The opinion of the court was delivered by: Garibaldi, J.
On certification to the Superior Court, Appellate Division, whose opinions are reported at 305 N.J. Super. 9 (1997) and 308 N.J. Super. 214 (1998).
In this appeal, the Court must determine if a prosecutor may refuse to admit a defendant to a Pretrial Intervention (PTI) Program solely because he is charged with possession of marijuana with intent to distribute within 1000 feet of school property. Under N.J.S.A. 2C:35-7, that crime is a third-degree offense carrying a mandatory term of imprisonment. Neither R. 3:28, Guidelines for the Operation of Pretrial Intervention in New Jersey, Pressler, Current N.J. Court Rules, comments on R. 3:28, (1999), or the Comprehensive Drug Reform Act ("CDRA") provide that N.J.S.A. 2C:35-7 offenders should be categorically ineligible for PTI. The policies underlying both the Guidelines and the CDRA, however, warrant treating N.J.S.A. 2C:35-7 as essentially equivalent to a second-degree offense for which PTI is presumptively unavailable. Because the prosecutor in this case considered the offender catagorically ineligible, we remand the application to the prosecutor for reconsideration. On remand, the offender must show "compelling reasons" to obtain admission to PTI. We also affirm the Appellate Division's decision to invalidate part of the Attorney General's Supplemental Directive for Prosecuting Cases Under the Comprehensive Drug Reform Act ("Attorney General's Directive"), issued January 6, 1997.
Early in the morning of April 4, 1996, defendant, Anthony Caliguiri parked in a lot in front of a Krauser's convenience store in South River, New Jersey. The lot is located within 1000 feet of a school. Police approached Caliguiri because his car stereo was playing too loudly. During the course of that encounter, police spotted marijuana on the front seat of Caliguiri's car. One officer searched the interior of the car and uncovered an additional quantity of the drug and a box of Ziploc bags. Meanwhile, another officer questioned Caliguiri, who guided the officers to another large Ziploc bag of marijuana concealed in the trunk.
Caliguiri was taken to police headquarters. When questioned, he admitted that the bag contained 1.5 ounces of marijuana that he had purchased for $150. Caliguiri also volunteered the name of the seller and the location of the sale. He told police that he had intended to use most of the marijuana himself, but that he would have given some to his close friends. Caliguiri denied intending to sell the drugs. A grand jury indicted Caliguiri on three counts, including third-degree possession with the intent to distribute within 1000 feet of school property, a violation of N.J.S.A. 2C:35-7.
Caliguiri applied for admission to the Middlesex County Pre-trial Intervention Program. He had an absolutely unblemished record, a job, and good family support. As the prosecutor acknowledged, Caliguiri satisfied all of the applicable criteria of the statute and Guidelines with the exception of the nature of the offense. Nevertheless, his application was rejected by the criminal division manager. In evaluating the application, the criminal division manager noted that "the seriousness of the offense is weighed heavily," and that Caliguiri's "offense [was] to [sic] serious too [sic] be considered for PTI. This offense carries a presumption of incarceration." The trial court reversed the decision, subject to review by the Middlesex County Prosecutor's Office.
The Prosecutor's Office denied Caliguiri PTI. In a letter dated October 10, 1996, the prosecutor wrote:
"This office was requested to review the application by making an analysis of his potential for rehabilitation, amenability to correction and the nature of the offense involved, based upon the information already present in our file and the report of the PTI program. . . . In the course of this analysis, all positive and favorable factors have been taken into account."
In rejecting Caliguiri's application, the prosecutor relied on a purported legislative belief that drug offenses near a school were "deserving of enhanced punishment" and "too serious for Pre-Trial Intervention."
The trial court ordered Caliguiri's admission to PTI over the prosecutor's objection. The prosecutor argued that all relevant factors had been considered, and that no mitigating factors outweighed the nature of the offense. When questioned by the court, the prosecutor did not identify any additional factors to support the decision to deny PTI. The court determined that the prosecutor denied Caliguiri's application solely because defendant committed a school zone offense. Because the Legislature designated N.J.S.A. 2C:35-7 a third-degree crime, the court held that the prosecutor could not base his rejection solely on the nature of the offense. Finding Caliguiri otherwise amenable to rehabilitation, the court concluded that the prosecutor's rejection represented a clear error in judgment.
The State appealed. The Appellate Division held PTI presumptively unavailable to defendants charged under N.J.S.A. 2C:35-7. 305 N.J. Super. 9 (1997) ("Caliguiri I"). However, because the prosecutor considered Caliguiri categorically ineligible for PTI, the court ordered a remand to allow Caliguiri the opportunity to rebut the presumption against admission.
We granted the State's petition for certification, 152 N.J. 186 (1997), and summarily remanded the case to the Appellate Division for reconsideration in light of Section 8 of the Attorney General's Directive. Section 8 provides, in relevant part, that county prosecutors "shall object" to any PTI applications by persons charged under N.J.S.A. 2C:35-7 "unless the prosecutor determines that the proofs available for trial would not sustain a conviction of that charge." Ibid. The Attorney General's Directive also required the prosecutor to appeal any adverse ruling on those applications.
On remand, the Appellate Division again ordered reconsideration of Caliguiri's application. 308 N.J. Super. 214 (1998) ("Caliguiri II"). Relying on this Court's statement in State v. Baynes, 148 N.J. 434, 449 (1997), the court again concluded that violating N.J.S.A. 2C:35-7 was analogous to committing a second-degree offense, for which PTI is presumptively unavailable. In response to the State's argument that there was no standard to determine whether Caliguiri's presumptive ineligibility had been rebutted, the court adopted the "serious inJustice" standard provided by N.J.S.A. 2C:44-1d.
We granted the petitions for certification of Caliguiri and the State. 155 N.J. 586 (1998).
Pretrial intervention is a discretionary program diverting criminal defendants from formal prosecution. N.J.S.A. 2C:43-12a(1); R. 3:28, Pressler, supra, Guidelines 1(a). PTI formalized the discretion often employed by prosecutors and law enforcement officials in selecting charges against a specific offender. Note, Criminal Justice-Pretrial Intervention Programs-An Innovative Reform of the Criminal Justice System, 28 Rutgers L. Rev. 1203, 1205-06 (1975).
In State v. Leonardis, 71 N.J. 85, 92-96 (1976) ("Leonardis I"), we conducted an extensive review of the history of PTI in New Jersey. In its current form, the PTI program is governed by the reciprocal terms of N.J.S.A. 2C:43-12 and R. 3:28. The Guidelines and the statute list the five goals of the PTI program: (1) providing offenders with early rehabilitation, if that service will deter future criminal conduct; (2) offering an alternative to offenders who would be harmed by traditional prosecution; (3) providing a less burdensome prosecution for offenders charged with "victimless" offenses; (4) assisting prosecutors in pursuing serious criminal matters by removing less serious cases from the criminal calender; and (5) deterring future criminal conduct by PTI participants. N.J.S.A. 2C:43-12a(1)-(5); Pressler, supra, Guidelines 1(a)-(e). This Court has also repeatedly emphasized the role of PTI in augmenting the criminal Justice system and enhancing the prosecutor's options. State v. Wallace, 146 N.J. 576, 581 (1996); State v. Nwobu, 139 N.J. 236, 240-41 (1995); State v. Dalglish, 86 N.J. 503, 509 (1981).
Any defendant charged with a crime is eligible for PTI. Pressler, supra, Guidelines 2. The Guidelines and the statute, however, provide the prosecutor and criminal division manager with specific criteria to apply in reviewing a PTI application. N.J.S.A. 2C:43-12e(1)-(17); Pressler, supra, Guidelines 3. Included in those criteria are the nature of the offense, the circumstances of the crime, the motivation and age of the defendant, and the needs and interests of the victim and society. N.J.S.A. 2C:43-12e(1)-(3),(7); Guidelines 3.
This Court has held that a prosecutor may, in appropriate circumstances, reject an applicant solely because of the nature of the offense. State v. Leonardis, 73 N.J. 360, 382 (1977)("Leonardis II"). The PTI Guidelines recognize this limitation. If a crime is
"(1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would depreciate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II ...