State v. Bender

• Citation: 402 A.2d 217,80 N.J. 84
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jerome BENDER, R. P., Defendant-Appellant.
• Decision Date: 24 May 1979
• Court: United States State Supreme Court (New Jersey)

Page 84

80 N.J. 84

402 A.2d 217

STATE of New Jersey, Plaintiff-Respondent, v. Jerome BENDER, R. P., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 23, 1979.

Decided May 24, 1979.

Marilyn Rhyne Herr, Flemington, for defendant-appellant (Trombadore & Trombadore, Manville, attorneys).

Allan J. Nodes, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

The opinion of the court was delivered by

PASHMAN, J.

In this and the companion cases of State v. Sutton, 80 N.J. 110, 402 A.2d 230 (1979), and State v. Maddocks, 80 N.J. 98, 402 A.2d 224 (1979), we are called upon to review prosecutorial decisions denying defendants admission into particular county pretrial intervention programs, See R. 3:28. Proper disposition of each of these cases requires both an application of the standard of review enunciated in State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977) (Leonardis II ), and the interpretation of various provisions of the Guidelines adopted by this Court relating to the operation of PTI programs, See Pressler, Current New Jersey Court Rules, Guidelines 1-8 at 497-503 (1978) (hereinafter Guidelines). Inasmuch as the factual patterns and legal principles involved in each of these cases differ in several material respects, we have chosen to treat each matter in a separate opinion. Certain principles, however, are equally applicable in all three cases and will be dealt with at the outset of the present ruling.

I Introduction

Pretrial Intervention (PTI) is a program whose chief aim is that of diverting individuals with high rehabilitative prospects from the traditional channels of the criminal process. Sponsored in conjunction with counseling and training services, the project provides alternatives to prosecution and conviction where the latter course would be "counterproductive, ineffective or unwarranted." State v. Leonardis, 71 N.J. 85, 89, 363 A.2d 321 (1976) (Leonardis I ). By relieving a certain class of criminal suspects of the time-consuming and often debilitating rigors of the criminal process as well as the stigma which attaches upon conviction of crime, PTI provides an avenue through which rehabilitation may more easily be accomplished. See Leonardis I, supra, 71 N.J. at 89-90, 92-102, 363 A.2d 321; State v. Senno, 79 N.J. 216, 227-228, 398 A.2d 873 (1979); Guideline 1(a)-(c). Another goal of the program is that of expediting the disposition of criminal matters in order that the caseload burdens of our trial courts be alleviated. See Leonardis I, supra, 71 N.J. at 89-90, 92-102, 363 A.2d 321; State v. Senno, supra, 79 N.J. at 228, 398 A.2d 873; Guideline 1(d).

The history of PTI in New Jersey, the policy considerations which led to our adoption of the program through R. 3:28, and the project's procedural workings have been fully outlined in Leonardis I, and need not here be repeated. See 71 N.J. at 92-107, 363 A.2d 321. Nor do we perceive any necessity to reiterate the reasoning which led to our holding in Leonardis II that prosecutorial decisions rejecting defendants' applications for PTI are subject to judicial review. See 73 N.J. at 375-380, 375 A.2d 607. Because of their special relevance to the cases presently before us, however, certain of the principles enunciated in the Leonardis decisions must be set forth.

Leonardis I makes clear that defendants who have been accused of Any crime are eligible for enrollment in PTI, and that admission is to be measured according to (a) the individual's amenability to correction, (b) his responsiveness to rehabilitation, and (c) the nature of the offense with which he is charged. See 71 N.J. at 121-122, 363 A.2d 321; Guidelines, Introduction and Guidelines 2, 3. Further, decisions made by judges, prosecutors, and program coordinators in granting or denying applications for PTI enrollment, as well as the underlying reasons therefor, must be reduced to writing and disclosed to the defendant. See 71 N.J. at 122, 363 A.2d 321; Guideline 8.

In Leonardis II, we noted that although every person accused of crime is eligible for PTI in the sense that his application must be given consideration, a prosecutor's refusal to divert can, where appropriate, be based solely on the nature of the offense charged. See 73 N.J. at 382, 375 A.2d 607; Guideline 3(i). Further, State v. Senno, supra, establishes that nonindictable offenses are not encompassed within the meaning of the term "crime" as used in R. 3:28 or the Guidelines, and hence a county is free to exclude from its program individuals accused of disorderly persons and motor vehicle infractions.

In Leonardis II, we held that judicial review of prosecutorial decisions denying admission into PTI does not contravene various state constitutional provisions. However, cognizant of the separation of powers concerns raised by such a procedure, we severely limited the scope of any review that would be undertaken. We emphasized that "great deference should be given to the prosecutor's determination not to consent to diversion" and that a defendant must sustain a "heavy burden . . . in order to overcome (such) a prosecutorial veto . . . ." 73 N.J. at 381, 375 A.2d at 618. Accordingly, we held that in order for a court to nullify the prosecutor's decision, the defendant must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of his discretion." Id. at 382, 375 A.2d at 618; See Guildeines 2, 3(i), 8.

II Facts of This Case

From 1960 to 1976, defendant was employed as a licensed pharmacist at the Wald Drug Store in Somerville, New Jersey. Married in 1960, he is presently the father of two children, aged 10 and 13. Aside from the incidents to be described below, he has never had any confrontations with the law.

At some point in 1972, while experiencing marital difficulties, defendant began to use cocaine. He soon became habituated to the drug and maintained his supply by diverting quantities from the stocks of the pharmacy at which he worked. Simultaneously, defendant began to consume large amounts of liquor daily and quickly became alcohol dependent. By the close of 1975, the debilitating physical and psychological effects of his drug and alcohol abuse became noticeable to his employer, who confronted defendant.

Defendant readily admitted his use of cocaine and alcohol, voluntarily provided written statements of his past criminal activities to State Pharmacy Board investigators, and immediately embarked upon a program of rehabilitation by entering the Carrier Clinic in Belle Mead. Upon his discharge from Carrier in January 1976, he enrolled in the Clinic's out-patient program. During the past three years, he has successfully completed programs sponsored by the Addiction Recovery Unit of Carrier, Alcoholics Anonymous, and the Somerset County Voluntary Drug Rehabilitation Program. In addition, defendant has volunteered his services in order to aid other addicts at Carrier and is presently serving on the Advisory Board of the Clinic's Addiction Recovery Unit.

Since his discharge from Carrier, defendant has resolved his marital difficulties through divorce. He has voluntarily refrained from the practice of pharmacy, even though his employer offered to restore him to his former position. Instead, defendant has obtained employment in a new field and has advanced in a relatively short period of time from minimum wage laborer to supervisor.

Defendant has made complete restitution to his former employers, both for the cocaine which he had diverted and the damage to the pharmacy's business deriving from adverse publicity. Defendant has also reimbursed the County Welfare Department for funds given and services rendered to his family during the period of his incapacity. Finally, it should be noted that on September 28, 1977, the State Board of Pharmacy revoked defendant's license to practice his former profession; consequently, he cannot now return to that position even should he so desire.

As a result of his activities involving the diversion and use of cocaine, in April 1976 defendant was indicted for seven drug-related offenses, including theft of cocaine over a four-year period (N.J.S.A. 2A:119-8.1); unlawful possession of various controlled dangerous substances (N.J.S.A. 24:21-20(a)(1), (3)); possession of controlled dangerous substances not in their original containers (N.J.S.A. 24:21-18); and failure to maintain certain records required by the Controlled Dangerous Substances Act (N.J.S.A. 24:21-21(a)(4); 24:21-13; 24:21-9). On November 15, 1976, defendant entered a plea of guilty to the count charging theft of cocaine. This plea was offered pursuant to an understanding reached with the prosecutor by which the State agreed to dismiss the remaining charges and recommend a noncustodial sentence.

Subsequently, in December of 1976, a Pretrial Intervention Program was established in Somerset County. Upon request of defendant's counsel, the trial judge withheld sentencing on the theft count pending completion of defendant's application for enrollment in the program.

After an exhaustive review of defendant's background, the circumstances surrounding his crime, his recovery through treatment, and his conduct subsequent to 1975, the program coordinator wholeheartedly recommended to the Deputy Attorney General that defendant be admitted to the PTI program. Notwithstanding, on March 28, 1977 the Deputy Attorney General advised the Probation Department that the State would not consent to defendant's enrollment. Two reasons were supplied:

A. (Defendant's) course of conduct . . . was a continuing criminal business or enterprise. * * * The defendant systematically used Schedule II order forms to obtain narcotics over a four year period.

B. The conduct pursued by the Defendant-Bender, a licensed pharmacist, is a breach of public trust where admission to a PTI program would depreciate (sic) the...