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State v. Hermann

Decided: May 24, 1979.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 160 N.J. Super. 283 (1978).

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


[80 NJ Page 124] In State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II), we held that our trial courts possessed the power to order a defendant enrolled in a county pretrial intervention program (PTI) over the objections of the prosecutor if the defendant could "clearly and convincingly" demonstrate that the prosecutor's veto constituted a "patent and gross abuse of his discretion." Id. at 382. We also noted that in order that the goals underlying PTI not be subverted through wholesale diversions, prosecutorial decisions approving admission into the program would also be subject to "meaningful" judicial review. Id. at 375. However, because the factual pattern presented in Leonardis II did not involve an instance of prosecutorial consent to PTI diversion,

we were not required to specify the standards to be utilized by trial judges in undertaking this "meaningful" review. In this case, we are called upon to delineate those standards.

The facts of the present controversy are not in dispute. At the time of the events to be described below, defendants Robert Hermann and Frederick Jones were employed as teachers at Hunterdon Central High School in Flemington. On June 30, 1977, Hermann was indicted for the knowing receipt and possession of stolen property valued in excess of $200 (N.J.S.A. 2A:139-1) and Jones was charged with willingly aiding and abetting the commission of the crime (N.J.S.A. 2A:85-14). Specifically, the State alleged that on April 6, 1977, a student at Hunterdon Central High had sold to Hermann lumber which had been pilfered from a construction site in Hunterdon County, and that Jones had deliberately referred the student to Hermann in order to facilitate the consummation of the sale.

In June of 1977, both defendants applied for admission to the Hunterdon County PTI program. After reviewing their respective submissions, the program coordinator recommended that their applications be approved. The prosecutor concurred in the coordinator's conclusions, and on September 2, 1977 consented to the PTI diversion of Hermann and Jones.

This prosecutorial consent was given despite the contrary opinions of both Raritan Township's Director of Public Safety and Hunterdon Central High School's Board of Education. The Board and the Public Safety Director believed that the "sensitive" nature of defendants' employment mandated that defendants stand trial and be convicted or acquitted of the charged offenses. PTI diversion, they maintained, would "leave the impression with young people that breaking the law is an acceptable practice" as well as "negate [defendants'] effect as disciplinarians" within the school system.

On October 25, 1977, the prosecutor's decisions to divert were submitted to a trial judge for approval. Despite his conclusion that these determinations "were not arbitrary or capricious," the judge rejected both applications. In his view, a court reviewing a prosecutorial decision approving PTI admission was entitled to exercise "judicial discretion." Finding that the crimes with which defendants were charged constituted breaches of the special trust reposed in them as school teachers by parents and the public at large, see Guideline 3(i)(4), he concluded that, in the interests of justice, defendants should stand trial and "be subjected not only to the rehabilitation portion of the sentencing process (of which PTI may be considered * * * a substitute) but also to the punitive and deterrent aspects thereof."

On June 27, 1978, the Appellate Division affirmed the trial court's decision. State v. Hermann, 160 N.J. Super. 283 (App. Div. 1978). In its view, the "patent and gross abuse of discretion" standard of review enunciated in Leonardis II was applicable solely to situations in which a prosecutor rejects a defendant's PTI application. Where, as here, the prosecutor has consented to enrollment, the appellate court concluded that the prosecutorial decision must be more closely scrutinized and could be overturned should a trial judge determine, as had the judge in the present case, that PTI diversion would be contrary to the "interests of justice." We granted the motions filed by defendants and the State for leave to appeal. We now reverse.


Resolution of the issue here presented must begin with an examination of the reasoning which led to our holding in Leonardis II. In that case, we ruled, inter alia, that judicial review of the determinations made by program coordinators and prosecutors pursuant to R. 3:28 and the PTI Guidelines does not contravene the ...

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