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State v. Demarco

Decided: July 1, 1987.


On appeal from the Superior Court, Appellate Division.

For modification, affirmance and reversal -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal -- Justice Handler. The opinion of the Court was delivered by Pollock, J. Handler, J., dissenting.


This appeal raises the question whether it is permissible for a prosecutor to condition admission into the Pre-Trial Intervention Program (PTI) on the defendant's resignation from his employment as a police officer. The director of the program recommended the admission of defendant, a member of the Newark Police Department, into the program, but the program coordinator, an assistant county prosecutor, said he would consent only if defendant resigned from his position. The Law Division, however, ordered defendant's admission into the program. In an unreported decision, the Appellate Division reversed, and we granted defendant's motion for leave to appeal, 103 N.J. 468 (1986). We modify and affirm the judgment of the Appellate Division.


In summarizing the relevant facts, we draw upon the testimony before the Sussex County Grand Jury, which is part of the record before us. Around 1:30 a.m. on Sunday, June 17, 1984, defendant and his 27-year old son were watching television in their home on Paulinskill Lake, south of the intersection of Kill Drive and Ridge Road, Sussex County, when they heard noises that sounded like gunshots. Because mailboxes in the area had

recently been destroyed by vandals, defendant and his son went to investigate. They turned on a spotlight in the front of their home and observed a light-colored car leaving the scene. Taking his badge and placing his service revolver in his shoulder holster, defendant, accompanied by his son, entered his car and unsuccessfully tried to overtake the departing vehicle. While pursuing that vehicle, defendant observed damage to numerous mailboxes in the area. After losing sight of the departing vehicle, defendant came upon two cars parked on Ridge Road and observed an argument between the occupants of one car, Thomas J. Byrnes and Timothy P. Moore, two young men in their early twenties, and a third person, William Hulit, whom defendant recognized to be a neighbor. According to defendant, he identified himself as a police officer when he exited from his car, wearing his service revolver and carrying his nightstick in his right hand and his badge in his left hand.

Mr. Hulit explained his presence at the scene by stating that while walking his dog in his front yard, he had heard banging and observed people breaking mailboxes with a stick. He noticed a light colored car, with a license plate bearing the numerals "300." Hulit pursued that car in his own automobile, until it drove out of sight. On his return home, Hulit observed the Moore vehicle, a light-colored Volvo with the numerals "300" on its license plate, which he followed until it stopped on Ridge Road. Hulit accused Moore and Byrnes of destroying the mailboxes, which they denied.

Moore and Byrnes said they had spent the evening at a beer party, a fact that is consistent with defendant's observation that they smelled of beer. According to defendant, as he approached the two young men, he announced "I'm a police officer," whereupon Byrnes ran into the surrounding woods. Defendant testified further that Moore approached him with upraised arms and grabbed defendant's right arm. In self-defense, defendant struck Moore two or three times on the arms with his nightstick. As Moore fell, he grabbed defendant's nightstick, whereupon defendant kicked him in the chest.

The testimony of Moore and Byrnes differed from that of defendant. Moore testified that when defendant exited from his car, he ordered them against their car "or he'd fill us full of lead." According to Moore, defendant swung the nightstick at Byrnes, who ran away. Then, without warning, defendant turned and struck Moore on the head. Moore fell to the ground, and defendant hit him twice more with the nightstick, once on the head and once on the back. Both defendant and Byrnes called the State Police, who investigated at the scene. Moore was taken to the hospital, where several stitches were taken in his scalp, and where he was confined overnight.

Moore filed charges against defendant for assault, N.J.S.A. 2C:12-1, and defendant filed charges against Moore for assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and for resisting arrest, N.J.S.A. 2C:29-2. The Sussex County Grand Jury did not return an indictment against Moore, but indicted defendant for aggravated assault with a deadly weapon. N.J.S.A. 2C:12-1b(3).

In recommending defendant for admission to the PTI program, the director stated:

When interviewed, the defendant made a favorable impression and would appear to fit the various criteria enumerated in N.J.S.A. 2C:43-12(e) and the various guidelines. He has had one arrest, that charge having been dismissed. He has been steadily employed as a Lt. by the Newark Police Department for the past 26 years. Mr. DeMarco openly admitted his involvement in this offense and stated the actions he took were necessary for self-protection. N.J.S.A. 2C:43-12a states, in part, that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense when supervisory treatment would (b) provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions. This is clearly the situation in Mr. DeMarco's case where a conviction for the alleged offense could very well jeopardize his career of 26 years with the Newark Police Department.

In view of the above, it is recommended that Vincent DeMarco, Sr. be enrolled in the Sussex County Pretrial Intervention Program.

Initially, the prosecutor relied on two grounds to support his conclusion that defendant should be denied admission to PTI: the violent nature of the offense and defendant's continued attempt to justify striking Mr. Moore as an act of self-defense,

which the prosecutor contends demonstrates that defendant cannot be rehabilitated. Thereafter the prosecutor added a third ground, that the offense constitutes a breach of the public trust reposed in defendant as a police officer. The prosecutor stated he "would join in Mr. DeMarco's participation in the Pretrial Program only if he resigned his post as a Lieutenant in the City of Newark Police Department."

The Law Division disagreed and ruled that the "requirement that the defendant quit his job * * * under the circumstances of this particular case [was] not an appropriate consideration" and that the prosecutor was "wide of the mark in terms of PTI goals." Moved by considerations of "fundamental fairness and justice," the Law Division initially remanded the matter to the prosecutor and subsequently ordered defendant's enrollment into PTI. The Appellate Division reversed, finding that the prosecutor had not exhibited a patent and gross abuse of discretion.


From the inception of PTI, we have recognized that the decision to divert a defendant from criminal prosecution implicates both judicial and prosecutorial functions. State v. Leonardis, 71 N.J. 85 (1976) (Leonardis I). Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI. State v. Dalglish, 86 N.J. 503, 513-14 n. 1 (1981). As a general rule, a trial court may not order admission over a prosecutor's objection unless the defendant can establish clearly and convincingly that the objection constitutes a "patent and gross abuse of discretion." Id. at 506; State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II). Respect for the prosecutor's role may occasionally result in our recognition of a decision with which we disagree. Judicial review is "available to check only the most egregious examples of injustice and unfairness." Leonardis II, supra, 73 N.J. at 384. Our scrutiny is

limited to reviewing the reasons given by the prosecutor for his or her decision. State v. Dalglish, supra, 86 N.J. at 509. It is not sufficient to reverse that we find a decision to be harsh. For a court to reverse a prosecutor's decision, the 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 discretion." Leonardis II, supra, 73 N.J. at 382. Abuse of prosecutorial discretion results from a consideration of irrelevant or inappropriate factors, or from a clear error in judgment. State v. Bender, 80 N.J. 84, 93 (1979). The prosecutor's error must be one that will "clearly subvert the goals underlying Pretrial Intervention." Id. Whether the prosecutor has based his or her decision on an appropriate factor, however, is akin to a question of law, a matter on which an appellate court may supplant the prosecutor's decision. State v. Maddocks, 80 N.J. 98, 104-05 (1979). When a prosecutor fails to consider all relevant factors or considers inappropriate factors, a court may clarify the appropriate factors and remand the matter for further consideration. Id. at 105. If the prosecutor's abuse arises from a clear error of judgment, a court may order that a defendant be admitted into the program.

Included in the purposes of PTI are the deterrence of future criminal behavior through the receipt of early rehabilitative services and the provision of an alternative to prosecution for a qualified defendant. Another purpose is "[t]o assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems." R. 3:28, Guideline 1.

We have previously discussed the nature and history of PTI, Leonardis I, supra, 71 N.J. 85, and the conformity of the pre-trial intervention provisions of Rule 3:28 and the Penal Code, State v. Collins, 90 N.J. 449 (1982). Guideline 3, promulgated under Rule 3:28, mandates that "consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e)," which include "the nature of the offense," N.J.S.A. 2C:43-12(e)(1), and

more particularly whether the offense "is of an assaultive or violent nature * * *," N.J.S.A. 2C:43-12(e)(10). In addition, Guideline 3(i) makes clear that the nature of the offense may be relevant to determining eligibility for PTI. It provides in part:

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 * * * (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.

Obviously, the offense, if proven, is violent, and we shall not dwell further upon that point. Nor shall we try to resolve the controverted factual issue whether defendant's use of his nightstick was justified. Suffice it to state, in light of Moore's testimony before the Grand Jury and the subsequent indictment of defendant for aggravated assault, that the prosecutor could conclude for PTI purposes that the defendant did not act in self-defense. The final consideration, whether the offense constitutes a breach of public trust and, if so, whether the prosecutor may condition defendant's entry into PTI on his resignation as a police officer, requires more extensive discussion.

We have held that a pharmacist who stole cocaine from his employer for his personal use and not for profit had not committed a breach of the public trust. State v. Bender, supra, 80 N.J. 84. More recently, we have held that a defendant's status as a public school teacher was relevant to, but not necessarily dispositive of, his request for a conditional discharge of his plea to the possession of less than twenty-five grams of marijuana. State v. Humphreys, 89 N.J. 4 (1982). In another case, we held that a police officer who pleaded guilty to the possession of heroin did not pose "a danger to the community." State v. Alston, 71 N.J. 1, 7 (1976). Humphreys and Alston involved applications by first-time drug offenders for a "conditional discharge," which, like admission ...

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