On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
Halpern and Ard. The opinion of the court was delivered by Halpern, P.J.A.D.
We granted leave to appeal in order to evaluate the decision of the trial judge who ordered the diversion of three defendants into the Hunterdon County Pretrial Intervention Program (PTI). In doing so the trial judge overruled the prosecutor's disapproval of the diversion. The requests for diversion had previously been investigated and acted upon favorably by the PTI program coordinator.
We approach the issue confronting us with full realization of the limited scope of review exercised by the judiciary in these cases, namely, that the trial judge must accord great deference to the prosecutor's refusal to consent to PTI diversion; that a heavy burden rests upon a defendant who seeks to overcome a prosecutorial veto of his admission into PTI, and that we are mandated to interpret the Guidelines promulgated by the Supreme Court on September 8, 1976 to supplement R. 3:28 so as to require a defendant, seeking to upset a prosecutor's action, to show that his refusal was arbitrary and capricious (Guideline 8) and amounted to a patent and gross abuse of discretion. State v. Leonardis , 73 N.J. 360, 381-382 (1977) (Leonardis II); State v. Maddocks , 160 N.J. Super. 490, 493 (App. Div. 1978); State v. Bender , 159 N.J. Super. 465, 469-470 (App. Div. 1978); State v. Atley , 157 N.J. Super. 157, 162 (App. Div. 1978); State v. Barrett , 157 N.J. Super. 96, 101 (App. Div. 1978); State v. Markt , 156 N.J. Super. 486, 491 (App. Div. 1978); State v. Litton , 155 N.J. Super. 207, 217-218 (App. Div. 1977). With these standards in mind we have considered the entire record and affirm the action of the trial judge in permitting diversion of the three defendants despite the prosecutor's objections.
For a better understanding of our decision it is essential that we distill the undisputed facts appearing in the record. Various complaints were made against the three defendants, Scott Maguire, Dominic Papa and Daniel K. Breen, arising out of their having broken several large windows at the Hunterdon Central High School on October 13, 1976 and,
on the same night, for breaking and entering a Photomat store with the alleged intent to steal. Papa was caught by the police in the Photomat store. A fourth companion, Gary Olsen, was also involved in the escapade but he is not involved in this appeal.
None of the three defendants had a juvenile or adult criminal record. Admittedly, we are not confronted with a typical case of criminal violence; rather, it falls into the category of "victimless crime" resulting in malicious damage to property. We note in passing that defendants have offered to pay for the damage done.
Breen applied for PTI admission on February 24, 1977 and was recommended for the program on March 31, 1977. Papa applied on March 21, 1977 and was also recommended on April 11, 1977. Maguire applied on April 15, 1977 and was also recommended on July 1, 1977. The applications and recommendations were sent to the prosecutor on August 2, 1977. The indictments arising out of the charges here involved were returned by the grand jury on April 29, 1977. The prosecutor did not notify the three defendants of his refusal to consent to their diversion into PTI until December 1, 1977. His reasons for rejecting the applications were contained in three separate letters to the program coordinator, but each one contained exactly the same wording and will be referred to hereinafter. Following a hearing the trial judge overruled the prosecutor's objections and ordered PTI diversion for the three defendants. We granted the State leave to appeal and consolidated the appeals.
The evaluative reports and recommendations for each defendant, as made by the counseling supervisor of the Hunterdon County PTI program, are set forth verbatim and annexed to this opinion for a better understanding of the facts. For the purpose of brevity we have not attached other portions of the supervisor's evaluative reports because they had no material bearing on his ultimate recommendations.
A brief synopsis of each evaluation follows:
Maguire is 23 years old and has no prior criminal record. He is a college graduate who has been steadily employed since graduation. He has, or had, an alcohol problem, but the supervisor felt the overall picture called for his "strongly" recommending him for PTI on certain stated conditions.
Breen is 22 years old and has no prior criminal record. He is a high school graduate and lives in the home of his parents. He is gainfully employed and has been commended by his employer as "a reliable worker, respected by the staff [other employees]." The supervisor also recommended him for PTI on certain stated conditions.
Papa is 19 years old and also has no prior criminal record. He is a high school graduate and is gainfully employed. He is anxious to enlist in the United States Navy. The Naval Recruiting Officer indicates that based on Papa's excellent test scores he qualified for any naval program offered, and he would accept him if his present difficulties were resolved. The supervisor also recommended him for PTI on certain stated conditions.
In refusing to consent to defendants' diversion, the prosecutor wrote, as to each defendant, the following letter to the PTI coordinator:
Dr. Richard Achey, Coordinator, Pretrial Intervention Program, Five Mine Street, Flemington, New Jersey 08822
I have reviewed the Evaluative Report and Plan of Counseling/Supervision for the above applicant to the Hunterdon County Pretrial Intervention Program, as well as our file in this matter.
These charges stem from a series of incidents on October 13, 1976, in which defendant was involved along with Gary Olson [sic], Scott McGuire [sic] and Daniel K. Breen. The allegations of the complaint indicate the smashing of a large plate-glass
window at Hunterdon Central High School and breaking into a Photomat store in the Borough of Flemington.
I am not consenting to the recommended postponement of charges in this matter. One of the codefendants, Gary Olson, has not filed an application for Pretrial Intervention, and allowing the other defendants into this Program would deter effective prosecution of that individual. In addition, alternate means of prosecution available to this office would indicate a greater likelihood of rehabilitation of the defendant. By utilizing simple disorderly persons charges, if agreed to by defendant, probation for a reasonable period of time, incarceration and fine are all available to impress upon this defendant the seriousness of the offense involving destruction of personal property and, hopefully, to deter him and others who might be curious as to law enforcement's reaction to this type of activity, which has been all to [sic] prevalent in this community.
In addition, the Evaluative Report indicates an interest on the part of this defendant to join the United States Navy. Such enrollment would not be imperiled by a disorderly person conviction.
Finally, the varying degrees of culpability of the defendants and varying degrees of involvement with the law in the case of each of the defendants makes it difficult to separate them in treatment between Pretrial Intervention and non-Pretrial Intervention. The flexibility is much greater in this respect by maintaining all defendants within the system and tailoring the sentencings, in the event of convictions, to their respective needs and in accordance with these degrees of culpability.
With kindest regards, I am
[signed] OSCAR W. RITTENHOUSE, County Prosecutor
We find the reasons given by the prosecutor for refusing to consent to diversion to be arbitrary and capricious, and a patent and gross abuse of discretion.*fn1 His stated objections to ...