On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- 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 113] This case constitutes the third and final controversy presented to us today involving the propriety of a prosecutor's refusal to sanction a defendant's admission into a county Pretrial Intervention Program (PTI), see R. 3:28. As in State v. Bender, 80 N.J. 84 (1979) and State v. Maddocks, 80 N.J. 98 (1979), we are here called upon to determine whether defendant has "clearly and convincingly" established that the prosecutor's rejection of her PTI application was based upon "a patent and gross abuse of his
discretion." State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II).
Defendant is the mother of two children, aged 9 and 11. Her husband having abandoned the family household at some point in 1972, defendant applied for and was granted public assistance from the Somerset County Welfare Board in the amount of $310 per month. Aside from the events to be described below, she has never been arrested or charged with the violation of any law.
On July 27, 1977, the Welfare Board filed a complaint in the Somerville Municipal Court alleging that defendant had unlawfully received $6,292 in public assistance funds and $1,528 in food stamps over a four and one-half year period. These charges stemmed from the fact that, as a recipient of welfare assistance, defendant had submitted a signed statement to the Board in which she promised to report any changes in her current income. The Board contended that from September 1972 until April 1977, defendant was paid approximately $50 per week as a part-time school bus driver, and that contrary to N.J.S.A. 2A:111-2 she deliberately failed to disclose these outside earnings to the Board. Had she done so, her welfare allotments would have been reduced.
On July 29, 1977, defendant applied for admission to the Somerset County Pretrial Intervention Program. Having reviewed defendant's application, the program coordinator, on September 9, 1977, recommended that defendant not be enrolled. The prosecutor concurred in this conclusion, and by letter dated September 15, 1977 notified defendant that the State would not consent to her admission. The reason underlying the prosecutor's rejection was cursorily stated as:
New Jersey Supreme Court Guideline # 3(i)(2) . . . part of a continuing criminal business or enterprise.
In accordance with Guideline 3(i), defendant then submitted additional materials in order to demonstrate her eligibility for PTI. Although admitting that she had failed
to disclose her outside income to the Board, defendant disputed the amount which the State claimed she had illegally obtained. Instead of the $7,820 of excess payments asserted by the Board, she claimed that she had at most received $2,800 in additional public assistance. She also pointed to the "minimal" nature of the sums she had earned in outside employment ($50 per week) and emphasized that her conduct had been precipitated by her desire to adequately feed and clothe her two minor children. Finally, defendant contended that her crime did not constitute a "continuing criminal business or enterprise" within the intendment of Guideline 3(i)(2) and noted her belief that others who had been charged with similar offenses had been granted PTI admission.
By letter dated October 14, 1977, defendant was informed that the decision to reject her application would "not be reversed." Defendant therefore moved in the Superior Court that she be admitted to PTI over the objections of the prosecutor and program coordinator.
At the hearing which ensued, the prosecutor did not attempt to dispute defendant's contention that only $2,800, as opposed to $7,820, had been illegally received. Rather, he emphasized that defendant's unlawful conduct had taken place over a four and one-half year period, and that this fact alone constituted adequate justification for the State's refusal to divert her into PTI.
After reviewing the submitted materials, the trial judge ruled that the prosecutor's decision amounted to a patent and gross abuse of discretion, and this despite his acknowledgement that the crime involved was "serious" in nature. Two reasons underlay his determination. First, the judge took "judicial notice" of the number of PTI applications which he had approved.
which [had] been recommended by the director and, presumably, [had] not been objected to by the Prosecutor's Office, where a person [was] charged with the same offense [as was ...