Lora, Seidman and Milmed.
This appeal is from an order denying defendant's application for entry into a pretrial intervention program.
Defendant was the treasurer of the Joint Free Public Library of Morristown and Morris Township. He was charged in five municipal court complaints with embezzling moneys from said library, in violation of N.J.S.A. 2A:102-1, and also with drawing several checks to himself as payee and forging thereon the signature of another library official, in violation of N.J.S.A. 2A:109-1. He applied on July 22, 1976 for entry into the Morris County Pretrial Intervention Program (PTI). Thereafter, on motion of the program coordinator, an order was entered in Superior Court by the designated judge for such matters adjourning all further proceedings and setting the matter down for hearing on October 29, 1976.
The program coordinator submitted to the court a pre-trial intervention report in which he expressed the view that "there seems to be very little prospect that the defendant will commit another criminal act," and "it is felt that Mr. Markt is rehabilitated." Defendant was declared to be "an excellent candidate for the Pre-Trial Intervention Program," and his acceptance was recommended. At the hearing the prosecutor objected to the application, essentially on the ground that the crimes charged involved a breach of public trust by defendant over an extended period of time. He argued that to admit defendant into the program would deprecate the position of a public official and lessen "in the
public eye the seriousness of what happens when an individual violates that trust."
The designated judge agreed that defendant had previously led an exemplary life and was "a significant candidate for rehabilitation." Nevertheless, he determined that the application should be denied. He said:
Defendant later pleaded guilty to an accusation charging him in one inclusive count with having embezzled $4,384.88. He was sentenced to the Morris County Jail for a term of one year less one day, six months of which were suspended, and he was fined $500. This appeal followed. It is limited to the denial of defendant's PTI application. Although the notice of appeal included the sentence imposed, any issue with respect to its claimed excessiveness has been withdrawn.
The contentions are that (1) the lower court's denial of defendant's application for pretrial intervention was the result of an erroneous interpretation and application of the PTI guidelines as promulgated by the New Jersey Supreme Court; (2) defendant's denial of entry into the Morris County Pretrial Intervention Program was the result of the mandatory application of exclusionary criteria under PTI Guideline 3(i)(4) which contradicted both the spirit and
content of the PTI guidelines as promulgated by the New Jersey Supreme Court; (3) the record below reflects that defendant did present evidence demonstrating his amenability to the reliabilitative process and showing compelling reasons justifying his admission into PTI and establishing that a decision against enrollment would be arbitrary and unreasonable, and (4) due to the vagueness and uncertainty of the PTI guidelines as promulgated by the Supreme Court, the denial of defendant's application was arbitrary and unreasonable.
We have carefully considered the record and the arguments advanced by defendant and conclude that the designated judge's determination to deny defendant entry into the PTI program should be sustained.
We recently emphasized in State v. Litton , 155 N.J. Super. 207 (App. Div. 1977), that State v. Leonardis , 71 N.J. 85 (1976) (Leonardis I), and State v. Leonardis , 73 N.J. 360 (1977) (Leonardis II, decided after the hearing in this case), narrowly limits court review of a prosecutor's ...