The opinion of the court was delivered by: Locascio
At 5:43 p.m. on September 28, 1994, while on a narcotics surveillance approximately 900 feet from the Garfield Primary School, Long Branch Police Lieutenant Albert Roma observed defendant approach a known drug dealer, Jose Morales, and hand him some money, whereupon Morales then handed defendant a small object. When defendant was arrested a short distance away, a search revealed .44 grams of heroin. Defendant was indicted for Possession of a Controlled Dangerous Substance, namely, heroin, contrary to N.J.S.A. 2C:35-10a(1) and Possession of a Controlled Dangerous Substance within 1,000 Feet of a School Zone, contrary to N.J.S.A. 2C:35-10a(1).
Defendant is a 43 year old gainfully employed father of one, who has completed two years of college and supports his mother and 17 year old son. Defendant's prior record includes a 1969 juvenile adjudication for burglary for which he received a six month continuance and paid $7.50 in restitution, and a 1979 disorderly conduct conviction resulting in a $25 fine, as a result of a commotion in a movie theater during which defendant allegedly helped a friend. Following the within charge, defendant's application for Pretrial Intervention (PTI) was accepted by the director, but rejected by the prosecutor's office because, according to an April 27, 1995 memo:
The Monmouth County Prosecutor's Office has followed the legislative mandate in school zone cases and, where possible, has sought a greater degree of punishment for those charged with possessing or distributing CDS within 1,000 feet of a school. By meting out stern punishment to drug dealers and buyers operating in the Garfield Primary School school zone, the Monmouth County Prosecutor's Office hopes to reduce, and possibly eliminate the incidence of illicit CDS activity in that area and the related crime that it produces. (citations omitted).
After considering all of the information contained in the Pre-Trial Intervention report and the police reports prepared in connection with this matter, I recommend that we reject the application of Wallace Baynes. I submit that there is a "public need" to prosecute him for his actions and a need to deter others who buy and sell drugs in the vicinity of the Garfield Primary School school zone. (citations omitted.)
On June 23, 1995, a hearing was held before this court for reconsideration of the prosecutor's decision. This court found that the prosecutor had not considered all the relevant factors and therefore, pursuant to State v. DeMarco, 107 N.J. 562, 567, 527 A.2d 417 (1987), remanded the matter to the prosecutor to reconsider defendant's application. In a June 28, 1995 memo, the prosecutor indicated that "[he] took into consideration all of the relevant information contained in the Pre-Trial [sic] Intervention report and police reports prepared in connection with Mr. Baynes' arrest," and continued to oppose defendant's diversion into PTI. Defendant now appeals the prosecutor's rejection of his PTI application.
PTI is an alternative procedure to the traditional process of prosecuting criminal defendants, allowing certain offenders to receive early rehabilitative services and avoid criminal prosecution. State v. Nwobu, 139 N.J. 236, 240, 652 A.2d 1209 (1995). It is intended to augment the criminal Justice system when prosecution would be ineffective, counterproductive, or unnecessary. Id. at 240-41.
PTI was established, with no enabling legislation, by R. 3:28 in 1970, as authority for the vocational service pretrial intervention program, operated by the Newark Defendants Employment Project. State v. Nwobu, supra, 139 N.J. at 240-41. By 1976 the Court had approved programs for twelve counties. Pressler, Current N.J. Court Rules, comment 1 on R. 3:28 (1995). Subsequently, the Legislature enacted a statewide program of pretrial intervention as part of the 1979 Code of Criminal Justice, N.J.S.A. 2c:43-12 to -22, which generally mirrored the procedures and guidelines previously established under R. 3:28. Although pretrial diversion is, by its nature, part of the prosecutor's charging function, the statutes, procedures, and guidelines involve the judiciary in its administration. State v. Nwobu, supra, 139 N.J. at 240-41. As a practical matter, criminal case management today is a three part effort involving prosecutors, defenders and the courts. Id. Judicial powers obviously "include the power to review the operation of court initiated procedures and to review the legal determinations made pursuant to these procedures." State v. Leonardis, 71 N.J. 85, 109, 363 A.2d 321 (1976).
Under current practice, admission into PTI is based upon a recommendation by the criminal division manager, with the consent of the prosecutor. R. 3:28(b). The standards for review of PTI decisions are firmly established by the court:
[The PTI] 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. In fact, the level of deference which is required is so high that it has been categorized as "enhanced deference" or "extra deference." . . . The scope of any review in this area is to be "severely limited." * * * Thus, judicial review, in actuality, exists "to check only the most egregious examples of inJustice and unfairness."
The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI. Specifically, "a defendant must 'clearly and convincingly establish that the prosecutor's refusal to sanction admission into [a PTI] program was based on a patent and gross abuse of his discretion ' ...