On or about May 25, 1977 defendant, Sam Forbes, Jr., served a subpoena duces tecum on Ross H. Doyle, program director of the Union County Pretrial Intervention Program (PTI). In addition to requiring the program director to testify, the subpoena requires the production of "all records and files concerning applications, processing of applications, acceptances and objections from the inception of the Pretrial Intervention Program of Union County to the present." Doyle has refused to honor the subpoena and both parties request that this court rule upon its legality.
Defendant was originally indicted in August 1976 for conspiracy to commit larceny, larceny and embezzlement. On November 8, 1976 a PTI program was established in Union County pursuant to R. 3:28. Defendant applied for admission to the program but was rejected under Guideline 6 of the September 8, 1976 Supreme Court "Guidelines for Operation of Pretrial Intervention in New Jersey" (hereinafter "Guidelines"), and the October 15, 1976 directive from Assignment Judge DiBuono which stated in pertinent part:
A pretrial intervention program has been instituted in Union County pursuant to R. 3:28, commencing November 8, 1976.
Under Section 6 of the Pretrial Intervention Guidelines issued by the Supreme Court, application for admission into the pretrial intervention program must be made within 25 days of arraignment. Consequently, all defendants arraigned on or after October 14, 1976 will be eligible to apply on November 8, 1976. An application made
in behalf of a defendant who has been arraigned more than 25 days before the date of the application will be rejected.
Defendant filed a motion before the designated judge to obtain a review hearing pursuant to Guideline 8 for the purpose of challenging the decision of the program director not to recommend enrollment. The rejection was sustained at the review hearing. Thereafter, defendant's motion for leave to appeal was denied by both the Appellate Division and our Supreme Court.
In March 1977 the original indictment was withdrawn and superseded by Indictment 676-76 charging substantially the same offenses. Defendant again made application to the PTI program, but was rejected by the program director. The notice of rejection states in pertinent part:
Your offense was part of a continuing criminal business which constitutes grounds for rejection under the Guidelines for Operation of Pretrial Intervention in New Jersey. The offense charged is of such a serious nature that it far outweighs whatever possible rehabilitative factors might be present in your case and there are no compelling reasons to justify your admission to the program.
In anticipation of making a motion for reconsideration under Guideline 8, defense counsel asked the program director for permission to review all the PTI files. When the director denied the request, he was served with the subpoena in question.
Guidelines, as interpreted by the Supreme Court in State v. Leonardis , 73 N.J. 360 (1977) (hereinafter Leonardis II) require that before the designated judge can overturn the director's decision not to recommend enrollment, the applicant must clearly and convincingly establish that his rejection was the result of the director's arbitrary and capricious action. Defendant argues that access to the PTI files is essential in order to meet that heavy burden. The program director contends that although ...