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State v. Lebbing

Decided: April 12, 1978.

STATE OF NEW JERSEY, PLAINTIFF,
v.
RICHARD LEBBING, DEFENDANT



Meredith, J.s.c.

Meredith

[158 NJSuper Page 212] This matter comes on for hearing by the court by way of motion brought by the State to terminate defendant's pretrial diversionary status and to return him to the normal course of prosecution. R. 3:28(c)(3). On the hearing of this motion defense counsel moved to allow the introduction of testimony and other relevant evidence bearing on defendant's fitness to continue in the Somerset County Pretrial Intervention Program (hereinafter PTI). Resolution of this latter motion raises the issue of whether a pretrial divertee is entitled, as a matter of constitutional due process, to an evidentiary hearing on a motion to terminate his diversionary status where he may present evidence in his own behalf and may confront evidence proffered against him.

Defendant is charged in three separate indictments containing single counts with renting a motor vehicle with intent to defraud, contrary to N.J.S.A. 2A:111-34. Pursuant to timely application defendant was, on June 24, 1977, admitted into Somerset PTI for an initial three-month period of supervision. A condition of the supervisory program was that defendant submit to an evaluation to determine whether enrollment in an alcoholic rehabilitation program was indicated. On September 15, 1977 defendant was admitted to a residential alcoholic treatment center. Subsequently, on September 24, 1977, a second three-month period of supervision was imposed pursuant to R. 3:28(c)(2).

On November 7, 1977 defendant belatedly informed Somerset PTI that he had been arrested for utterance of a forged check on July 27, 1977 in Flemington, Hunterdon County, New Jersey. A determination to recommend termination of defendant's diversionary status was made by the Somerset PTI Program Director because of defendant's arrest and concealment of that fact and for noncooperation, generally, in the acceptance of and amenability to supervision. A termination report was submitted to the court at the termination hearing which concluded that defendant is "not amenable to short term rehabilitation and the concepts of PTI * * *," and recommended termination. Defendant seeks to challenge the validity of this conclusion and the correctness of its factual foundation by way of the instant motion for an evidentiary hearing. Defendant asserts that such is constitutionally mandated by the requirements of due process embodied in the Fourteenth Amendment of the Federal Constitution.

The first question encountered is whether due process principles apply at all to the present proceedings. Determination of this question in no wise turns on whether continuation of diversionary status is deemed either a "right" or a "privilege." This dichotomy, in the due process context, has been emphatically rejected by the United States

Supreme Court, Graham v. Richardson , 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534, (1971); Goldberg v. Kelly , 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287, (1970); Shapiro v. Thompson , 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600, (1969), and by our own Supreme Court, State v. Leonardis , 71 N.J. 85 (1976) (Leonardis I); Avant v. Clifford , 67 N.J. 496 (1975). See also, Van Alstyne, "The Demise of the Right-Privilege Distinction in Constitutional Law," 81 Harv. L. Rev. 1439 (1968). As a general matter, determination of whether procedural due process applies depends on the extent to which an individual will be made to suffer a "grievous loss." Joint Anti-Fascist Refugee Comm. v. McGrath , 341 U.S. 123, 168, 71 S. Ct. 624, 626 95 L. Ed. 817, (1951) (Frankfurter, J. concurring); Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, (1972). This principle has been applied and extended to varying situations in New Jersey. See Avant v. Clifford, supra; In Interest of D.G.W. , 70 N.J. 488 (1976). The inquiry devolves into the question of whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Morrissey v. Brewer, supra; Wolff v. McDonnell , 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).

In proceedings closely analogous to the instant proceeding, the United States Supreme Court has decided that due process principles are applicable. In Morrissey v. Brewer, supra , the court held that due process procedural protections apply to parole revocation proceedings. The Court reasoned that the conditional liberty at stake there contained many of the "core values" attendant upon unqualified liberty, such that its termination inflicted "grievous loss" on the parolee. In Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), the court extended this reasoning to include probation terminations, finding there to be no difference between parole and probation terminations insofar as

due process was concerned, since the same interests were at stake.

This reasoning appears fully applicable to PTI terminations as well. Certainly, in many instances, loss of PTI status will also entail the loss of the conditional liberty attendant upon participation in the program. This interest alone was deemed sufficient to impose due process protections in Morrissey and in Gagnon, supra. With respect to this aspect, it might be noted that PTI and probation are deemed so closely similar as to have led some commentators to refer to PTI as a form of pretrial probation. See Pretrial Intervention Legal Issues (1977), at 41. However, there appears to be more at stake here than simply this interest. Loss of diversionary status also entails the loss of freedom from prosecution, as well as imposing the possibility of adjudication of guilt and the stigma of conviction. Another affirmative disability not to be discounted is the possibility of an unfavorable presentence report because of the termination. See "Pretrial Intervention Programs -- An Innovative Reform of the Criminal Justice System," 28 Rutg. L. Rev. 1203 (1975); Pretrial Intervention Legal Issues at 43. The sum total of these disabilities compels the court to the conclusion, buttressed by the holdings in Morrissey and Gagnon , that due process principles apply to PTI termination hearings.

"Once it is determined that due process applies, the question remains what process is due." Morrissey, supra , 408 U.S. at 481, 92 S. Ct. at 2600. This requires consideration of the precise nature of the government function involved as well as the private interest that has been affected. Cafeteria & Restaurant Workers Union v. McElroy , 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). In Morrissey, supra , the court outlined the respective interests at stake in the parole revocation context. It considered that the parolee was not the only one with a stake in his conditional liberty. The court deemed that ...


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