On appeal from Superior Court, Law Division, Somerset County.
Allcorn, Horn and Furman. Furman, J.s.c. (temporarily assigned), dissenting.
[159 NJSuper Page 466] This is an appeal by the State from an order entered by the trial judge admitting defendant to the Somerset County Pretrial Intervention Program (P.T.I. Program) on a finding following a hearing that the objection by the State was "patently and grossly arbitrary, unreasonable and capricious."*fn1
A state grand jury indictment charged defendant Jerome Bender with stealing narcotic drugs (cocaine), in violation of N.J.S.A. 2A:119-8.1 (count 1); possession of a controlled dangerous substance (cocaine), in violation of N.J.S.A. 24:21-20a(1) (Count 2); possession of a controlled dangerous substance (marijuana), in violation of N.J.S.A. 24:21-21a(3) (count 3); possession of a controlled dangerous substance (hashish), in violation of N.J.S.A. 24:21-20a(3) (count 4); possession of controlled dangerous substances (valium, ritalin, fiorinal, pentobarbital, phenobarbital and emperin with codeine), in violation of N.J.S.A. 24:21-20a(1) (count 5); possession of controlled dangerous substances not in the original container (valium, ritalin, fiorinal, pentobarbital and emperin with codeine), contrary to N.J.S.A. 24:21-18 (count 6), and refusal and failure to keep records under the Controlled Substances Act, contrary to N.J.S.A. 24:21-21a(4). 24:21-13 and 24:21-9 (count 7). Pursuant to an agreement between defendant and the State, and before Somerset County had a P.T.I. Program, defendant entered a plea of guilty on November 15, 1976 to count 1, charging stealing of a narcotic drug, to wit, cocaine, between January 1, 1972 and on or about December 10, 1975. Counts 2 through 7 subsequently were dismissed. Additionally, the State recommended a noncustodial sentence.
On or about January 14, 1977, after the P.T.I. Program was adopted for the county, defendant applied for admission into it. The Attorney General opposed the application. On or about March 30, 1977 the Program Coordinator notified defendant of his rejection as a participant in the Program. Defendant then filed a motion in the Somerset County Court seeking review of the denial of his application for admission to the Program. The judge made the challenged ruling following a hearing on the motion.
This is indeed a sorry case and invokes great sympathy. Defendant presently is 42 years old. He was licensed to practice pharmacy in 1960, from which time he was employed as pharmacist-in-charge at a drugstore in Somerville.
He was married in 1960 and is the father of two children, ages 10 and 13. Until the episodes in question he had no criminal record. Commencing in 1972 he began to use cocaine diverted from the stocks of the store of his employer where he was working, and he became dependent upon its use. In addition, he commenced to consume large quantities of alcohol daily. His use of cocaine by inhalation caused physical damages to him -- a perforation of his palate as well as destruction of tissue in his nasal passages. When confronted with charges that he was using drugs, he readily admitted his drug and alcohol abuse, and immediately sought medical and rehabilitory assistance. He resided in a drug clinic for approximately six weeks and, when discharged, he cooperated in out-patient drug programs. Thereafter he participated as a member of the advisory board of an addiction-recovery unit of an organization of the county.
He has since been divorced and has been able to make restitution for the cocaine which he had misappropriated. He voluntarily ceased practicing pharmacy and has not been suspended. His rehabilitation is attested by numerous letters from those who have been in a position to observe him socially, professionally and through business relationships. Counsel advised the court that his former employer has offered to restore him to his prior position as a pharmacist in their store, but that he has advised defendant against accepting that offer pending disposition of this and certain other problems.
The State opposed defendant's application for the following reasons:
A. The course of conduct described in Count I was a continuing criminal business or enterprise. [P.T.I. Guideline 3 (i) (2)] The defendant systematically used Schedule II order forms to obtain narcotics over a four year period.
B. The conduct pursued by the Defendant-Bender, a licensed pharmacist, is a breach of public trust where admission to a P.T.I. program would depreciate [ sic , deprecate] the seriousness of the defendant's crime. [P.T.I. Guideline 3(i) (4)] Admission ...