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State v. Wilson

Decided: December 15, 1981.


Newman, J.s.c.


[183 NJSuper Page 88] This matter is before the court upon the State's motion to terminate Marvin Wilson from further participation in the Essex County Pretrial Intervention Program. Wilson was originally admitted into Pretrial Intervention (hereinafter PTI) on November 17, 1980, after having been charged with third-degree possession of a weapon in Indictment 2956-79. During his second period of diversion, on May 28, 1981, the Essex County grand jury indicted Wilson for second-degree robbery, allegedly committed on January 23, 1981. Wilson apparently neglected to

inform PTI of the arrest or of the indictment, although there is a provision in his participation agreement requiring him to do so. Based on this indictment, termination proceedings were instituted.

A threshold question, important to the administration of PTI, has been raised as to the due process requirements included within the "summary hearing" required by N.J.S.A. 2C:43-13(e) before termination from PTI may be accomplished. The divertee argues that PTI termination hearings must comply fully with due process requirements, including confrontation and cross-examination. It is contended that the State must present live testimony, with a full opportunity to cross-examine, and that the mere presentation of the indictment is insufficient compliance with the summary hearing to which the divertee is entitled. In response, the State argues that confrontation and cross-examination are not required if the indictment is presented at the termination hearing. The State maintains that witnesses have already been presented before an independent body which returned an indictment, prima facie proof that a crime has been committed. Since a judge need only have reason to believe that a violation occurred in order to terminate PTI, presentation of the indictment itself should be sufficient.

At the outset it should be noted that the right to a hearing before termination of a diversion program has been clearly spelled out in N.J.S.A. 2C:43-13. Subsection (e) of that statute provides:

Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program, modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced. [ N.J.S.A. 2C:43-13(e)]

The statute, however, does not define the requisites of a "summary hearing."

Two New Jersey decisions have dealt with PTI terminations and have analogized them to parole and probation revocations. These cases have suggested that the "grievous loss" suffered upon probation and parole revocation is similar to that suffered by terminated PTI participants, and that the due process required for termination of each type of program should be identical. State v. Devatt , 173 N.J. Super. 188, 194 (App.Div.1980); State v. Lebbing , 158 N.J. Super. 209, 214-15 (Law Div.1978). Each of these cases, however, is distinguishable from the case at bar on the facts. Additionally, a comparison of the statute and guidelines governing PTI and the statutes and case law governing probation and parole leads to the conclusion that these programs and PTI, while similar, are far from identical. A discussion of the Lebbing and Devatt decisions would be in order.

In State v. Lebbing the divertee had been arrested during the course of his intervention program, and had neglected to inform PTI of the arrest for five months. At the time of this disclosure Lebbing was in his second period of supervision, and had entered a residential alcoholic treatment center as had been recommended by PTI. When the prosecutor moved for termination, the divertee requested an evidentiary hearing so that he could challenge the termination report which concluded that he was not amenable to the concepts of PTI and short-term rehabilitation.

The court proposed that the liberty interest at stake was similar in PTI, probation and parole revocation proceedings. Following the lead of the United States Supreme Court in Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) (procedural due process applied to parole revocations), and Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (due process applied to probation revocation), the court in Lebbing extended procedural due process protection to PTI terminations. Thus, a hearing must be held at a meaningful time and in a meaningful manner. 158 N.J. Super. at 216. A

meaningful manner entails (a) written notice of the claimed violations of the conditions of PTI; (b) disclosure to defendant of the evidence relied upon; (c) the opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and examine adverse witnesses, and ...

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