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State v. Senno

Decided: February 27, 1979.


On certification to Passaic County Court (A-183 State v. Senno). On certification to Union County Court (A-184 State v. Kenny). On appeal from Superior Court, Appellate Division (A-185 State v. Buonura).

For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the Court was delivered by Mountain, J.


[79 NJ Page 221] The defendants in each of these three cases stand charged with the commission of a nonindictable offense.

Defendant Senno was accused of shoplifting in violation of N.J.S.A. 2A:170-97. A person convicted of this offense is a disorderly person. N.J.S.A. 2A:170-98. Defendant Kenny was accused of three offenses: unlawful taking, receiving and possessing stolen property valued at less than $200 in violation of N.J.S.A. 2A:170-41.1; possession of a hypodermic syringe in violation of N.J.S.A. 2A:170-77.5; and possession of less than 25 grams of marijuana in violation of N.J.S.A. 24:21-20a(4). Conviction of each of these offenses renders a defendant a disorderly person. N.J.S.A. 2A:170-41.1; 2A:170-77.6; 24:21-20a(4). Defendant Buonura was charged with operating a motor vehicle while under the influence of alcohol in violation of N.J.S.A. 39:4-50(a). This is a motor vehicle violation.

In each instance, the pretrial intervention (PTI) program in the county where the infraction occurred limits eligibility for entry into the program to persons who have been charged with indictable offenses. Each of these defendants has been excluded from the PTI program to which he or she applied because the offenses with which they are respectively charged do not fall within this classification. The initial issue raised by these appeals, then, is whether such a limitation comports with our rule of court, R. 3:28, and accompanying Guidelines.*fn1 If it is determined that it does, each defendant further argues (1) that there is a violation of equal protection in that a classification which limits eligibility to those charged with indictable offenses is constitutionally

impermissible; and (2) that to admit those charged with nonindictable offenses to a PTI program in certain counties but not in others similarly results in an equal protection deprivation.

We conclude that neither Rule 3:28, the Guidelines nor the Constitution requires that the opportunity for diversion from the conventional criminal justice system, via PTI, be made available to those charged with nonindictable offenses.

In New Jersey, whether a person charged with an offense is entitled to the protections afforded by indictment depends on whether the offense with which the person is charged is criminal. See N.J. Const. (1947), Art. I, para. 8. Misdemeanors and high misdemeanors are classified as crimes and proceedings against persons charged with such offenses must be by way of indictment. In re Buehrer, 50 N.J. 501, 517 (1967). In contrast, disorderly persons offenses and motor vehicle violations are considered petty offenses. N.J.S.A. 2A:169-4; State v. Macuk, 57 N.J. 1, 9 (1970). Although certainly penal in nature, infractions which fall "within the generic category of 'petty offenses'" are not, strictly speaking, criminal in nature, and, because the direct and collateral consequences of conviction are more "limited," those so charged may be tried without indictment. In re Buehrer, supra, 50 N.J. at 518. This distinction between indictable and nonindictable offenses has been a longstanding one in the jurisprudence of our State. See generally State v. Maier, 13 N.J. 235 (1953).

A careful examination of Rule 3:28 and the accompanying Guidelines leads to certain relevant conclusions. First, as is set forth in a statement prefatory to the Guidelines, "every defendant who has been accused of any crime shall be eligible for admission into a PTI program." (Emphasis added). Substantially the same statement appears in Guideline 2 and in Guideline (3)(i). Thus anyone charged with an indictable offense is obviously eligible. No PTI program can make an exception to this rule.

Although not as obvious, it is also certain that the Rule and Guidelines contemplate that a program may make provision for the inclusion of persons charged with nonindictable offenses or specified types of such offenses. Rule 3:28(b) speaks of eligibility where a defendant has been charged "with a penal or criminal offense." Similarly, Guideline 3(c) indicates clearly that defendants "charged with criminal or penal offenses" may be enrolled in a PTI program. (Emphasis added). Furthermore, Guidelines 6 and 7 lay down procedures to be followed only in the case of an "indictable offense," a limitation that would not be necessary were nonindictable offenses never to be considered. Finally, Guideline 1(e) states that one of the purposes of pretrial intervention is "to deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention." (Emphasis added). The foregoing examination makes it apparent that Rule 3:28 and the Guidelines were intended to be permissive with respect to the inclusion of nonindictable offenses in county PTI programs. Accordingly, they should be read to say that while a program need not make provision for persons accused of nonindictable offenses, it may nevertheless do so.

It is, of course, true that in State v. Leonardis, 71 N.J. 85 (1976), reaff'd on rehearing, 73 N.J. 360 (1977), this Court expressly disapproved the employment of exclusionary PTI eligibility criteria based "solely on the nature of [the] crime" charged. 71 N.J. at 102. We there found that the categorical exclusion of persons charged with crimes classified as "heinous" placed unwarranted emphasis on the offense while ignoring other factors more directly related to the underlying purposes of PTI. Id. at 111-12. We, therefore, directed that county PTI programs be modified to provide for the consideration of "[d]efendants who have been accused of any crime." Id. at 121. (Emphasis in original).

The defendants presently before the Court urge that the language of the Leonardis decision be read expansively to invalidate the blanket ...

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