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State v. Ortiz

Decided: January 22, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES ORTIZ, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Monmouth County.

Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

On leave granted, defendant Charles Ortiz appeals from an order of the trial court affirming the action of the Monmouth County Program Director, concurred in by the County Prosecutor, rejecting his application for admission into the county's pretrial intervention program (PTI). Appreciative as we are of the very high degree of deference which the exercise of prosecutorial discretion must be accorded, our review of this record nevertheless persuades us that this is one of those special and extraordinary cases where defendant has borne his heavy burden of proving that the denial of his application constitutes a gross and patent abuse of discretion within the intendment of State v. Leonardis II , 73 N.J. 360 (1977). We believe the reasons for this conclusion are self-evident, as they should be, in a recital of the alleged criminal episode and the pertinent factors relating to defendant's personal situation.

On February 15, 1978 defendant, then 19 years old, was living in Howell Township with his mother and stepfather in a house owned by them jointly. He had not completed high school, had served seven months in the army from which he had been honorably discharged and was then menially employed. He had neither a juvenile nor an adult conviction or arrest record. Such problems of personality and adjustment which he did have had never before, apparently, interfered with his ability to function on a societally acceptable and unexceptionable level. Those personal problems were and continue to be directly related to his unfortunate and difficult familial situation. Defendant is the product of the union of a Puerto Rican mother and black father. His early childhood was characterized both by paternal abuse and racial identity problems which he finally resolved by accepting black identity. His stepfather, Arthur Bellengreri, is

white. The relationship between defendant and his stepfather has been difficult and strained and there was apparently a great deal of hostility and resentment shown to the boy by his mother's second husband.

On the evening in question defendant and Bellengreri became involved in a quarrel as a result of which Bellengreri called the Howell Township Police Department requesting its assistance in removing the boy from the home. Two police cars were dispatched to the house, Patrolman Roe in the first and Patrolman Raimondi in the back-up vehicle. According to Officer Roe's report, there was, upon his arrival, no breach of the peace either in progress or imminent. Rather, Bellengreri simply advised him that defendant "had been causing a disturbance in the house and on being told to leave, refused to do so." At that point Raimondi arrived and as further indicated in Roe's report, "In the presence of both officers, Mr. Bellengreri ordered Charles Ortiz from the premises." Following defendant's refusal to leave his own home, expletively expressed, "Raimondi asked Bellengreri if he owned the home. He replied yes, he was the legal owner." Roe then "gestured at the accused" and told him "he must leave, he was not wanted in or around the house." The police officers, upon defendant's continued refusal to leave, placed him under arrest. Defendant thereupon completely lost control of himself, flailing out at the officers and resisting their attempts to physically remove him from the premises. Two additional officers were summoned to the house and defendant was finally sufficiently subdued to be handcuffed. His wild resistance apparently continued while being transported to police headquarters, where he was manacled to a rail and attempted to unlock the handcuffs with a pair of scissors he had in his pocket. While one of the officers was attempting forcibly to take the scissors away from him he lashed out at the officer with a plastic "pick comb." Apparently the police had not deemed it necessary to remove grooming articles from defendant's person when he was initially taken into custody. During the entire rather

protracted episode, according to the police reports, he was in a wild frenzy, shouting obscenities and kicking the restraining bench to which he was handcuffed. He was finally placed in the county jail before being admitted to bail. As a result of these events a seven-count indictment was ultimately returned against him, charging him with four counts of assault and battery upon a police officer, one count of resisting arrest, one count of assault with offensive weapons, namely the scissors and pick comb, and one count of possession of dangerous weapons, namely the scissors and the pick comb.

In due course, defendant applied to the Monmouth County pretrial intervention program. His notice of rejection, as required by Guideline 2*fn1 stated not only specific reasons therefor, but also advised him of his opportunity to present additional materials to the Program Director "demonstrating amenability to the rehabilitative process, showing compelling reasons justifying admission and establishing that a decision against enrollment would be arbitrary and unreasonable." Four reasons for rejection were set forth, the first of which dealt with the nature of the offenses charged and the remaining three with defendant's attitude, which was evaluated by the interviewer as not conductive to short-term rehabilitation. The gist of the first reason was that the crime was within the intendment of Guideline 3(i)(3), namely, one [165 NJSuper Page 195] "deliberately committed with violence or threat of violence against another person." The second reason, after quoting from the Comment on Guideline 4*fn2 (erroneously suggested to be the text of the Guideline itself), concluded that "Throughout the interview you attempted to project the blame on your stepfather and the arresting officers. You also inferred that the 'white people' in the State of New Jersey are prejudiced toward you and your family." The third reason, after quoting from the Comment on Guideline 1(d)*fn3

(also erroneously suggested as the text of the guideline itself), concluded that "It is unlikely that your hostile feelings toward authority figures and others can be reconstructed by the time allotted for PTI. This problem may require long-term intensive counselling." Finally, the last reason, quoting from the text of Guideline 4 itself, concluded that "Throughout the interview you maintained your innocence (which is your right) but continued to forward the blame on other people and circumstances. You failed to recognize your responsibility for the alleged assault. It is my opinion that while this attitude continues, it is unlikely that behavior change can occur as a result of short-term counselling."

As this court recently held in State v. Lamphere , 159 N.J. Super. 562, 565 (App. Div. 1978), the clear intention of both Leonardis II, supra , and State v. Leonardis I , 71 N.J. 85 (1976), was to express "a broad, liberal view as to the criteria to be utilized for admission to a PTI program." Given that liberality and the salutary rehabilitative purpose of PTI, we believe that the rejection here was predicated on what may fairly be characterized as a gross misapplication and misconception of both the letter and the ...


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