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State v. Smith

Decided: October 9, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERRY VON SMITH, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Hudson County.

Allcorn, Kole and Pressler. The opinion of the court was delivered by Pressler, J.A.D.

Pressler

[177 NJSuper Page 204] We have before us on this appeal a criminal conviction which we are constrained to reverse as a matter of fundamental justice. The core issues here arise out of the administration of a county pretrial intervention program (PTI) during its developmental period and prior both to the adoption of the PTI Guidelines by the Supreme Court in September 1976 and to the explication, clarification and refinement of the program afforded

by the Supreme Court in State v. Leonardis (Leonardis I) , 71 N.J. 85 (1976), and State v. Leonardis (Leonardis II) , 73 N.J. 360 (1977). Indeed, the PTI events here involved commenced even before the extensive April 1974 amendment of R. 3:28, and hence at a time when that rule's authorization for diversionary programs was still in the initial and rudimentary form of its original 1970 adoption. We, therefore, regard the problems now before us as largely attributable to the then frontier stage of PTI.*fn1

An indictment was returned in November 1973 against defendant Terry Von Smith, then 19 years old and without a prior criminal record, charging him with a variety of offenses arising out of a single armed robbery. He applied for admission to the Hudson County diversionary program in December 1973. That application was not acted on for some six months because of an initial disagreement between the program director, who believed that Von Smith was an eminently suitable candidate for the program, and the county prosecutor, who was reluctant to consent because of the serious nature of the crime. Following the prosecutor's initial rejection of the application, however, a new program director was appointed, who concurred in his predecessor's evaluation and was ultimately successful in procuring the prosecutor's agreement to admit defendant to the program. His admission to the program was formally accomplished by court order entered in June 1974 approving defendant's enrollment therein for a period of three months. Although the April 1974 revision of R. 3:28 permits an initial enrollment of six

months (R. 3:28(b)), the earlier version of the rule had permitted enrollment for an initial period of only three months, and we assume that in ordering enrollment of the defendant for the lesser period, the judge was simply unaware of the then recent rule change and had not intended to curtail the initial permissible period of defendant's program participation. Thus, according to that first order, defendant's situation was required to have been reviewed by the court in September 1974. For reasons which remain unexplained that review did not take place until April 1975, some eight months later, when, on recommendation of the program director, concurred in by the prosecutor, a different judge continued defendant's enrollment for an additional three-month period, terminating on July 24, 1975.

The program director submitted a report to the prosecutor on July 7, 1975, recommending dismissal of the 1973 indictment based on his conclusion that defendant had successfully completed the program. The prosecutor then gave his written consent, albeit reluctantly, to the dismissal. The truncated record before us does not indicate what, if anything, transpired procedurally between July 1975, when the final report was submitted, and March 1976, when the program director formally petitioned the court in the presence of the prosecutor and defendant for dismissal of the indictment and defendant's discharge from the criminal process. It is, however, clear that that hearing took place almost 2 1/2 years following both the return of the indictment and defendant's actual participation in the program, which dated from the filing of his original application for admission thereto, and some 21 months following his formal enrollment therein.

The judge who presided at the March 1976 hearing entered an order denying the petition to dismiss the indictment, terminating defendant's participation in the program, and returning him to the criminal process. Defendant's motion to this court for leave to appeal that order was denied, and he was ultimately tried and convicted of the armed robbery in December 1978 by a different judge sitting without a jury. The prison sentence then

imposed upon him was suspended and he was placed on five years' probation.

On this appeal defendant again urges, among other challenges to the conviction,*fn2 that the March 1976 order returning him to the criminal process was improvidently entered and that he was then entitled to dismissal of the indictment. We agree with this contention, having the benefit, which the trial judge did not, of the development of the law governing PTI in the intervening 4 1/2 years. We reach our conclusion based on the record before the trial judge and with full appreciation of the reasons for his action.

The representations made to the trial judge by the program director at the March 1976 hearing regarding defendant's personal situation and program participation since December 1973 were and continue to be unchallenged. In short, defendant actively participated in the program from December 1973 until at least the date of the hearing, regularly attending a variety of counselling and therapy sessions and being employed in a janitorial capacity at the program offices for an extended period of time. He had not engaged in any further criminal activity during this period. The legitimate concern of the trial judge, despite these highly favorable circumstances, centered about defendant's obviously severe psychiatric problems. Shortly after his program admission defendant had been diagnosed as suffering from paranoid schizophrenia and he had been institutionalized in Trenton State Hospital in February 1975 following an acute toxic psychosis due to what is described ...


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