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State v. Nwobu

Decided: February 8, 1995.


On appeal from the Superior Court, Appellate Division.

O'hern, J. Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi, and Stein join in this opinion. Justice Coleman did not participate.


The opinion of the court was delivered by O'HERN, J.

The central issue in these two appeals is whether the prosecutors arbitrarily rejected defendants' admission into Pretrial Intervention programs (PTI). PTI is an alternative procedure to the traditional process of prosecuting criminal defendants. It is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior. PTI is intended to augment the criminal Justice system when prosecution would be ineffective, counterproductive, or unnecessary. A second issue, in one of the cases, is whether the prosecution of the defendant after completion of PTI would violate his double-jeopardy rights.


Daniel Nwobu is in his early thirties. In 1991 a Bergen County Grand Jury charged him with second-degree theft by deception. The indictment alleged that over approximately a six-week period, he stole and forged checks totalling more than $75,000 from his employer, Simon & Schuster, a major publishing company. After arraignment, he applied for entry into the Bergen County PTI.

The PTI director denied the application. He set forth the following reasons for that denial: (1) Defendant failed to offer any compelling reasons to overcome the statutory presumption against pre-trial intervention for second-degree offenders; (2) the prosecutor did not support defendant's PTI application; (3) defendant's conduct was part of a continuing pattern of anti-social behavior; and (4) admission into PTI would fail to serve as a sufficient sanction or deterrent.

Defendant appealed to the Law Division, pursuant to PTI Guideline 8 of Rule 3:28, for an order requiring reconsideration of the application or mandating defendant's admission into PTI. The Bergen County Prosecutor wrote a brief letter to defendant's attorney informing him that he opposed defendant's entry into PTI. The letter stated:

The Bergen County Prosecutor's Office has carefully considered the [PTI] application of [Nwobu]. We regret to inform you that this office opposes your client's entry into the program for the same reasons as previously stated by the [PTI] Director, Howard Williams.

Pending further information, the trial court ordered the prosecutor's office to "reevaluate and reconsider" defendant's PTI application and submit a written report to the court. The Prosecutor's office simply replied that the State's position remained unchanged. On April 30, 1993, the trial court ordered that defendant be admitted into PTI. However, because the court knew that the State would appeal, it stayed its ruling pending completion of a written opinion. In its written decision on August 5, 1993, the court found that the prosecutor's denial of defendant's application for PTI was a patent and gross abuse of discretion because the prosecutor failed to provide a particularized statement of reasons regarding the rejection of defendant from PTI. The trial court held that it was inappropriate for the Prosecutor's office to justify its decision by simply referring to the reasons offered by the PTI director. It stayed further prosecution.

On August 18, 1993, the State moved for leave to appeal from the trial court's order. However, at that time, the State did not seek a stay of defendant's participation in PTI. The Appellate Division granted the State's motion on September 22, 1993. Not until December 20, 1993, did the State request that the trial court stay defendant's participation in PTI pending the appeal. The trial court denied that request. After he successfully completed his six-month PTI term, defendant sought to dismiss the State's appeal as moot, fundamentally unfair, and in violation of his double-jeopardy rights.

The Appellate Division refused to dismiss the appeal. On the merits of the appeal, it held that the prosecutor's reliance on the PTI director's reasons to deny defendant's admittance into PTI was proper as long as the reasons given by the PTI director were valid. Finding the prosecutor's reasons valid, it reversed the trial court's judgment and remanded the case for further criminal proceedings. We granted defendant's motion for leave to appeal the Appellate Division's decision.


On June 26, 1990, defendants, James Callender, Bryan Harris, and James Overby, young men in their twenties with no prior criminal histories, were at a park in East Orange drinking beer and waiting to play basketball. Also at the park were Brooklyn Smith, Jr., an off-duty New Jersey State Trooper, and his three-year-old son, Brooklyn Smith, III. While defendants were waiting for a game, one of them threw a "blockbuster," a firecracker with the power of one-quarter stick of dynamite. The firecracker was aimed at the basketball court but struck a tree limb that altered its course, causing it to explode within ten feet of Brooklyn, III. The boy was not physically harmed, but he was frightened and cried hysterically after the blockbuster detonated. There is conflicting evidence about which of the three men threw the explosive.

Following the explosion a crowd of bystanders attacked the defendants. Defendant Overby suffered a severe eye injury in the brawl. Eventually his right eye had to be removed. Police arrived at the scene and apprehended the defendants. The police discovered fireworks in the car that Overby occupied when apprehended.

An Essex County Grand Jury has charged defendants with second-degree possession of a destructive device for an unlawful purpose, contrary to N.J.S.A. 2C:39-4c; third-degree arson, contrary to N.J.S.A. 2C:17-1; and third-degree possession of a prohibited destructive device, contrary to N.J.S.A. 2C:39-3a. Because of its explosive power the blockbuster meets the statutory definition of a "destructive device," that is, "any device, instrument or object designed to explode or produce uncontrolled combustion, including * * * any explosive * * *." N.J.S.A. 2C:39-1c(1). The State did not charge illegal possession of fireworks, a disorderly persons offense under N.J.S.A. 21:3-8.

In the pretrial phase, before defendants formally applied for PTI, the trial court requested that the Essex County Prosecutor's Office make an initial determination regarding the option of PTI for defendants. The prosecutor would not consent to defendants' admission into PTI. He offered the following reasons in a letter to the court on August 3, 1992:

(1) Pursuant to Guideline 3(i) of the Guidelines for Operation of Pretrial Intervention in New Jersey in R. 3:28, an application for PTI "should generally be rejected if the offense was deliberately committed with violence or threat of violence."

(2) Pursuant to the same guideline, "a person charged with a first or second degree crime should ordinarily not be considered for enrollment in PTI except on a joint application of the defendant and the Prosecutor."

(3) "Society's interest in prosecuting the defendants and deterring others far outweighs any interest the defendant[s] might have in obtaining PTI."

(4) "The defendants have not presented anything to [the prosecutor] which would indicate their backgrounds or characters are so exceptional as to warrant their entry into PTI despite the nature and degree of the offenses charged."

(5) Pursuant to Guideline 3(j), "the impact of a defendant's diversion on the prosecution of co-defendants should be considered. Given the joint nature of the defendants' participation in this case, diversion of any one defendant would have an adverse effect on the prosecution of the others."

Defendants appealed the prosecutor's rejection of their admission into PTI and supplied further information about their backgrounds to the prosecutor. At that time, defendant Callender was twenty-seven years old, had graduated from prep school, and had attended college for a short period of time. He had been consistently employed since leaving college and also volunteered his time for community activities. Callender has no criminal history. Harris was twenty-four years old, married, and honorably discharged after serving in the Persian Gulf War. He plans to attend college. Overby was in his late twenties, unmarried, and unemployed. He has two children that he is obligated to support financially. Like Cal lender, neither Harris nor Overby has a criminal history.

The trial court requested that the prosecutor reconsider his Disposition and evaluate defendants' respective backgrounds. The prosecutor responded to that request with separate letters, applicable to each defendant. The prosecutor again objected to defendants' admission into PTI. Each letter contained a one- to three-paragraph review of the background information provided by defendants. The prosecutor's reasons for opposing each defendant's entry into PTI were set forth in an identical, final paragraph in each response. That paragraph stated:

This information regarding the defendant's background was not provided to me when I originally considered his request for entry into P.T.I. in early August. I have reconsidered the defendant's request in light of this information and the considerations set forth in my letter of August 3, 1992. * * * While there are certainly positive aspects to the defendant's background, they do not, in my view, outweigh the need for prosecution.

On November 30, 1992, the trial court ordered that defendants be admitted into PTI, but stayed the order until December 15, 1992, to allow the State time to appeal. The court reasoned that the prosecutor abused his discretion by rejecting defendants' admission into PTI because he did not consider all the relevant factors and did not evaluate separately each defendant's amenability to the rehabilitative process. The Appellate Division affirmed the Law Division decision. It agreed with the trial court that an abuse of prosecutorial discretion had occurred.

The State immediately applied for a stay of the Appellate Division's decision pending leave to appeal to this Court. The Appellate Division granted the motion for a stay, and we ...

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