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State v. T.A.B.

Decided: August 29, 1988.


Haines, A.j.s.c.


[228 NJSuper Page 573] T.A.B. is charged with aggravated assault, the conceded product of a sudden emotional disorder. He has applied for admission to the Burlington County pretrial intervention program (PTI). While the PTI director approved his application, the Camden County Prosecutor (participating because the matter has been transferred to Burlington County) did not. He was therefore refused admission. His refusal was appealed here. This court, for reasons set forth in an oral opinion briefly supplemented here, has overruled the prosecutor's objections and ordered T.A.B.'s admission to the program. Questions concerning the length of T.A.B.'s program and the retroactivity of a June 28, 1988 amendment to the PTI statute were reserved and are resolved by this opinion.

The prosecutor's objection was premised solely upon her insistence that T.A.B. be subjected to some kind of supervision for at least two years to make sure that his emotional outburst will not occur again or, if it does, that he will have professional assistance in dealing with it. T.A.B. objects to a two-year program, arguing that a six-month term is sufficient. Both court rule and statute, as they existed at the time T.A.B.'s offense was committed, limited PTI programs to one year. R. 3:28; N.J.S.A. 2C:43-13c. The prosecutor's demand for a two-year program of supervision is obtainable only through the criminal justice system unless the amendment to the PTI statute applies. If it does, the prosecutor is amenable to the PTI admission, provided a two-year program is imposed.

The June 28, 1988 amendment to the PTI statute, N.J.S.A. 2C:43-13c, extended PTI programs to a maximum period of three years. It provided:

Supervisory treatment may be for such period, as determined by the designated judge or the assignment judge, not to exceed three years, provided, however, that the period of supervisory treatment may be shortened or terminated as the program director may determine with the consent of the prosecutor and the approval of the court.

The question is whether the amendment is applicable retroactively. This court holds that it is, insofar as the three-year provision is concerned.

Usually, statutes are given prospective application. State v. Hughes, 199 N.J. Super. 173, 179 (App.Div.1985). The opposite is true if the statute is ameliorative, i.e., lessens the harshness of prior legislation. Kendall v. Snedeker, 219 N.J. Super. 283 (App.Div.1987). It is difficult to determine whether permission to extend a PTI term from one year to three years is, or is not, ameliorative. When it accommodates a PTI admission not otherwise available to one accused of criminal activity, it may be called ameliorative. However, when, as here, a prospective PTI admittee is opposed to a lengthy PTI term, it may be the opposite. The history of the June 28, 1988 amendment provides no clue to legislative intent. Normally, the prospective rule

would apply. That rule, however, has an exception: the "time of decision rule."

Appellate courts apply the law in effect at the time of decision. State v. Lawn King, Inc., 169 N.J. Super. 346, 353 (App.Div.1979). The rule has been applied in a PTI setting: State v. Kirchdoerffer, 156 N.J. Super. 172 (App.Div.1978), held that PTI review standards established by a New Jersey Supreme Court decision after Kirchdoerffer's offense occurred were nevertheless applicable to him. The same rule applies here. T.A.B. has appealed his PTI rejection to this court which is bound by the "time of decision" rule.

It should be noted that the court rule, R. 3:28, has not been amended and continues to limit PTI programs to one year, thus contradicting the statute. The potential for such conflicts was anticipated by our Supreme Court. It said, in State v. Leonardis, 73 N.J. 360 (1977):

Thus, we conclude that an absolute prohibition against rules which merely affect substantive rights or liabilities, however slight such effect may be, would seriously cripple the authority and concomitant responsibility which have been given to the Court by the Constitution. However, this should not be taken as a departure from the long standing rule that the Court is not to invade the Legislature's domain by "mak[ing] substantive law wholesale through the exercise of the rule-making power." Nor is this to be taken as an indication of the Court's authority to upset existing legislative enactments which are substantive in scope. While we have interpreted Art. VI, par. 3 to give the Court exclusive and plenary power over rules which are procedural in nature, nothing which we have said today should foreclose the Legislature from enacting measures affecting the substantive aspects of PTI. It is not our desire to inhibit legislative action in this sphere; on the contrary, we welcome it. [at 374-375; citations omitted]

Further recognition of the legislative role in PTI matters appears in State v. Collins, 90 N.J. 449 (1982), in which the Court said: "The Legislature's treatment of pretrial intervention in N.J.S.A. 2C:43-12 et seq. is all-encompassing, seeming to respond to this Court's invitation to occupy the field," citing Leonardis, 73 N.J. at 452. The import of these decisions and the obvious ...

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