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State v. Litton

Decided: December 20, 1977.


Matthews, Crane and Antell. The opinion of the court was delivered by Antell, J.A.D.


On August 13, 1975 defendant was charged in municipal court with open lewdness, N.J.S.A. 2A:115-1. His application for admission into the Bergen County Pretrial Intervention Program (hereinafter PTI) was denied by the program director on October 16, 1975 based upon the prosecutor's objection. Defendant thereafter moved for an order of admission into the program and the prosecutor furnished his statement of reasons on September 23, 1976. After a hearing on September 24, 1976 defendant's motion was granted. By our leave the prosecutor appeals.

The factual content of the prosecutor's investigation was substantially undisputed. His anticipated proofs are that defendant followed D.B., with whom he was unacquainted, to her home and parked across the street. She went inside briefly and when she came out observed that defendant was still there. A few minutes passed before he drove on to her driveway. She walked to his car, asked whether he needed directions, and it was while they were talking that he opened his clothing and exposed his genitals. She ordered him away and he left.

During the interval when D.B. was in her home J.S., a young woman who lived across the street, saw defendant apparently masturbating in his car.

Defendant is a 35-year-old married man who operates his own commercial design business in New York City and has no previous criminal history. He explains that he had developed a dependency on alcohol from business-related pressures and that at the time of the crime he was under further stress resulting from his wife's pregnancy and the fact of

her previous miscarriage. The incident is attributed by him to his intoxicated condition. He is now the father of a baby girl and is willing "to enter any program, cooperate and follow any course that might be established by the pre-trial intervention program."

Defendant was voluntarily examined at the Adult Diagnostic and Treatment Center in Avenel on February 27, 1976. The report of the examining phychiatrist revealed no evidence "of neurosis or psychosis, or serious underlying personality deficits." The examiner reported that defendant was not in need of psychiatric assistance "and most likely learned a great deal from his experience." He also opined that defendant "will not be prone to recurrences of similar behavior if able to abstain from periodic excessive drinking." Defendant's Shipley-Hartford Verbal I.Q. Equivalent Score was placed at 127 and his Abstraction Score was placed at 131. Therefore he functions intellectually at a level described as "superior." It was noted in the report that he "might benefit from involvement in therapy on an out-patient basis to help avoid future difficulties."

The vital questions presented on this appeal concern the scope of judicial review of prosecutorial action by which applications for admission into PTI are rejected. In assessing the action of the trial judge in ordering defendant admitted into the program over the prosecutor's objection we take our guidance from the Supreme Court Guidelines promulgated on September 8, 1976, 99 N.J.L.J. Index Page 865, State v. Leonardis , 71 N.J. 85 (1976) (Leonardis I), and State v. Leonardis , 73 N.J. 360 (1977) (Leonardis II), the last of which was decided some eight months after the order under review.

The function of pretrial intervention is to divert from the criminal justice system appropriate defendants who can benefit from "early rehabilitative services." Diversion is allowed only "with the consent of the prosecuting attorney." R. 3:28; Leonardis II, supra at 381. All classes of offenders are eligible for consideration and the emphasis is upon the

offender's potential for rehabilitation, -- not the offense with which he is charged. Leonardis I, supra 71 N.J. at 112; Guideline 2. The decision as to whether an applicant shall be admitted into the program must in the first instance be made by the program director and the prosecutor, but their decisions are subject to review. Leonardis II, supra 73 N.J. at 381. Where admission is denied a statement of reasons may be required. Leonardis I, supra 71 N.J. at 119.

The program is a cooperative undertaking among the branches of government, Leonardis II, supra 73 N.J. at 372, involving the "exercise of quasi -judicial power" Leonardis II, supra at 379, and lies "[w]ithin a wholly judicial sphere," Leonardis I, supra 71 N.J. at 115. Court review of the prosecutor's decision is narrowly limited. Its purpose is to allow a defendant to demonstrate an abuse of discretion by the prosecutor. Leonardis II, supra 73 N.J. at 383. The proceeding is likened to an action in lieu of prerogative writs, Leonardis II, supra at 377, n. 7, based on the record below, State v. White , 145 N.J. Super. 257, 260 (Law Div. 1976). To prevail, the defendant has the "heavy burden," Leonardis II, supra 73 N.J. at 381, to show "clearly and convincingly" "compelling reasons justifying his admission" and that the prosecutor "acted in a grossly arbitrary or capricious manner," Leonardis II, supra at 382, 383, amounting to "a patent and gross abuse of his discretion." Leonardis II, supra at 382; Guidelines 2, 3(i), 8. In reviewing the record "great deference" should be given the prosecutor's judgment. Leonardis II, supra at 381. His refusal to consent may, ...

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