, 1992 and April 7, 1992 were the only formal charges pending against defendant. However, the judge was aware of the fact that drug distribution charges, stemming from incidents that occurred on March 27, 1992 in the same county, were pending without formal disposition having been made by way of indictment. Although the charges were not formally before the court at that time, the judge considered those charges in coming to his conclusion concerning defendant's qualification for participation in PTI.See footnote 1
    In our unreported opinion of September 28, 1993, we also considered the burglary charges which were the subject of the PTI application as well as the drug charges, and observed that all of the events took place during a "three-week crime spree, [when] defendant was only three or four months past his eighteenth birthday."See footnote 2 We further noted that defendant had no prior record of juvenile delinquency, but had apparently been a substance abuser since the age of twelve. We further agreed with the trial judge that, in recognition of his drug problems, defendant had, since his arrest, participated in "an impressive and apparently successful rehabilitation program."

    However, we viewed the prosecutor's rejection of defendant's participation differently than the Law Division judge. Instead of finding that defendant's rejection resulted from prosecutorial abuse of discretion, we concluded that the prosecutor simply erred in considering all relevant factors necessary to make the proper judgment. We did so because our review of the record satisfied us that "one of the major reasons for [the prosecutor's] denial was the concern that the short-term supervision characteristic of PTI admission would be inadequate to insure defendant's rehabilitation." We were concerned that the prosecutor was laboring under the view that PTI supervision could be ordered only for one year. We noted that N.J.S.A. 2C:43-13c was amended by L.1988, c. 44 to extend the maximum allowable period of PTI supervision from one to three years. However, because the court rule had not yet been amended to conform to the statute, we were concerned that the prosecutor may have overlooked the amendment when he used the phrase in expressing concern about the limits of available "short-term" PTI supervision.
    Thus, we remanded the matter to the prosecutor for further consideration, State v. DeMarco, 107 N.J. 562, 567 (1987), with the following observation for guidance on remand.
        We understand that in the prosecutor's judgment the negative considerations could not be outweighed by short-term supervision. But we think it clear that the opportunity for extended supervision may be of sufficient significance to change the balance not only in terms of the ultimate success of defendant's rehabilitation program and the

permanence of his recovery but also in terms of the prosecutorial assessment of defendant's likelihood of committing additional crimes - an assessment which is not fairly supported by this record. In sum, because individual evaluation is at the heart of PTI evaluation, the possibility of an extended supervision may induce the prosecutor to take a more generous approach to this defendant. We are also of the view that that possibility will require the prosecutor to focus, as he should, on the issue of whether despite defendant's remarkable rehabilitation, the countervailing public interest nevertheless demands prosecution of these third-degree offenses.

We also recommended a formal consolidation of defendant's PTI application in connection with the drug charges with the PTI application stemming from the burglary charges.
    On remand, defendant supplemented the record with respect to his continued success in the drug rehabilitation program in which he was enrolled. Defendant was, nonetheless, rejected. The matter came before another Law Division judge on November 16, 1993. Briefs were filed by both sides. Simply stated, the State's position was that "to admit this defendant into PTI for any length of time would not serve the public interest because it would depreciate the serious nature of the offenses he committed."
    After entertaining argument, the Law Division judge concluded that the State had presented no new evidence or arguments and nothing had changed factually, except that there was evidence that defendant was making more progress in his drug rehabilitation program. He concluded that the prosecutor's denial of defendant's participation in the program amounted to an

abuse of discretion and ordered defendant's admission into the program on certain conditions. The judge requested the prosecutor to prepare the order.
    No order was prepared in compliance with the judge's directive. Instead, on January 13, 1994, the State filed a motion for "reconsideration" of the judge's decision. Defendant opposed the motion on the ground that it was untimely under R. 1:7-4. Defendant also contended that the motion was improper because the State's arguments were essentially a re-hash of its prior, unsuccessful arguments.
    The Law Division judge held that, although the motion was not filed within time, R. 1:1-2 permitted him to relax the ten day time period. He then reversed his prior decision. In essence, he held that his November 16, 1993 decision was based upon "fundamental fairness," whereas the true test was whether the prosecutor abused his discretion in rejecting defendant's application. He said that he was satisfied, after reviewing the same documents again, that no such abuse of discretion was shown.
    The Law Division judge was incorrect in stating that he could relax the ten day limitation set forth in R. 1:7-4. R. 1:3-4(c) specifically prohibits the parties and the court from enlarging the time specified by R. 1:7-4. However, the error is of no moment for two reasons. First, the ten day period provided in the rule does not begin to run until there is "service of the final order or judgment upon all parties by the party obtaining it . . . ." R. 1:7-4. No final order or judgment was submitted

to the judge for execution. Thus, the ten day period did not begin to run. Secondly, and more importantly, R. 1:7-4 simply did not apply to the State's motion. In criminal matters, R. 1:7-4 applies only where the application is to have the judge "find the facts specially" after the judge has made a general finding on the issues before the court. The State did not complain in this case that the Law Division judge failed to make findings of fact to support his November 16, 1993 decision.
    Motions for reconsideration are specifically recognized only in the rules that govern civil practice in the Superior Court, Tax Court and Surrogate's Courts. R. 4:49-2. There is no corollary rule applicable to practice in the criminal courts. In any event, the purpose of R. 4:49-2 is not to re-argue the motion that has already been heard for the purpose of taking the proverbial second bite of the apple. Rather, its purpose is to allow the losing party to make "a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." R. 4:49-2. Assuming the rule is applicable to criminal practice, the State's motion here was not made for the purpose stated in the rule. Rather, the State, for the most part, simply re-stated the arguments made at length on November 16, 1993.
    In our view, the Law Division judge should not have entertained the State's motion, inasmuch as there was no authority for him to do so. However, we choose not to decide this case on procedural grounds. Rather, we hold that the

State's conduct in this matter exhibits a patent abuse of discretion.
    In our view, the State's significant shift in position relative to defendant's drug dependency from the first hearing on the motion, through the remand hearing, to the reargument on the motion, evidences its patent abuse of discretion. As noted in our first opinion on this matter, defendant presented credible and forceful evidence of his long standing substance abuse problems, their relationship to his criminal activity, and his significant rehabilitation efforts in that regard. In the first hearing on defendant's PTI application, the State advised the Law Division judge that it did not choose to have an independent expert evaluate defendant's condition. The State's position was that defendant had a "long-term drug problem," and it feared that the drug program in which defendant was enrolled was not restrictive enough to prevent defendant from access to drugs. Further, in view of that belief, the State argued that defendant was "a poor risk" because he was "not amenable to treatment." Then, on remand from this court, instead of focusing on the thirty-six month supervision factor as a component of defendant's drug rehabilitation as we instructed, the State chose a different tack. While maintaining that a three year supervision period would not be sufficient supervision for an individual who has such a lengthy history of substance abuse, the State argued inconsistently that "his substance abuse problem is suspect,"

contending that could be the explanation for why defendant was doing so well in the drug rehabilitation program.
    The State's argument is disingenuous at best and clearly unsupported by the record. Rather, it is quite clear that defendant, who had just turned eighteen shortly before the criminal events in which he was involved, has had a long term substance abuse problem. His criminal conduct, though serious, occurred within a three week period and was related to his substance abuse dependency. His participation and progress in the drug rehabilitation program exhibit defendant's acknowledgement of his problem and remorse for his conduct. There is absolutely no evidence that this defendant poses a risk to the public. The victims of his burglaries were his neighbors, all of whom he knew. There is no evidence that they have expressed any fear of recurring criminal activity on defendant's part. The State's mischaracterization of the record and unfounded skepticism concerning defendant's rehabilitation efforts amount to a clear error of judgment. State v. Mickens, 236 N.J. Super. 272 (App. Div. 1989).
    The judgment under review is reversed. The matter is remanded for the entry of an appropriate order permitting defendant's continued participation in the PTI program.

                            SUPERIOR COURT OF NEW JERSEY
                            APPELLATE DIVISION
                            A-6157-93T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

    v.

KEVIN FITZSIMMONS,

        Defendant-Appellant.
______________________________________________

        Submitted October 24, 1995 - Decided December 26, 1995
        Remanded by Supreme Court - March 12, 1996
        Resubmitted March 14, 1996 - Decided June 12, 1996

        Before Judges Pressler, Keefe and A.A. Rodríguez.

        On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

        Brian J. Neary, attorney for appellant (Mr. Neary, of counsel and on the brief; Yung-Mi Lee, on the brief).

        Charles R. Buckley, Acting Bergen County Prosecutor, attorney for respondent (John J. Scaliti & Stuart Minkowitz, Special Deputy Attorneys General, of counsel and on the letter brief).

        The opinion of the court was delivered by

KEEFE, J.A.D.

    This matter has been remanded by the Supreme Court for us "to consider the point raised in [the State's] petition that the judgment below conflicts with [the] Court's decision in State v. Nwobu, 139 N.J. 236 (1995)."

    Nwobu was cited in the State's appellate brief. We, therefore, were aware of the decision and the elements set forth therein which are prerequisites for concluding that the prosecutor's denial of defendant's application for admission to PTI resulted from a "clear error of judgment." Id. at 247 (quoting State v. Bender, 80 N.J. 84, 93 (1979)). We regret that we did not couch our opinion in the terms or context of Nwobu but do so now.
    We acknowledge that one of the drug offenses charged against defendant was a second degree crime, and that "compelling reasons" must be established to overcome the presumption against PTI. Nwobu, supra, 139 N.J. at 252. Nonetheless, unless complete deference must be given to the prosecutor when second degree crimes are involved to the point that the presumption becomes an irrebuttable one, we are satisfied that, in this case and with respect to this defendant, the prosecutorial decision was so "clearly unreasonable as to shock the judicial conscience," and that "the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)).     
    The crimes charged against defendant were committed by him when he was just two months past his eighteenth birthday, and all within a three week period. Defendant had no juvenile record. While not diminishing the seriousness of the offenses, defendant's conduct, at best, demonstrates a "momentary loss of moral resolve." Id. at 254. All of the offenses were motivated

by defendant's severe drug addiction which began when he was twelve years old. The State was given the opportunity to have defendant examined to determine the bona fides of his assertion of drug dependency. However, it eschewed the opportunity at the first hearing in this matter, preferring instead to accept the assertion, and argue against PTI on the ground that the length of PTI supervision was not sufficient. Notwithstanding the position the State took at the first hearing, at the second hearing after our remand, it chose to question defendant's claim that he required treatment rather than incarceration and that he was successfully engaged in a drug rehabilitation program, without any evidential basis for doing so. This inexplicable change of position without any evidential support demonstrates arbitrariness.
    The first Law Division judge who reviewed this case described defendant's rehabilitative efforts as "Herculean." This court, in its first opinion, observed that defendant's efforts in that regard were both "impressive" and "apparently successful." Reports of defendant's progress in the various drug programs in which he was involved were submitted for review after our initial remand and demonstrated continuing success and resolve on defendant's part. Aside from his progress in drug rehabilitation, defendant was also doing quite well academically at the university he was attending.
    The burglary and theft offenses, which were the subject of the accusation, were offenses committed against defendant's

neighbors while they were not at home. Defendant was willing to make restitution. The victims of the offenses have not expressed a desire to see defendant incarcerated. See N.J.S.A. 2C:43-e(4). Indeed, at the first hearing of this matter, the prosecutor admitted that the victims were not asked whether they wanted to see defendant incarcerated. Yet, one of the arguments advanced by the State was that defendant would be returning home from college in the summer months, and the victims had "a right to feel secure in their homes."
    The drug offenses were committed during the same three week period. The six drug offenses stemmed from two separate sales of drugs to an undercover police officer. The undercover officer spoke directly to defendant to arrange both purchases. Defendant arranged to meet the undercover officer at a Burger King for one of the sales. The Burger King happened to be within 1000 feet of school property. In the other sale, a friend of the defendant, who was under the age of eighteen, transferred the drugs to the officer in return for money while defendant sat in his car. Defendant apparently gave some of the proceeds of the transaction to his friend; hence, the basis for the second degree offense charging defendant with employing a juvenile in a drug distribution scheme. Every indication in this record is that the money obtained from the drug transactions was used to fuel defendant's drug dependency. Unlike Nwobu, there is no evidence that defendant was involved in an organized, ongoing money making enterprise for profit.

    The State relies on the second degree drug offense in support of its claim that the seriousness of the charge establishes the presumption against PTI. However, we note that it took the State thirteen months to have the indictment returned containing the second degree offense; one month after the first Law Division judge overruled the prosecutor's decision to deny defendant's admission to PTI. Moreover, during that initial hearing, although the Law Division judge was alerted to the fact that drug offenses against defendant were also pending, the prosecutor did not then argue that the nature or seriousness of any of those offenses would establish a presumption against admission. Indeed, the Bergen County Narcotic Task Force report concerning the matter states that defendant was arrested on May 5, 1992, and charged with "two (2) counts of narcotic distribution N.J.S.A. 2C:35-5a(1)." Neither the second degree offense nor the school zone offense were initially charged.
    After the second Law Division judge to hear this matter reconsidered his earlier decision and upheld the prosecutor's denial of admission to PTI, defendant pled guilty to one count of third degree distribution of cocaine, one count of third degree distribution of cocaine within 1000 feet of a school, and two counts of third degree burglary. In exchange for his plea, the State agreed to recommend that defendant receive an aggregate five year probationary term, with a three month in-house drug treatment program, and dismiss the remaining counts of the indictment and accusation. Defendant was sentenced accordingly.

    Ordinarily, we would not look to a plea agreement made after the fact of PTI denial to buttress our conclusion that the prosecutor committed a clear error of judgment. However, the State's brief cites to the probationary term of the plea bargain to denounce as "rhetoric" defendant's appellate argument that the prosecutor "`thwarted his attempt at rehabilitation by denying him PTI.'" The State also argues in its brief that the probation ordered through the plea agreement will enhance "the prospects that [defendant] will lead a crime free life," not because of the length of the probationary term, but because "the specter of prison should he violate probation will undoubtedly serve as a strong deterrent to defendant."
    In reality, the plea agreement accomplished little more than giving a criminal record to this young defendant who engaged in a brief period of aberrant criminal behavior, but has demonstrated success in college and is well on his way to meaningful rehabilitation. The agreement also demonstrates the hollowness of the State's reliance on the second degree offense as a reason to deny admission to PTI. We recognize the admonition in Nwobu, supra, 139 N.J. at 252, against weighing the evidence in determining the strength of the State's case. However, we cannot ignore reality, and the import of the State's conduct. The State demonstrated its own views concerning the strength and seriousness of the second degree charge when it, of its own volition, elected not to pursue it. Obviously, and by the State's own admission, the probation was ordered because of

defendant's clear rehabilitative success. While a violation of his current probation will expose defendant to a sentence for the crimes to which he has pled guilty, that sentence will be only for third degree offenses. However, if he violated the terms of the supervisory treatment imposed under PTI, all of the counts of the accusation and indictment, including the second degree offense, could have been reinstated. N.J.S.A. 2C:43-13e. Thus, we fail to see how the criminal sentence imposed carries with it a greater deterrent effect. Instead, the State's insistence that defendant be prosecuted criminally violates the essential purposes of PTI: "to avoid ordinary prosecution by [affording] early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred[,]" and "[t]o provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct." R. 3:28, Guideline 1(a)(b).
    In conclusion, we are satisfied that our prior opinion in this case is in full accord with the principles announced in Nwobu.

Footnote: 1The indictment was not returned until May 18, 1993,