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State v. Burbano

September 27, 1996


Barisonek, P.j.c.p.

The opinion of the court was delivered by: Barisonek



The defendant, Saulo Burbano, was charged with N.J.S.A. 2C:39-5B, Unlawful Possession of a Weapon, a third degree offense, and N.J.S.A. 2C:29-2(a), Resisting Arrest, a fourth degree offense. Defendant applied for admission into Pretrial Intervention (PTI) and was rejected for admission.

Defendant was a patron at a local tavern and became involved in an altercation. Defendant alleged that as he left the tavern to retrieve some personalty from his automobile, he was accosted by several men who attempted to rob him. He further alleged that one individual produced a handgun and threatened him, that he disarmed this individual and fired the gun in the air to scare off the men. Defendant then alleged that when the police arrived, he walked from the area, removed the clip from the weapon, then replaced the clip and placed a round into the chamber. He then threw the weapon into a bush and kept walking until he was stopped by the police.

The police alleged that a call was received as to an altercation in the tavern, and that a gunshot had been fired in the tavern. When they arrived at the scene, the crowd pointed to defendant, who was walking away as the person involved in the altercation, and who discharged the weapon. The police yelled for defendant to stop, but he continued to quickly walk away. The police also alleged that they saw defendant carrying a silver handgun. When they pursued him with weapons drawn, they saw defendant throw the weapon into the bushes. When the police tried to detain defendant, a struggle ensued and defendant was arrested. The police subsequently retrieved the handgun from the bushes and found a live round in the chamber.

Initially, the PTI director and the prosecutor rejected defendant's petition for PTI under Rule 3:28, Guideline 3(i). They determined that the nature of the offense was of such a serious nature that it far outweighed any positive rehabilitation factors and that the action of defendant amounted to an act of violence and/or threat of violence.

The prosecutor, at defendant's request, agreed to reconsider his position of rejection due to proof problems, since the police had failed to secure the names of witnesses at the tavern during their investigation of the incident. The prosecutor felt that this failure would adversely affect the State's ability to prove its case. The prosecutor requested that the program director re-evaluate her position, which she agreed to do.

The program director, after reconsideration, declined to accept defendant for admission, citing the same reasons for rejection. The prosecutor, however, reversed his position and recommended defendant for admission. Defendant appeals to this Court based on the program director's recommendation to deny admission.

The issues at hand are who bears the ultimate responsibility of deciding whether a defendant shall be admitted into PTI when the program director and the prosecutor disagree on a defendant's admission, and whether the court must admit defendant if the prosecutor consents to admission. R. 3:28 clearly grants both the director and the prosecutor the power to deny an applicant admission into PTI.

The majority of case law to date under the separation of powers doctrine has dealt with judicial review of a prosecutor's refusal to consent to PTI admission, as opposed to a review of the prosecutor's consent to admission. The New Jersey Supreme Court has reasoned that judicial review is necessary but, due to separation of powers concerns, it should be limited in scope. See State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977) (Leonardis II). There is no question under existing case law that a defendant must clearly and convincingly establish that a prosecutor's refusal to consent to admission was based upon a patent and gross abuse of discretion before a court may override the prosecutor's decision and suspend criminal proceedings. Id. at 382.

The Supreme Court also held that a defendant can demonstrate a patent and gross abuse of discretion when the prosecutor's refusal was not premised upon a consideration of all relevant factors, was based on a consideration of irrelevant or inappropriate factors or amounted to a clear error in judgment. A defendant must further show that the prosecutor's error will clearly subvert the goals underlying PTI. State v. Bender, 80 N.J. 84, 402 A.2d 217 (1979). The Bender court further restricted judicial review of the prosecutor's decision to the reasons given by the prosecutor for his or her refusal. Id. at 94.

State v. Dalglish, 86 N.J. 503, 432 A.2d 74 (1981), the Supreme Court reviewed the standard set forth in Leonardis II, in light of the codification of the PTI program contained in N.J.S.A. 2C:43-12. The Court upheld the high standard governing review of a prosecutor's veto. The Court in Dalglish reasoned that the concern over separation of powers motivated the Leonardis II decision and that concern survives the Legislature's enactment of the statutory PTI program. The Supreme Court opined that:

As we stated in Leonardis II, judicial 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.... Nevertheless, our concern about unwarranted interference with prosecutorial prerogative persists as a ...

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