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State v. Masucci

Decided: January 23, 1978.


Alterman, J.d.c., Temporarily Assigned.


This pretrial intervention motion challenges the Program Director's rejection of defendant's application and raises issues regarding the scope of the hearing required under R. 3:28.

In the course of investigating a theft from Clifton High School, the Clifton police obtained a warrant to search defendant's home. There they discovered items taken from the high school and a cache of marijuana. As a result, defendant was indicted for unlawful possession of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance, intent to steal and larceny.

Defendant is 19 years old and lives with his parents. He was graduated from Clifton High School in June 1977. He was employed summers and on a part-time basis while attending high school and has been gainfully employed since he was graduated.

In April 1974 defendant was charged with juvenile delinquency (threat with a knife). Disposition of that complaint was withheld for two months and then dismissed. In the same month he was charged with four juvenile complaints alleging burglary and like offenses. For these complaints he was placed on temporary probation, disposition was withheld and defendant was ordered to continue treatment with a psychiatrist. Three months later, after a favorable report from the psychiatrist, probation was terminated and the complaints were dismissed.

Defendant began using marijuana at age 13. He used cocaine once, mescaline "a few times," but no longer uses any controlled dangerous substance. A urine test performed as part of the PTI application procedure was negative for controlled dangerous substances.

The Director concluded that defendant was not now in need of any drug treatment, that there was no causal connection between the offenses charged and defendant's rehabilitative need, and that defendant was involved in a continuing criminal activity or enterprise. The Director drew these conclusions from defendant's denial of any present use of marijuana, from the large amounts of that drug that were found in defendant's home, from defendant's knowledge of the cost of marijuana, from his admission that he sells it on the street for $25 a half-ounce, and from the negative urine test. Defendant's application for participation in the program was, therefore, denied.

Upon being advised of the rejection defendant filed the present motion and issued a subpoena to the PTI Director and the Passaic County Prosecutor, returnable on the day of the motion. The subpoena seeks: (1) to take the testimony

of the author of the PTI evaluation reports; (2) to inspect and photocopy reports of all statements made by defendant regarding profits from the sale of marijuana and statements indicating defendant's involvement in a "continuing criminal business or enterprise"; (3) to examine the probation department file concerning defendant's prior juvenile offense; (4) to examine confessions or admissions made by defendant to police authorities; (5) to examine the names of all persons interviewed by the author of the evaluation report and a summary of the information imparted by the persons interviewed. The prosecutor has moved to quash the subpoena.

In State v. White , 145 N.J. Super. 257 (Law Div. 1977), defendant sought to examine a probation officer who had denied his application for pretrial intervention, in order to disclose her mental processes and the values she attributed to the information at her disposal. The court held that such a hearing violated the teaching of State v. Leonardis , 71 N.J. 85 (1976), and the PTI Guidelines. The court there stated that its function was solely to "review the action of the director on the material submitted to the director by the applicant, balancing that action against the standard of arbitrariness and capriciousness." State v. White, supra at 261.

The challenge here, while it directly implicates the holding in White , is somewhat more extensive. The avowed purpose of the subpoena is to enable defendant to expose the alleged deficient manner in which the investigation of his background was conducted, to check the accuracy of information relied upon by the PTI personnel, and to demonstrate the arbitrariness of the Director's conclusion. While White delineated the scope of the hearing contemplated by R. 3:28, it was not there necessary for the ...

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