Allcorn, Morgan and Horn.
In order to review the denial of defendant's application for admittance into the Atlantic County Pretrial Intervention Program (program) we granted leave to appeal and elected to consider and to determine the matter pursuant to R. 2:11-2.
On June 10, 1976 defendant, then 19 years of age, was indicted by an Atlantic County grand jury for conspiring
to break and enter, breaking and entering and petit larceny. Shortly after the indictment was returned, defendant, by reason of his status as a member of the United States Army, was assigned to military duties outside the county -- first to Fort Dix and then to Fort Huachuca, Arizona. Although he was represented by the Public Defender during his absence, no application for admittance to the program was filed until March 25, 1977, about 8 1/2 months after defendant's plea was entered, after he returned to the county and was informed of the availability of the program.
Initially, at a hearing prompted by defendant's challenge to the prosecutor's objection that the application for admittance to the program was untimely, the trial judge decided that in the interests of justice "the rules should be relaxed in this particular instance" and ordered that the application be considered on its merits. Defendant was found to be acceptable to the program. However, because the prosecutor persisted in the same objection that defendant's application was too late, the judge at a second hearing sustained that objection and rejected defendant's request for participation in the program. We find that the judge's rejection on this ground constituted an abuse of discretion.
We need not reiterate the important salutary purposes of the program. These have been memorialized in depth by our Supreme Court in State v. Leonardis , 71 N.J. 85 (1976) (Leonardis I), and State v. Leonardis , 73 N.J. 360 (1977) (Leonardis II). See also, Del Tufo, "Pre-Trial Intervention: A Means of Combatting Serious Crime," 5 Criminal Justice Quarterly , at 52 (1977).
The objection interposed by the prosecutor, and which was sustained by the trial judge, is based upon Guideline 6 of the P.T.I. Guidelines adopted by the Supreme Court on September 8, 1976. Guideline 6 provides:
Application for PTI should be made as soon as possible after commencement of proceedings, but, in an indictable offense, not later than 25 days after the original plea to the indictment.
It will be observed that these guidelines were not effective until about three months after defendant's not guilty plea was entered in his behalf by the Public Defender during defendant's absence. When defendant's plea was entered the entire program in the county was in a state of uncertainty, being operated on a loose ad hoc basis.
Notwithstanding that at the initial hearing the judge expressed the view that the 25-day limitation could be relaxed (cf. R. 1:1-2), at the second hearing, in rejecting the application, the judge said that Leonardis II
Without any testimony, and therefore without any factual support therefore, the judge found that the prosecutor ...