State v. Lopes

• Decision Date: 01 September 1995
• Citation: 289 N.J.Super. 460,673 A.2d 1379
• Parties: STATE of New Jersey, Plaintiff, v. Paulo A. LOPES, Defendant. (Criminal), Bergen County
• Court: New Jersey Superior Court

Page 460

289 N.J.Super. 460

673 A.2d 1379

STATE of New Jersey, Plaintiff, v.Paulo A. LOPES, Defendant.

Superior Court of New Jersey, Law Division (Criminal), Bergen County.

Decided Sept. 1, 1995.

Charles R. Buckley, Deputy Attorney General--In Charge, Acting Bergen County Prosecutor, for plaintiff(Daniel J. FitzPatrick, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel).

Frank W. Jablonski, Kearny, for defendant(Gillespie, Gillespie & Jablonski, attorneys).

PARSONS, Jr., J.S.C.

By way of timely motion, the defendant, Paulo A. Lopes, challenges the judicially-appointed Pretrial Intervention program director's denial of his application for admission into the Pretrial Intervention program (PTI).Because the prosecutor consents to the defendant's admission into PTI while the PTI program director (PTI director or program director) opposes his participation in it, the court must decide this case according to the standard of review applicable to a PTI program director's decision whether to admit a defendant into PTI.Before discussing the nature of the applicable standard of review, however, the court must give the following factual backdrop.

I.Findings of Fact

On October 8, 1993, a van approached two children in Lyndhurst.The defendant, a passenger in the van, told one of the youngsters that the child's father(a local police officer) had sent him to pick up the child and bring him home for dinner.The child was not asked to get into the van and no attempt was made by anyone to get out of the van to grab the child in order to put him into the vehicle.

Pursuant to Bergen County Indictment S-389-94, the defendant was charged with two counts (against separate victims) of third degree attempted involuntary servitude ( N.J.S.A. 2C:5-1andN.J.S.A. 2C:13-2).On April 29, 1994, the defendant applied for admission into PTI.On May 6, of that year, the State of New Jersey, through Acting Assistant ProsecutorDanielle Grootenboer, denied the defendant's application for admission, citing various factors.Thereafter, on May 17, the PTI program director, through Michael Nunno, also denied the defendant's application.The program director's "Denial Notice" contains check marks next to the following factors:

(1) beyond the scope of PTI, R. 3:28, Guideline 1-d;

(2) no causal connection between the offense charged and the need for rehabilitative services, R. 3:28, Guideline 1e;

(3) offense was committed with violence or the threat of violence, R. 3:28, Guideline 3i3;

(4) admission to PTI would deprecate the serious nature of the offense, R. 3:28, Guideline 3i;

(5) the nature of the offense, N.J.S.A. 2C:43-12e(1);

(6) the needs and interest of the victim and/or society would not be met by PTI enrollment of this defendant, N.J.S.A. 2C:43-12e(7);

(7) the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution, N.J.S.A. 2C:43-12e(14); and

(8)"other", which, in this particular case, focuses on how children were allegedly involved in the charged offenses.

Aside from repeated references to the alleged involvement of children in the charged offenses (which seems of slight relevance once it is noted that the statute governing the crime allegedly attempted contains no special provisions for the protection of children), the PTI director's denial notice merely "parrots" the relevant statutes, rules, and guidelines.

The defendant urged the State to reconsider its position.The State agreed to reconsider the defendant's application and, after review of a newly submitted psychological report, decided to consent to the defendant's admission into PTI on November 22, 1994.Nevertheless, the program director continued to disagree with the defendant's admission into PTI.

The defendant timely moved to challenge the program director's denial of his application and a hearing was scheduled.In support of his application, the defendant submitted papers wherein, citing State v. Rosario, 237 N.J.Super. 63, 566 A.2d 1173(App.Div.1989), certif. denied, 122 N.J. 139, 584 A.2d 212(1990), he emphasized that the program director focused on the nature of the offense to the exclusion of other relevant factors.As such, defense counsel attempted to highlight his client's personal character and qualities by noting that the defendant, who is gainfully employed, is married and lives with his wife and two young children.In addition, counsel indicated that, before the instant indictment, the defendant had never been charged with or convicted of any offense.Finally, defense counsel attacked the program director's evaluation of the nature of the offense by noting that the alleged incident did not involve violence or even the threat thereof.

At the hearing, the prosecutor stated that "the PTI program [director's decision] is wrong."The PTI director's representative again restated the PTI director's emphasis upon the alleged facts of the case.In response, the court repeatedly attempted to elicit, from the PTI director, a factual basis for his choice of the applicable factors.For the most part, however, the court's attempts bore no fruit.Indeed, upon questioning by the court as to the factual basis for factor number (3) above (concerning violence or the threat of violence), the PTI director, upon further reflection, decided to remove it as inappropriate.The program director also agreed to re-evaluate the defendant's application in light of the psychological report submitted by the defendant.Accordingly, the court reserved decision on the matter.

Upon consideration of the psychological report submitted by the defendant, the program director again rejected the defendant's application for admission to PTI.¹Consequently, the court held a hearing on the PTI director's renewed refusal to recommend the defendant's admission to PTI.At that hearing, the PTI director again failed to give a factual basis for his choice of factors, save for repeated references to the involvement of children in the alleged incident.

II.Legal Analysis

A.Separation of Powers

1.Generally

By virtue of its constitutional authority to "make rules governing the ... procedure in all ... courts", N.J. Const., art. VI, § II, p 3, the Supreme Court created the Pretrial Intervention program in 1970 by way of R. 3:28.State v. Leonardis, 71 N.J. 85, 103, 363 A.2d 321(1976)(Leonardis I );State v. Leonardis, 73 N.J. 360, 368-369, 375 A.2d 607(1977)(Leonardis II ).After its decision in Leonardis I, supra, 71 N.J. at 97-98, 363 A.2d 321, the Court, pursuant to its rulemaking authority, promulgated statewide guidelines for the implementation of PTI.In 1979, the Legislature, by virtue of its authority over the substantive aspect of criminal law, enacted "a statewide program of pretrial intervention" that "generally mirrored the procedures and guidelines previously established under Rule 3:28."State v. Nwobu, 139 N.J. 236, 245, 652 A.2d 1209(1995);seeN.J.S.A. 2C:43-12.

The result of this activity is a system where judicial, executive, and legislative powers overlap, creating separation of powers issues.²See generallyN.J. Const. art. III, p 1(separation of powers provision of our state constitution).A good example of such an overlap of power is the matter before this court: the decision whether to admit a defendant to PTI.This choice entails a quasi-judicial decision, Leonardis II, supra, 73 N.J. at 376, 375 A.2d 607, made by a judicially-appointed program director and a county prosecutor(who performs an executive charging function) according to factors created by statute, legislative-type acts of the judicial branch, and case law.Indeed, "[a]lthough pretrial diversion is by its nature part of the prosecutor's charging function, the statutes, procedures, and guidelines involve the judiciary in the administration of PTI."Nwobu, supra, 139 N.J. at 245, 652 A.2d 1209.

While the overlap of power in the PTI area may at first seem objectionable on separation of powers grounds, it is not violative of that doctrine because it does not require an absolute division of power among the three branches.Leonardis II, supra, 73 N.J. at 369-375, 375 A.2d 607.Indeed, the doctrine of separation of powers is only designed to "prevent a single branch from claiming or receiving inordinate power ... [and] necessarily assumes the branches will coordinate to the end that government will fulfill its mission."Brown v. Heymann, 62 N.J. 1, 11, 297 A.2d 572(1972).Accordingly, the type of cooperative action among co-equal branches of government represented by the creation and implementation of PTI is not only cognizable under the doctrine of separation of powers, but such cooperation is one of the doctrine's primary goals.³Leonardis II, supra, 73 N.J. at 372, 375 A.2d 607.

Nevertheless, the different branches of government sometimes seek to implement PTI in different ways.In this case, for example, there is a disagreement between the prosecutor(who wishes to utilize the PTI option) and the PTI director (who refuses to recommend the defendant's admission into the program).In order to forestall such conflict as much as possible, the law recognizes another aspect of the doctrine of separation of powers the concept of deference to a co-equal branch of government.As discussed below, judicial deference to the prosecutor's executive charging function greatly influenced the Supreme Court's articulation of the "enhanced deference" standard of judicial review applicable to a prosecutor's decision concerning a defendant's application for admission to PTI.However, also for reasons to be enunciated below, the "enhanced deference" standard of review is inapplicable to the PTI director's choice, because the PTI director is an agent of the judicial branch who does not perform an executive-type prosecutorial charging function.

2.Standards of Review

a. The Prosecutor's Decision

The standard of...