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State v. Mitchell

Decided: December 11, 1978.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
WILLIAM MITCHELL, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On appeal from interlocutory order of the Superior Court, Law Division, Camden County.

Lynch, Crane and Horn. The opinion of the court was delivered by Crane, J.A.D.

Crane

Pursuant to leave granted, the State appeals from an order of the Law Division directing the Attorney General to provide defendant, who was indicted by the state grand jury for giving false information to law enforcement agencies, in violation of N.J.S.A. 2A:148-22.1, with information pertaining to

(1) the decision to prosecute the defendant in this case,

(2) the decision to proceed by indictment in this case prior to a preliminary hearing,

(3) any standards, guidelines, policies, directives or instructions prescribing what cases or categories or types of cases shall be initiated by complaint and/or which cases shall be initiated by indictment,

(4) general information concerning the State's decision to prosecute, and

(5) the convening, swearing in and discharge of any state grand jury in existence at any time from November 1975 to and including April 1976, as well as all periods when the grand jury was in recess or temporary adjournment.

Defendant has cross-appealed from an order quashing his subpoena duces tecum for oral depositions of the Attorney General, the Director of the Division of Criminal Justice and the Superintendent of State Police.

The issues raised by defendant's cross-appeal are clearly controlled by our decision in Hyland v. Smollok , 137 N.J. Super. 456 (App. Div. 1975), certif. den. 71 N.J. 328 (1976). Here, as was the case in Smollok , there has been no preliminary showing that any of the high ranking officers sought to be deposed had any first-hand knowledge of the facts or that the taking of such depositions is essential to prevent injustice.

Defendant asserts that the information required to be furnished by the order is necessary to his defense that the State has selectively and discriminatorily prosecuted him. That defense is founded upon the principle enunciated in Yick Wo v. Hopkins , 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), that intentional discrimination in the enforcement of a criminal statute constitutes a deprivation of due process of law. See State v. Boncelot , 107 N.J. Super. 444, 453 (App. Div. 1969).

Fundamentally, a prosecutor is vested with broad discretion in selecting matters for prosecution. In re Investigation Regarding Ringwood Fact Finding Comm'n , 65 N.J. 512, 516 (1974); State v. Laws , 51 N.J. 494, 510-511 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). A decision to prosecute or not to prosecute is to be accorded judicial deference in the absence of a showing of arbitrariness, gross abuse of discretion or bad faith. State v. Leonardis , 73 N.J. 360, 382, 394 (1977); State v. Bender , 159 N.J. Super. 465, 469 (App. Div. 1978); State v. Litton , 155 N.J. Super. 207 (App. Div. 1977). It is also abundantly clear that the failure to conduct a preliminary hearing does not deprive a defendant of any constitutional right, nor does it affect the validity of an indictment. State v. Smith , 32 N.J. 501, 536 (1960), cert. den. 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1960); State v. ...


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