The four defendants in this matter have been indicted for various offenses relating to the disposition of hazardous waste and for conspiracy. Second degree crimes are involved. The PTI Director and the Attorney General, in accordance with their interpretation of Guideline 3(i) to R. 3:28 and past practice, therefore refused to accept PTI applications offered by all of the defendants. That Guideline provides:
Assessment of the Nature of the Offense: Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L. 1970, c. 226 (N.J.S.A. 24:21-1 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the program director, and through him to the prosecutor, any facts or materials demonstrating his amenability to the rehabilitative process, showing compelling reasons justifying his admission and establishing that a decision against enrollment would be arbitrary and unreasonable.*fn1
This language invites the filing of applications, not the opposite. Unless an application has been filed there can be no opportunity for an "applicant" to advance "compelling reasons" justifying admission to the program. These conclusions resulted in an order of this court requiring the acceptance of applications and the consideration of any "compelling reasons" advanced by the defendants.
Applications were then filed by all defendants and all were rejected for the same reasons, namely:
In your case, the Prosecutor did refuse to join affirmatively in the filing of your application and I do not feel that you have given compelling reasons to justify your admission into the Program; therefore, your application must be rejected. In addition to the above, there are other reasons why your application must be rejected. The charges against you indicate that the crimes were a part of organized criminal activity and also part of a continuing criminal business or enterprise. Both of these categories of offenses are normally excluded from Pretrial Intervention enrollment. The need to protect society from such activities indicates that the need to prosecute far outweighs the benefits you would derive through diversion.
All rejections were appealed to this Court.
The Attorney General did not provide any reasons for his refusal to consent to admission until the defendants had appealed their denials. At that point, he merely adopted the reasons set forth by the Director while advancing independent arguments in support of his position. He contends that there is a rebuttable presumption against admission because the defendants are charged with second degree crimes, that great deference must be given to the Director's determination, which is not to be set aside absent the showing of a "patent and gross abuse of discretion," that the defendants were involved in a "continuing criminal enterprise," and that the seriousness of the crimes charged support the denial.
The record before this court consists of the following:
1. The Director's letter of denial.
2. A letter-brief from counsel arguing that the Director "abused his discretion" because he made only a "general statement" that the defendant was not entitled to admission based upon ...