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State v. Levien

Decided: April 12, 1965.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J. Proctor, J., concurs in result.


[44 NJ Page 325] On September 11, 1942 Gardner LeVien was adjudged insane by the Bergen County Court of Common Pleas, and ordered confined at the New Jersey State Hospital at Greystone Park. About a year later he assaulted two other patients, choking them to death. Immediately thereafter, by order of the Commissioner of the Department of Institutions and Agencies, LeVien was transferred to the State Hospital at Trenton to be held in special custody in a maximum security unit. He has remained a patient in this

institution to date; his present diagnosis being "Schizophrenic reactions, paranoid type, with guarded prognosis."

The cost of LeVien's maintenance during his confinement, amounting to $24,992.09, has been borne by the State of New Jersey and the County of Bergen. (Although originally indigent, defendant stipulates that LeVien's present assets exceed this amount.) Suit was instituted by them against Le Vien's guardian and a judgment in that amount was awarded by Judge Gordon H. Brown sitting without a jury. 82 N.J. Super. 29 (Law Div. 1963). While the appeal was pending in the Appellate Division, we granted certification on our own motion.

We are in agreement with the conclusion of Judge Brown that LeVien's confinement in the Trenton State Hospital has been in a "charitable" institution (N.J.S.A. 30:1-7) and therefore the cost of his maintenance is allocable to his estate under N.J.S.A. 30:4-66 which provides:

"Every patient supported in a State charitable institution shall be personally liable for his maintenance and for all necessary expenses incurred by the institution in his behalf * * *."

However, defendant contended before Judge Brown and before us that he had a right to have had criminal proceedings brought against him in 1943 after the killings, that he would have been adjudged criminally insane, and that as a "criminal insane" the State and not he would have been liable for his maintenance.*fn1


As to the first contention, we find no authority which would permit one who commits a crime to insist on the State's instituting criminal proceedings. It is the prosecutor

who in the first instance has the discretion in such circumstances. See Hassan v. Magistrates Court of City of New York, 20 Misc. 2 d 509, 191 N.Y.S. 2 d 238 (Sup. Ct. 1959), cert. denied 364 U.S. 844, 81 S. Ct. 86, 5 L. Ed. 2 d 68 (1960); Leone v. Fanelli, 194 Misc. 826, 87 N.Y.S. 2 d 850 (Sup. Ct. 1949); Graham v. Gaither, 140 Md. 330, 117 A. 858 (Ct. App. 1922); Murphy v. Sumners, 54 Tex. Cr. R. 369, 112 S.W. 1070 (Crim. App. 1908); Note, "Prosecutor's Discretion," 103 U. Pa. L. Rev. 1057 (1955); Schwartz, "Federal Criminal Jurisdiction and Prosecutors' Discretion," 13 Law & Contemp. Prob. 64 (1948). He has the duty to

"investigate, i.e., inquire into the matter with care and accuracy, that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other; that his duties further require that he intelligently weigh the chances of successful termination of the prosecution, having always in mind the relative importance to the county he serves of the different prosecutions which he might initiate. Such duties of necessity involve a good faith exercise of the sound discretion of the prosecuting attorney. 'Discretion' in that sense means power or right conferred by law upon the prosecuting officer of acting officially in such circumstances, and upon each separate case, according to the dictates of his own judgment and conscience uncontrolled by the judgment and conscience of any other person. Such discretion must be exercised in accordance with established principles of law, fairly, wisely, and with skill and reason. It includes the right to choose a course of action or non-action, chosen not willfully or in bad faith, but chosen with regard to what is right under the circumstances. * * *" State on Inf. McKittrick v. Wallach, 353 Mo. 312, 182 S.W. 2 d 313, 318-319, 155 A.L.R. 1 (Sup. Ct. 1944).

(Quoted with approval in State v. Winne, 12 N.J. 152, 172-173 (1953).) Herein the Prosecutor of Morris County in a letter to the Attorney General, dated November 16, 1962, made ...

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