On appeal from Superior Court, Law Division, Hunterdon County.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
This appeal raises for the first time before us the issue of what standard a trial judge should apply in reviewing a defendant's application for admission to a Pretrial Intervention Program (Program) where said admission is recommended by a program director with the consent of the prosecutor. R. 3:28. The converse is well-settled, that is, where the prosecutor withholds his consent it is incumbent upon defendant to "clearly and convincingly establish that the prosecutor's refusal * * * was based on a patent and gross abuse of his discretion." State v. Leonardis , 73 N.J. 360, 382 (1977) (Leonardis II).*fn1
The facts leading to the application for admission are not in dispute. Defendants are teachers in a Hunterdon County high school. Defendant Hermann was indicted by the Hunterdon County grand jury for receiving and having in his possession a quantity of stolen 2 x 4's having a value of over $200, knowing said property to have been stolen, contrary to N.J.S.A. 2A:139-1. Jones was also indicted by said grand jury for knowingly or willingly aiding and abetting Hermann to receive said stolen lumber, contrary
to N.J.S.A. 2A:85-14 and N.J.S.A. 2A:139-1. The person from whom the lumber was allegedly acquired was a student at the same high school where defendants teach.
According to an affidavit of Hermann, he neither knew nor taught the student from whom he bought the lumber, but had been referred to him by Jones. Hermann met with the student during his lunch hour, arranged to view the lumber and, after doing so after school hours, purchased it from the student.
In accordance with the practice of the prosecutor, inquiry was made of the police who effected the arrests. The Director of Public Safety of the Township of Raritan notified the prosecutor of his objection to the admission of defendants into the program. A part of his letter reads:
1. The sensitive nature of their employment as school teachers, whose behavior has a profound effect on students of an impressionable age, makes it imperative that they be judged guilty or not guilty of the offenses charged in this matter.
2. Their involvement in the PTI program would avail nothing but leave doubts in the minds of the community as to their guilt or innocence and would make them ineffective as teachers of our children, in fact it would leave the impression with young people that breaking the law is an acceptable practice. It would also negate their effect as disciplinarians and cause a loss of respect for the profession.
The attorney for the board of education having jurisdiction of the school in which defendants taught likewise communicated with the prosecutor. A part of his letter, written at the instance of the board, reads:
When defendants applied for leave to appeal we were presented with what was tantamount to a single viewpoint -- that which was advanced by each defendant, the prosecutor and the Attorney General (who filed a brief as amicus curiae) -- all arguing that the judge exceeded his authority in rejecting defendants' applications and that leave to appeal should be granted. In order that we might be assured that all aspects of the issue would be earnestly explored, we appointed, on our own motion, an amicus curiae , who filed a brief and subsequently participated in oral argument on the merits of appeal. Whelan v. N.J. Power & Light Co. , 45 N.J. 237, 244 (1965). We granted leave, directed that the cases be consolidated on appeal, and elected to consider and determine the matter on the papers submitted, as none of the parties desired to file any additional memoranda after oral argument. R. 2:11-2.
In essence, the arguments of defendants, the prosecutor and the Attorney General are in accord -- i.e. , that the standard of review in the instant case is the same as in those cases where the prosecutor vetoes a defendant's ...