Michels, Pressler and Bilder.
[157 NJSuper Page 159] This matter, which comes before us on our grant of leave to appeal and leave to cross-appeal, raises a basic question as to the manner in which the Salem County Prosecutor and Program Coordinator are exercising their functions under that county's pretrial intervention program.
The specific issue is the extent to which they are required to consider and to report their consideration of applicants to the program who come within the prima facie ineligibility classification of persons who have deliberately committed a crime of violence against another.
The context in which this issue arises involves an indictment returned against defendant Joseph Atley charging him with two counts of atrocious assault and battery. The offenses allegedly took place during the course of a large-scale disturbance which occurred outside the Penns Grove Y.M.C.A. involving a large group of young people. Defendant admits that he was caught up in the hysteria of the riot and grabbed a baseball bat which was immediately at hand, smashing it against an automobile and injuring its occupant. Defendant was 21 years old when the incident occurred, has neither an adult criminal nor juvenile record, apparently completed high school, has been regularly employed since his graduation, resides with his parents, claims to lead a normal law-abiding life and contends that the event in question was completely aberrational and out of character. He has made restitution for the property damage.
His application for admission to the program, supported by official documentation but without personal interview by the program administrators, resulted in his receipt of a form letter from the program coordinator denying him participation for the reason that "Your offense, Atrocious Assault and Battery, involves violence against another person and diversion would deprecate the seriousness of your crime (Guideline 3(i)(3)."*fn1 The form letter further advised him that pursuant
to Guideline 2 he had the right to present additional "reasons, facts or materials which you feel would serve to justify your admission as an exception to the guidelines." Accordingly, his attorney wrote to the project coordinator reciting the facts we have herein indicated and noting the high esteem in which defendant was held by his employer and coemployees. The response to this letter was a second form letter, signed by the coordinator, approved by the prosecutor, and reading in full as follows:
The defendant named above has made an application for participation in the Salem County Pre-Trial Intervention Program pursuant to the provisions of Court Rule 3:28.
It is the opinion of the coordinator that in accordance with the policy of the Court, the defendant is ineligible for participation for the following reasons: Your offense, Atrocious Assault and Battery, involves violence against another person and diversion would deprecate the seriousness of your crime. (Guideline 3-i-3) Pursuant to Guideline 2, the defendant was given an opportunity to present compelling reasons (see attached letter from attorney), however, it was the coordinator's opinion that the reasons given did not serve to justify admission as an exception to the guidelines.
Defendant promptly applied for judicial review of his rejection, claiming that it represented a gross abuse of discretion on the part of the prosecutor. The concern, however, of the trial judge on the record before him was not whether the rejection was sustainable on the merits but rather that the judicial review function could not properly be exercised in view of the failure of both the prosecutor and the coordinator to have given an adequate statement of reasons for their action.
It was the prosecutor's argument that it is neither his burden nor the coordinator's
The prosecutor further contended that when the offense involved is one encompassed by Guideline 3(i)(3), his obligation to explain his reasons for rejection is met simply by citation of that guideline and the notation that compelling reasons were not presented, i.e. , the precise procedure here followed. The judge disagreed, observing that the prosecutor has to "satisfy the Court that some consideration was given to the ...