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State v. Dalglish

Decided: July 7, 1981.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
LAWRENCE DALGLISH, DEFENDANT-RESPONDENT



On certification to the Superior Court, Law Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Pashman, J.

Pashman

In State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II), this Court enunciated the standard of review of prosecutorial decisions denying admission into pretrial intervention (PTI) programs created under R. 3:28. We held that a 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" before a court may order his enrollment in a PTI program without prosecutorial consent. Id. at 382. Subsequently the Legislature enacted a statewide program of pretrial intervention as part of the Code of Criminal Justice. See N.J.S.A. 2C:43-12 to -22. The Code essentially adopted the guidelines and procedures previously followed under R. 3:28, but is silent as to the standard of review of prosecutorial decisions. In this case, we must decide whether the standard of review set forth in Leonardis II governs review of prosecutorial decisions under the statutory program of pretrial intervention. We hold that it does, at least when a defendant seeks enrollment in PTI without the consent of the prosecutor.

I

Defendant is a licensed medical doctor who has practiced in this State for over 20 years. Prior to the events in this case, he had never been accused of a crime or otherwise involved in criminal matters.

The indictment against defendant grew out of a marital dispute. Defendant suspected his wife of adultery. To verify his suspicions, defendant allegedly placed an illegal wiretap on the telephone of their marital home sometime in the late spring of 1979. After he confronted his wife with the fact that he had

tapped their telephone and heard her conversations with her alleged lover, marital relations worsened. Finally, in July 1979 defendant's wife locked him out of their home and filed a complaint seeking divorce on the ground of extreme cruelty. Defendant counterclaimed for divorce on the ground of adultery.

Defendant admits that he continued to record his wife's conversations until the judge in the matrimonial action ordered him to cease and desist in late 1979. He contends that he never intended to use the information for a criminal purpose such as to coerce his wife to accept a favorable divorce settlement or to engage in sexual acts as the State claims. Instead, he wanted only to end his wife's adulterous relationship and to be able to refute the lies he claims his wife was going to present in the divorce action.

In February 1980 defendant's wife went to the police and complained about the wiretap. On March 25, 1980, the day after the parties were granted a divorce in accordance with a settlement, the Essex County grand jury handed down a six-count indictment charging defendant with unlawful interception, use, and disclosure of a wire or oral communication, N.J.S.A. 2A:156A-3(a), (b), (c), possession of an interception device, N.J.S.A. 2A:156A-5(a), and criminal coercion, N.J.S.A. 2C:13-5. Defendant then applied for enrollment in the Essex County Pretrial Intervention program. The program director rejected the application, offering the following explanation in his letter to defendant:

The alleged offense you are charged with continued for an extended period of time and contains many complicated issues. The value of Pretrial Intervention is outweighed by the public need for the judicial process to continue.

After defendant filed a motion seeking review of this decision, the county prosecutor also informed him that his application was being rejected for the following reasons:

This offense, which continued for an extended period of time, was a blatant violation of [your ex-wife's] basic Constitutional rights, and the value of Pretrial Intervention is ...


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