On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Michels, Baime and Wallace. The opinion of the court was delivered by Michels, P.J.A.D.
We granted the State leave to appeal from an order of the Law Division that reversed the determination of the Middlesex County Prosecutor to withhold consent to the admission of defendant Glen Patrick Kraft into the Middlesex County Pretrial Intervention (PTI) program.
Briefly, defendant was indicted by a Middlesex County Grand Jury and charged with (1) burglary, a crime of the third degree, in violation of N.J.S.A. 2C:18-2 and (2) theft by unlawful taking, a crime of the fourth degree, in violation of N.J.S.A. 2C:20-3. This indictment also charged co-defendant Jeffrey Hildebrandt with the same two offenses. Thereafter, defendant pleaded not guilty to the offenses charged in the indictment and, on the same date,
applied for admission into the Middlesex County PTI program. His application was approved by the Program Director.
However, the Middlesex County Prosecutor's Office refused to consent to defendant's admission into the PTI program. The rejection was grounded upon the nature of the offense involved. Specifically, the Prosecutor indicated that the burglary of a dwelling is "a most serious offense," and one which is "worthy of vigorous prosecution." Thus, the Prosecutor concluded that the public interest would best be served by prosecuting this type of offense rather than diverting defendant into PTI. Defendant appealed to the Law Division, where the trial court held that the Prosecutor's rejection of defendant's application had been improper, and ordered that defendant be admitted into the PTI program. We granted the State leave to appeal from this order.
The State contends that the trial court erred by compelling the admission of defendant into the PTI program over the Prosecutor's objection. It maintains that the trial court failed to afford the Prosecutor's decision not to consent to defendant's admission into PTI the deference that it was due under the governing law. We agree and reverse.
The review of a prosecutor's decision regarding whether or not a particular defendant should be admitted into PTI involves sensitive issues. While our Supreme Court has upheld judicial review in this area as being consistent with applicable principles under the separation of powers doctrine, it has also plainly instructed that "the scope of such review should be limited." State v. Leonardis, 73 N.J. 360, 381, 375 A.2d 607 (1977) (Leonardis II). In addressing the particular concerns which are implicated in this context, the Court explained that:
[J]udicial review of a prosecutor's decision whether or not to suspend criminal charges infringes on both the Legislature's power to define crimes and the Executive's responsibility to enforce the laws and therefore must be performed with sensitivity. Since the Legislature has established a PTI program with judicial review, [ N.J.S.A. 2C:43-12 to 2C:43-22,] the problem of judicial interference with legislative authority has been eliminated. Nevertheless, [the] concern about unwarranted interference with prosecutorial prerogative persists . . . . [ State v. Dalglish, 86 N.J. 503, 513, 432 A.2d 74 (1981)].
Thus, it has clearly been acknowledged that this decision lies, in the first instance, with the prosecutor, and once he has determined that he will not consent to the diversion of a particular defendant, his decision is to be afforded great deference. Leonardis II, supra, 73 N.J. at 381, 375 A.2d 607. See also State v. DeMarco, 107 N.J. 562, 566, 527 A.2d 417 (1987); State v. Dalglish, supra, 86 N.J. at 509, 432 A.2d 74; State v. Bender, 80 N.J. 84, 89, 402 A.2d 217 (1979); State v. Hoffman, 224 N.J. Super. 149, 155, 539 A.2d 1254 (App.Div.1988); State v. Litton, 155 N.J. Super. 207, 212, 382 A.2d 664 (App.Div.1977). In fact, the level of deference which is required is so high that it has been categorized as "enhanced deference" or "extra deference." See State v. DeMarco, supra, 107 N.J. at 566, 527 A.2d 417; State v. Dalglish, supra, 86 N.J. at 513-14 n. 1, 432 A.2d 74; State v. Hoffman, supra, 224 N.J. Super. at 155, 539 A.2d 1254. Beyond this, it has been expressly noted that the scope of any review in this area is to be "severely limited." State v. Bender, supra, 80 N.J. at 89, 402 A.2d 217. See also State v. Litton, supra, 155 N.J. Super. at 212, 382 A.2d 664. In fact, our Supreme Court has announced that there is an expectation that a prosecutor's decision in this regard "rarely will be overturned." Leonardis II, supra, 73 N.J. at 380 n. 10, 375 A.2d 607; State v. Litton, supra, 155 N.J. Super. at 212, 382 A.2d 664. Thus, judicial review, in actuality, exists "to check only the most egregious examples of inJustice and unfairness." State v. DeMarco, supra, 107 N.J. at 566, 527 A.2d 417; Leonardis II, supra, 73 N.J. at 384, 375 A.2d 607; State v. Litton, supra, 155 N.J. Super. at 212, 382 A.2d 664.
The reason for this elevated standard of review stems from "[t]he need to preserve prosecutorial discretion in deciding whether to divert a particular defendant from the ordinary criminal process . . . ." State v. Dalglish, supra, 86 N.J. at 509, 432 A.2d 74. Prosecutorial discretion in this context is critical for two reasons. First, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary ...