Thomas Charles Wood and Tyrone Johnson were indicted for theft and burglary offenses. Both applied for admission to the Burlington County pretrial intervention (PTI) program. Both were rejected because, according to the PTI Director, they had signed false affidavits, the submission of which he routinely requires in connection with PTI applications. No other reason for rejection was stated. Both applicants have appealed the rejection to this court.
The PTI affidavit signed by Wood is set forth in full as follows:
I, Thomas Charles Wood of full age, being duly sworn according to law, upon my oath do state that I have never been arrested or charged with any violation of law either as an adult or juvenile (excluding minor traffic offenses) other than the offenses which I have listed below. I make this statement with the
full understanding that should this be untrue, I may be charged with False Swearing under 2C:28-2 a crime of the fourth degree punishable by a fine of up to $7,500 or imprisonment for up to 18 months or both. I also understand that should this statement be untrue it will result in automatic denial of my Pretrial Intervention application or automatic termination from the Pretrial Intervention Program if I am already enrolled.
The Director's response was contained in the following letter (quoted completely):
On January 3, 1985, you appeared in this office and made application for Pretrial Intervention. At that time, you were handed various documents, including a Prior Record Affidavit.
You indicated on your prior record history that you have had no other arrests or charges brought against you, either as an adult or juvenile. You then signed that Affidavit and had it notarized.
Our records reflect that you were arrested in October of 1984 for issuing five bad checks, and that your court date is January 31, 1985.
It is stated on the Record Affidavit that, should you make a false statement, that you are automatically rejected by this Program. Furthermore, I am considering having the Prosecutor review this matter, to see if you should be criminally charged with False Swearing under 2C:28-2.
Taking the above into consideration, I am closing our interest in this matter.
An identical affidavit was signed by Johnson. His rejection letter was similar to Wood's, except that it referred to a conviction for shoplifting.
Wood supported his appeal with an affidavit, which stated that, prior to October 1984, he had been arrested for a motor vehicle offense and sentenced to jail for 17 days but understood that "I had to tell about offenses other than motor vehicles for which I had been arrested, that is, given bail or held in custody." As to the bad checks, he said that "[t]he court hearing on the bad check offenses occurred after I made my affidavit and resulted in my paying restitution of $80. . . ." He also said that the complainant in the bad check case wished to dismiss the complaint.
Johnson also filed an affidavit in support of his appeal. He said that he understood, when he signed his application affidavit, that he had "never been arrested and therefore had no prior record." He advised that he had been stopped by a security guard in a department store and shortly thereafter was sent to Hawaii as part of his military service. His mother filed a companion affidavit in which she said that while her son was in Hawaii, she received a summons requiring him to be in municipal court, that she called the court and was advised to pay his fine, which she did.
Wood and Johnson argue that the use of the affidavits they were required to sign as part of their applications to the PTI program was improper and that the rejection of their applications on the basis of those affidavits was therefore equally so.
Normally, the record in a PTI appeal consists only of copies of documents contained in the Director's files. State v. White, 145 N.J. Super. 257 (Law Div.1976). In the present case, however, those documents would not reflect all of the facts necessary to address the applicant's contentions. They did not know how their affidavits were to be used until after their applications had been rejected. Under these circumstances, the filing of supplemental affidavits is permissible. State v. Masucci, 156 N.J. Super. 272, 278 (Law ...