Defendant was denied application for pretrial intervention by the Probation Department of Essex County. The basis for that decision is clearly set forth in the September 30, 1976 memorandum from Senior Probation Officer Nancy Milliken. She refers specifically to the guidelines for pretrial intervention, and her findings are detailed -- i.e., the nature of the crime and the fact that no meaningful rehabilitation could be worked within the time periods of R. 3:28, if, in fact, any rehabilitation at all could result.
Under letter of October 7, 1976 the Prosecutor of Essex County opposed pretrial intervention predicated upon a crime of violence (murder) and that there was no available facility to rehabilitate within the time permitted for diversion.
The matter is before this court under R. 3:28, on motion for an order to direct the Probation Department and the prosecutor to accept defendant for pretrial intervention. Two points are made. First, defendant is entitled to a hearing in which witnesses could be called to explain circumstances of the crime and/or testimony to be offered by an expert to testify concerning his opinion as to pretrial intervention and the method to be used in deciding the issue. Second, the decision by the probation officer was arbitrary, capricious and unreasonable.
In oral argument counsel for defendant-applicant contended that the murder involved was brought about by the actions of decedent against applicant over many years; that members of her family could testify to this behavior and abuse; that a psychologist could testify concerning the rehabilitative capacity of defendant. A request was made
to examine the probation officer to obtain some light on her mental processes and determinations of the values which she attributed to the information at her disposal.
To allow such testimony and cross-examination by the State smacks of a trial before the event. The factual basis of the crime is for the trial of the indictment. If allowed in this type of procedure, where does one draw the line of interrogation? Would this testimony take defendant out of the protective umbrella of guideline 5? To allow such an extensive hearing on the issue of whether the decision of the probation officer and/or the prosecutor was arbitrary or capricious would be in violation of State v. Leonardis , 71 N.J. 85 (1976), and the guidelines of September 8, 1976.
In Leonardis the Supreme Court referred to this problem in the following language:
Although a trial-type proceeding is not necessary, defendant shall be accorded an informal hearing before the designated judge for a county at every stage of a defendant's association with a PTI project at which his admission, rejection or continuation in the program is put in question. A disposition is appealable by leave of court as any interlocutory order. R. 2:2-2.
The Pretrial Intervention Guidelines of September 8, 1976 state specifically the method of challenge from the action of the probation officer or prosecutor in guideline 8, as follows:
If a defendant desires to challenge the decision of a program director not to recommend enrollment or of a prosecutor refusing to consent to enrollment into a PTI program, a motion must be filed before the designated judge (or the Assignment Judge) authorized to enter orders under R. 3:28. The challenge is to be based upon arbitrary or capricious action , and the defendant has the burden of showing that the program director or prosecutor abused his discretion in processing the application. [Emphasis supplied]
Guideline 2 particularizes the duty of the applicant to allege and present any facts and materials to the program director to make the applicant eligible for a program. The ...