This matter comes before the court on defendant's motion for discovery in connection with his application to the Somerset County Pretrial Intervention (PTI) Program. Defendant was charged on complaint with possession of a pistol without a permit on December 28, 1978. Shortly thereafter he applied for admission to PTI. By letter dated February 20, 1979 the program coordinator rejected defendant's application for the following reasons:
New Jersey Supreme Court Guideline 1(d) * * * Records indicate that your personal problems are such that they are beyond the P.T.I. time limit. Also, Guideline 3(i) * * * Nature of the offense. Investigative reports indicate that at the time of your arrest, you had a fully loaded, cocked pistol in your possession. On Jan. 23, 1979 you were interviewed by a member of the P.T.I. Program staff. Your background and circumstances as supplied by you have been taken into consideration in reaching this decision.
The letter also indicated that defendant had 15 days in which to submit additional information in support of his application. Defendant's attorney notified the program coordinator of his intention to submit additional materials and to request reconsideration of the application. In order to do so, however, he sought copies of the records and reports alluded to in the February 20 letter of rejection. The program coordinator responded that he could not release the materials: investigative reports were provided by the prosecutor's office with instructions that they could not be disclosed, and medical reports could not be released except upon court order.
The instant motion for discovery is therefore directed at both the county prosecutor's office and the PTI coordinator,
seeking disclosure of "all medical reports and records and police reports which were considered by PTI and the Prosecutor in their determination that the defendant should be rejected by PTI." Briefly, defendant argues that it is impossible to request reconsideration of his application, or subsequently upon judicial review of the rejection, to sustain the heavy burden of showing a patent and gross abuse of discretion (State v. Leonardis , 73 N.J. 360, 382 (1977) (Leonardis II)), without access to records and reports which PTI considered in processing his application. Defendant also notes that under the PTI Guidelines, R. 3:28 Guideline 8, and State v. Atley , 157 N.J. Super. 157 (App. Div. 1978), an applicant must be given a full statement of reasons for rejection, rather than mere conclusions couched in terms of the guidelines.
The prosecutor and the program coordinator argue as a preliminary matter that only in the context of full-blown hearings is discovery available under R. 3:13-3 before an indictment or accusation is filed. Although it is true that under Leonardis II , judicial review of PTI determinations "should be of an abbreviated and informal nature." 73 N.J. at 383, R. 3:13-3 does not actually specify that discovery is ordinarily available only after indictment or accusation. Rather, R. 3:13-3(e) and the comment thereto suggest that "within 10 days after the entry of the plea" is the latest point at which a defendant may request discovery, in order to facilitate his preparation and filing of timely pretrial motions based on discovered information. In addition, the courts of this State have long possessed inherent power to order discovery in the interest of justice. As the court in State v. Cook , 43 N.J. 560 (1965), remarked in discussing the evolution of New Jersey's criminal discovery rules:
See also, State v. Satkin , 127 N.J. Super. 306, 310 (App. Div. 1974), holding that "[t]he fact that a particular disclosure is not specifically mentioned in the Rules should not prevent a judge in an appropriate case from granting relief to defendant and compelling disclosure to be made." Therefore, it is clear that irrespective of the exact point at which R. 3:13-3 authorizes discovery, this court has the power to order disclosure if necessary and appropriate in the instant case.
State v. Forbes , 153 N.J. Super. 336 (Cty. Ct. 1977), and State v. White , 145 N.J. Super. 257 (Cty. Ct. 1976), are cited in support of the contention that discovery is inappropriate in the context of PTI proceedings and the limited judicial review available therefrom. These cases, however, considered requests for access to information that went far beyond the contents of each of defendant's files. In Forbes defendant sought by subpoena the testimony of the PTI program director, as well as all PTI application files opened since the program's inception, in order to show that his rejection had been arbitrary and capricious. 153 N.J. Super. at 338, 340. Similarly, in White defendant sought to take testimony from a PTI staff member in order to shed light on her mental processes and to determine the value given to the information considered. 145 N.J. Super. at 259. The issue in both cases was resolved on the ground that the requested information had not been considered in processing the defendants' respective applications. The information was therefore irrelevant on appeal, since the reviewing court's duty is "solely to review the action of the director on the material submitted * * * by the applicant , balancing that action against the standard of arbitrariness and capriciousness." State v. White, supra , 145 N.J. Super. at 261 [emphasis supplied]; State v. Forbes, supra , 153 N.J. Super. at 341. See also Leonardis II , 73 N.J. at 383; State v.
Sutton , 80 N.J. 110, at 119-122 (1979). Defendant's motion for discovery in the case at hand, however, is limited strictly to materials contained in his own file and presumably considered by the program coordinator, presenting an issue upon which White and Forbes have little bearing.*fn1
State v. Masucci , 156 N.J. Super. 272 (Law Div. 1978). also cited in opposition to defendant's motion for discovery, involved a subpoena directed at the prosecutor and the PTI director, seeking the testimony of the author of defendant's PTI evaluation as well as various materials contained in his application file. The avowed purpose of the subpoena was to enable defendant to demonstrate on appeal that his rejection was based upon a deficient investigation and inaccurate information. Id. at 277. The judge noted that it is the obligation of the applicant to submit all pertinent information, and that the scope of any investigation otherwise undertaken is within the sound discretion of the program director. "If the Director's investigation is deficient, it will not sustain his conclusion and his arbitrariness will be readily discernible." Id. at 278-279. The judge also held that errors in the circumstances of the alleged offense could only be resolved at trial, and that errors or omissions concerning the applicant's background could be raised on appeal by affidavit. Id. Regarding the contents of defendant's file, the judge held that ...