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State v. Bender

Decided: May 24, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEROME BENDER, R.P., DEFENDANT-APPELLANT



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 159 N.J. Super. 465 (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.

Pashman

[80 NJ Page 87] In this and the companion cases of State v. Sutton, 80 N.J. 110 (1979), and State v. Maddocks, 80 N.J. 98 (1979), we are called upon to review prosecutorial decisions denying defendants admission into particular county pretrial intervention programs, see R. 3:28. Proper disposition of each of these cases requires both an application of the standard of review enunciated in State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II), and the interpretation of various provisions of the Guidelines adopted by this Court relating to the operation of PTI programs, see Pressler, Current New Jersey Court Rules, Guidelines 1-8 at 497-503 (1978) [hereinafter Guidelines]. Inasmuch as the factual patterns and legal principles involved in each of these cases

differ in several material respects, we have chosen to treat each matter in a separate opinion. Certain principles, however, are equally applicable in all three cases and will be dealt with at the outset of the present ruling.

I

Introduction

Pretrial Intervention (PTI) is a program whose chief aim is that of diverting individuals with high rehabilitative prospects from the traditional channels of the criminal process. Sponsored in conjunction with counseling and training services, the project provides alternatives to prosecution and conviction where the latter course would be "counterproductive, ineffective or unwarranted." State v. Leonardis, 71 N.J. 85, 89 (1976) (Leonardis I). By relieving a certain class of criminal suspects of the time-consuming and often debilitating rigors of the criminal process as well as the stigma which attaches upon conviction of crime, PTI provides an avenue through which rehabilitation may more easily be accomplished. See Leonardis I, supra, 71 N.J. at 89-90, 92-102; State v. Senno, 79 N.J. 216, 227-228 (1979); Guideline 1 (a)-(c). Another goal of the program is that of expediting the disposition of criminal matters in order that the caseload burdens of our trial courts be alleviated. See Leonardis I, supra, 71 N.J. at 89-90, 92-102; State v. Senno, supra, 79 N.J. at 228; Guideline 1(d).

The history of PTI in New Jersey, the policy considerations which led to our adoption of the program through R. 3:28, and the project's procedural workings have been fully outlined in Leonardis I, and need not here be repeated. See 71 N.J. at 92-107. Nor do we perceive any necessity to reiterate the reasoning which led to our holding in Leonardis II that prosecutorial decisions rejecting defendants' applications for PTI are subject to judicial review. See 73 N.J. at 375-380. Because of their special relevance to the cases

presently before us, however, certain of the principles enunciated in the Leonardis decisions must be set forth.

Leonardis I makes clear that defendants who have been accused of any crime are eligible for enrollment in PTI, and that admission is to be measured according to (a) the individual's amenability to correction, (b) his responsiveness to rehabilitation, and (c) the nature of the offense with which he is charged. See 71 N.J. at 121-122; Guidelines, Introduction and Guidelines 2, 3. Further, decisions made by judges, prosecutors, and program coordinators in granting or denying applications for PTI enrollment, as well as the underlying reasons therefor, must be reduced to writing and disclosed to the defendant. See 71 N.J. at 122; Guideline 8.

In Leonardis II, we noted that although every person accused of crime is eligible for PTI in the sense that his application must be given consideration, a prosecutor's refusal to divert can, where appropriate, be based solely on the nature of the offense charged. See 73 N.J. at 382; Guideline 3(i). Further, State v. Senno, supra, establishes that nonindictable offenses are not encompassed within the meaning of the term "crime" as used in R. 3:28 or the Guidelines, and hence a county is free to exclude from its program individuals accused of disorderly persons and motor vehicle infractions.

In Leonardis II, we held that judicial review of prosecutorial decisions denying admission into PTI does not contravene various state constitutional provisions. However, cognizant of the separation of powers concerns raised by such a procedure, we severely limited the scope of any review that would be undertaken. We emphasized that "great deference should be given to the prosecutor's determination not to consent to diversion" and that a defendant must sustain a "heavy burden . . . in order to overcome [such] a prosecutorial veto . . ." 73 N.J. at 381. Accordingly, we held that in order for a court to nullify the prosecutor's decision, the

defendant must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of his discretion." Id. at 382; See Guidelines 2, 3(i), 8.

II

Facts of This ...


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