The defendant, James Poinsett, and three others, have been indicted for various violations of the Controlled Dangerous Substances (CDS) Act. The indictment against Poinsett contains seven counts, which include charges of possession of CDS with intent to distribute. Substantial quantities of cocaine, methamphetamine and marijuana were seized at the time of his arrest and are claimed to be under his control.
Poinsett applied for admission to Burlington County's Pretrial Intervention Program (PTI). At the same time, he acknowledged his drug and alcohol addiction, entering into programs designed to overcome those problems. He also secured reemployment at an old job. He claimed a strong desire for rehabilitation. The PTI Director consented to his admission. The Prosecutor did not, basing his refusal upon prosecutorial policies relating to drug offenses, the needs of society, the nature of the offense and difficulties in prosecuting co-defendants. Consequently, Poinsett's application was denied. He appeals to this court from that denial as permitted by N.J.S.A. 2C:43-12 and R. 3:28.
The defendant has presented only the Prosecutor's refusal letter as the appellate record. Consideration of the appeal is therefore limited to an analysis of the Prosecutor's reasons and the facts recited above. These facts were exposed during argument without objection. They are not significant for the purposes of this opinion.
The Prosecutor's refusal cannot be reversed unless it is shown to have been a "patent and gross" abuse of discretion. The rule is set forth in State v. Bender, 80 N.J. 84 (1979):
Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon the consideration of all relevant factors, (b) was based upon the consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. [Citations omitted] In order for such an abuse of discretion to rise to the level of "patent and gross," it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention. [at 93.]
A. Consideration of the Individual
Defendant argues that the Prosecutor improperly ignored his individual characteristics, basing his rejection upon generalized concepts. Consideration of the individual characteristics is a basic PTI requirement. In State v. Leonardis, 71 N.J. 85 (1976) (Leonardis I), the Supreme Court said:
Because rehabilitation is dependent on an individual's propensity for correction, conditioning his admission solely on the nature of his crime may be both arbitrary and illogical. Greater emphasis should be placed on the offender than on the offense. [at 102.]
It is obvious that the prosecutor, in writing the letters of December 1, 1977, failed to deal with defendants on a prompt and individual basis. The fact that the defendants were involved in a single night of wrongful conduct does not justify grouping them as he did. We are dealing with young persons whose futures hang in the balance, and whose applications for diversion mandate prompt individualized study and consideration. [at 116.]
The emphasis . . . is on the individual offender and his potential for rehabilitation, rather than the offense or the offender's status. Neither these opinions nor the Guidelines authorize a priori exclusion of an offender from the program without a judgmental consideration of the individual and the offense. [at 565.]
In the present case, the Prosecutor addressed the individual defendant only in his recital of the facts that relate to the criminal charge. He did not mention the defendant's prospects for rehabilitation, his attitudes, his past history, or his present efforts to reconstruct his ...