On appeal from the Superior Court, Appellate Division, whose opinion is reported at 160 N.J. Super. 490 (1978).
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 101] As in State v. Bender, 80 N.J. 84 (1979), decided this day, this case requires us to pass upon the propriety of a prosecutorial decision rejecting a defendant's application for enrollment into a county Pretrial Intervention Program. That is, we must decide whether the defendant here involved has "clearly and convincingly" established that the prosecutor's veto constituted "a patent and gross
abuse of his discretion." State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II).
At the time of the incident to be described below, defendant was 18 years of age. He is presently employed at a full-time job and is living at home with his parents. His high school transcript indicates that he voluntarily withdrew from school immediately prior to his scheduled graduation. Aside from the event here at issue, he has no criminal record whatsoever.
On September 21, 1977, defendant was charged with breaking and entering with intent to steal. N.J.S.A. 2A:94-1. Specifically, the State alleged that during the early morning hours of June 20, 1977, defendant forcibly entered a luncheonette located on the Belmar Boardwalk and absconded with eleven packs of cigarettes, two bags of popcorn, one candy bar, and $3.00 in cash -- items whose total value equalled less than $10.00. Defendant was found on the nearby Belmar beach in an intoxicated condition only moments after the alleged crime had been committed. According to the police, a second individual who escaped apprehension was observed in the vicinity.
On November 9, 1977, defendant applied for admission to the Monmouth County Pretrial Intervention Program. After reviewing defendant's file, the program director, on December 12, 1977, recommended that his admission be approved. Noting defendant's possible "alcohol problem," the director advised that in lieu of prosecution defendant should be evaluated at the Jersey Shore Mental Health Clinic and required to undergo the treatment procedures there prescribed. He also recommended that in light of defendant's failure to obtain a high school diploma, he attend the Asbury Park Learning Center to complete his education.
The program director's recommendation notwithstanding, on December 30, 1977 the prosecutor notified defendant that the State would not consent to his admission into PTI. The reasons advanced in support of this rejection were:
1. [Defendant possesses an] attitude not conducive to PTI because [he] refused to cooperate with law enforcement officials by naming his companion in the breaking and entering.
2. A desire by the Belmar Police that a record of defendant's criminal involvement be kept because they felt he was on the periphery of other criminal investigations.
Later, at the hearing challenging the prosecutorial veto, a third reason was added -- the serious nature of the crime with which defendant was charged.
On January 13, 1978, defendant moved in the Superior Court that he be enrolled in PTI over the objections of the prosecutor. In addition to reciting the information sketched above, defendant's attorney produced a letter signed by the Alcohol Counselor at the Community Health Center where defendant had already begun voluntary treatment. While generally emphasizing defendant's good prospects for rehabilitation, the letter noted that defendant "evidence[d] the initial signs of" a genuine alcohol abuse problem. Defendant also made clear at the hearing that on the advice of counsel he had informed the prosecutor that he would not identify his alleged accomplice unless and until he was guaranteed admission to PTI. Indeed, defendant's counsel noted that the name would be immediately disclosed should the prosecutor consent to his diversion.
After reviewing the materials submitted, the trial judge concluded that defendant had failed to "carry the heavy burden of showing clearly and convincingly compelling reasons justifying admission" and hence refused to overturn the prosecutor's decision. The Appellate Division, one judge dissenting, reversed and ordered that defendant be enrolled. State v. Maddocks, 160 N.J. Super. 490 (App. Div. 1978). The appellate majority concluded that defendant's refusal to divulge his accomplice's identity until assured PTI admission was a "reasonable" position which should not have affected his eligibility. It ...