On certification to the Superior Court, Appellate Division, whose opinion is reported at 287 N.J. Super. 336 (1996).
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Stein and Coleman join in Justice GARIBALDI's opinion.
The opinion of the court was delivered by: Garibaldi
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Wallace Baynes (A-63-96)
Argued January 7, 1997 -- Decided April 1, 1997
GARIBALDI, J., writing for a unanimous Court.
The issue raised on this appeal is whether the trial court correctly reversed the Monmouth County prosecutor's rejection of Wallace Baynes's admission in a Pretrial Intervention (PTI) Program. Specifically, the question before the Court is whether the prosecutor's decision, based on his stated policy of denying admission into PTI to any defendant charged with possession of a controlled dangerous substance within 1,000 feet of a school zone, constitutes a "patent and gross abuse of discretion."
The facts are undisputed. On September 28, 1994, Baynes purchased .44 grams of heroin from Jose Morales in a location that was approximately 900 feet from an elementary school. Baynes was arrested and subsequently indicted by a grand jury for possession of a controlled dangerous substance (CDS), namely heroin, and possession of CDS within 1,000 feet of a school zone. Drug possession is a third-degree crime.
In his defense, Baynes claimed that he purchased the heroin because he was having difficulty dealing with the serious illness of his mother, who has since died. At the time of his application for admission into the Monmouth County PTI Program, Baynes was forty-three years old, was gainfully employed, and resided with and supported his elderly mother and seventeen-year-old son. Baynes had been employed by the same employer for the previous nine years. Baynes did have two prior incidents on his record. In 1969, as a juvenile, he was charged with burglary. In 1979, Baynes was convicted of disorderly conduct, as a result of a commotion in a movie theater.
The Director of the PTI program accepted Baynes's application for admission and the head of the narcotics team that had arrested Baynes had no objection to diversion into PTI. The prosecutor rejected Baynes's PTI application because of the acknowledged policy to deny PTI admission to defendants charged with "school zone offenses," including those involving possession of CDS for personal use.
On June 23, 1995, on a hearing for reconsideration, the trial court reversed the prosecutor's decision, finding that the prosecutor failed to consider all the relevant factors. The matter was referred back to the prosecutor for reconsideration. The prosecutor again opposed Baynes's diversion into PTI and, after a second hearing appealing that decision, the trial court ordered Baynes's admission into the PTI program over the prosecutor's objection. The court concluded that the prosecutor's decision constituted a gross and patent abuse of discretion because it is so clearly unreasonable that it shocks the judicial conscience, subverts the goals of PTI, and constitutes a clear error of judgment in that it could not reasonably have been made on a fair weighing of all relevant factors.
The Appellate Division upheld the trial court's decision, concluding that the State's objection to Baynes's admission into PTI was an arbitrary exercise of prosecutorial authority. The Supreme Court granted the State's petition for certification.
Prosecutorial discretion in reviewing pre-trial intervention applications does not permit exclusion of PTI applicants solely because they are subject to the "school zone" sentencing enhancement. Possession of controlled dangerous substances for personal use within 1,000 feet of a school cannot in every instance be an "appropriate circumstance" to rely solely on the nature of the offense in rejecting a PTI application.
1. PTI 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. Admission into PTI is based on a recommendation by the criminal division manager, as director of the PTI program, with the consent of the prosecutor. The Court has provided criteria for making PTI decisions in its Guidelines for Operation of Pretrial Intervention (Guidelines). Guidelines 1, 2, 3 and 8 are particularly relevant here. Guideline 1 sets forth the purposes of PTI. Guideline 2 provides that any defendant accused of a crime is eligible for admission into PTI. Guideline 3, specifically Guideline 3(I), clarifies how "the nature of the offense" is to be used in assessing a defendant's PTI eligibility. The nature of the crime is only one factor to be considered; however, there is a presumption against acceptance into a PTI program for certain types of criminal activity. Guideline 8 requires a Judge, prosecutor or criminal division manager, making a PTI decision, to provide defendant with a statement of reasons justifying the decision and demonstrating the consideration of all relevant factors. (pp. 5-7)
2. A prosecutor's decision to reject admission into PTI is to be afforded "enhanced deference." Therefore, a prosecutor's decision will rarely be overturned on judicial review. Absent evidence to the contrary, a reviewing court must assume that all relevant factors were considered by the prosecutor. The court may order a defendant into PTI over the prosecutor's objection only if defendant can clearly and convincingly establish that the prosecutor's denial of PTI was based on a patent and gross abuse of discretion. (pp. 7-9)
3. In State v. Bender, the Court defined the patent and gross abuse of discretion standard. A prosecutor has abused his or her discretion if the prosecutor's decision (1) is not premised on a consideration of all relevant factors; (2) is based on a consideration of irrelevant or inappropriate factors; or (3) amounts to a clear error in judgment. In order for an abuse of discretion to be considered patent and gross, it must be shown that the prosecutorial error complained of will clearly subvert the goals underlying PTI. The prosecutor's rejection of Baynes's PTI application falls under categories (1) and (3) of Bender. (pp. 9-10)
4. The prosecutor's rejection was not based on all of the relevant factors since, by their nature, per se rules require prosecutors to disregard relevant factors in contravention of the Guidelines. When a defendant demonstrates that a prosecutor has relied on such a rule, the presumption that the prosecutor has considered all relevant factors is overcome. Under the case law of this jurisdiction, it is appropriate for prosecutors to base a rejection solely on the nature of the offense for which the Guidelines express a presumption against admission into PTI. However, no court has indicated that possession of CDS for personal use is an "appropriate circumstance" that alone can justify denying PTI. (pp. 10-15)
5. Under the third prong of Bender, a prosecutor will be found to have made a "clear error in judgment," when the decision to reject PTI was premised on appropriate factors and rationally explained but is contrary to the predominate view of others responsible for the administration of Justice. The 1987 Comprehensive Drug Reform Act fails to indicate the intent prescribed to it by the Monmouth County prosecutor. Moreover, in the Attorney General's Supplemental Directive for Prosecuting Cases Under the Comprehensive Drug Reform Act (the Directive), specifically section 6 (c), does not adopt the policy followed by the Monmouth County prosecutor. The Directive embodies a conscious policy choice by the AG to allow PTI candidates charged with simple possession in a school zone into PTI, but only if they satisfy the mandatory non-incarcerative aspects of the program. (pp. 15-18)
6. As a first-time offender charged with a non-violent, third-degree offense, Baynes is eligible for diversion into the PTI program. By abandoning his discretion in favor of a per se rule, the prosecutor made a decision unsupported by the legislative purposes behind both the PTI statute and the Comprehensive Drug Reform Act, and by the Guidelines and case law. The rejection of Baynes's PTI application was an abuse of discretion under two categories of the Bender test. Moreover, because the policy of the Monmouth County prosecutor subverts the goals underlying PTI, Baynes's rejection was a patent and gross abuse of discretion. Accordingly, the trial court correctly ordered admission into the PTI program. (pp. 18-20)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
The opinion of the Court was delivered by
The Court again addresses whether a trial court correctly reversed a prosecutor's rejection of a defendant's admission into a Pretrial Intervention (PTI) Program. In particular, we must determine whether the Monmouth County prosecutor's decision, based on his stated policy of denying admission into PTI to any defendant charged with possession of a controlled dangerous substance within 1,000 feet of a school zone, constitutes a "patent and gross abuse of discretion."
The facts of this case are undisputed. On September 28, 1994, at approximately 5:30 p.m., defendant, Wallace Baynes, purchased .44 grams of heroin from Jose Morales. The purchase was made outside of the Rainbow Liquor Store, 141 Broadway in Long Branch. At that time, the State was under surveillance by the Long Branch Police Department's narcotics team. The location of the purchase occurred approximately nine hundred feet from the Garfield Primary School.
Baynes was arrested and subsequently indicted by the Monmouth County Grand Jury for Possession of a Controlled Dangerous Substance (CDS), namely, heroin, contrary to N.J.S.A. 2C:35-10a(1) and Possession of CDS Within 1,000 Feet of a School Zone, contrary ...