State v. Wallace

• Decision Date: 13 November 1996
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Bruce WALLACE, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 576

146 N.J. 576

684 A.2d 1355

STATE of New Jersey, Plaintiff-Appellant, v. Bruce WALLACE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 10, 1996.

Decided Nov. 13, 1996.

Jack L. Weinberg, Special Deputy Attorney General, Acting Assistant Prosecutor, for plaintiff-appellant (Joseph F Audino, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney; Kathleen M. Higgins and Joan Spadea, Special Deputy Attorneys General, Acting Assistant Prosecutors, of counsel and on the brief).

Saul J. Steinberg, Camden, for defendant-respondent (Steinberg and Ginsberg, attorneys).

John E. Adams, Jr., Deputy Attorney General, for amicus curiae Attorney General of New Jersey (Peter G. Verniero, Attorney General, attorney).

Diane Toscano, Assistant Deputy Public Defender, for amicus curiae Public Defender (Susan L. Reisner, Public Defender, attorney).

The opinion of the Court was delivered by

HANDLER, J.

In this case, a county prosecutor denied a criminal defendant's request for admission to a pre-trial intervention program. The Appellate Division reversed and remanded the case to the prosecutor for reconsideration.

We are once again called upon to address the issue of how much deference a court must afford the discretionary prosecutorial decision concerning the refusal to dismiss criminal charges and the refusal to admit a criminal defendant into a pre-trial intervention program.

I

At approximately 10:20 a.m. on Saturday June 5, 1993, defendant Bruce Wallace, an attorney and Cherry Hill councilman, arrived at the home of his former girlfriend Paula Stewart with a loaded .357 Smith & Wesson handgun. The approximately six-year relationship between defendant and Stewart had formally ended some ten months prior to this date, but the two had occasional contact since that time. As Stewart was preparing to leave for an appointment, defendant produced the gun and informed her that he had come to kill first her and then himself. Defendant was teary-eyed and, after looking at Stewart, realized that he could not do the intended act. He removed the gun and placed it on Stewart's microwave oven, telling her that he would never do anything to harm her. Defendant subsequently proceeded to unload the weapon. At no time did defendant point the loaded weapon at Stewart.

The June 5th incident was not an isolated event. Sometime during January, 1993, defendant and Stewart were having dinner together when defendant informed her that he had considered scheduling an appointment with Stewart's new boyfriend (a dentist) in order that he could cut the new boyfriend's throat. Stewart would later inform police that defendant had consistently threatened her new boyfriend. In April 1993, Stewart had received several urgent phone calls from defendant's psychiatrist warning her that defendant may attempt to harm either her person or her property. When Stewart failed to return the psychiatrist's calls, the psychiatrist warned the police. Approximately five weeks prior to the June 5th incident, defendant and Stewart apparently agreed that they would have no further contact.

Stewart reported the June 5th incident to the Voorhees Township Police Department. Defendant was arrested on June 8, 1993 and charged with second degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a), and third degree making of terroristic threats, contrary to N.J.S.A. 2C:12-3. Although bail was initially set for $20,000, that condition was modified when defendant entered Hampton Hospital for immediate inpatient psychiatric treatment. Defendant was diagnosed as suffering from major depression with certain biochemical deficiencies, and he remained in the hospital for three weeks following his arrest. He was released to the after-care of Dr. Jeffrey Greenbarg.

In July 1993, with the charges pending against him, defendant requested that the police return both of the weapons seized from him at the time of his arrest. The request was denied.

On September 2, 1993, defendant filed an application for admission to the Camden County pre-trial intervention program (PTI). Eleven days later an assistant Camden County prosecutor informed defendant's counsel that his application had been rejected. By motion dated September 27, 1993, defendant appealed the prosecutor's decision in the Superior Court, Law Division. The trial court ruled that defendant had not met his burden of demonstrating that the prosecutor had committed a "patent and gross abuse of discretion" and therefore denied the motion.

On January 20, 1994, defendant pled guilty to third-degree unlawful possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b. On March 24, 1994, he was sentenced to a three year probationary term which included the following conditions: one hundred hours of community service, continued psychiatric evaluation and treatment if necessary, forfeiture of all weapons seized with a restriction on the future purchase of firearms, forfeiture of his seat on the Cherry Hill city council, avoidance of purposeful contact with the victim and a $1,000 fine. Defendant reserved his right to appeal the prosecutor's decision to reject his PTI application.

Defendant appealed the trial court's decision. The Appellate Division reversed the decision of the trial court and remanded the case to the prosecutor. We granted the State's petition for certification, 143 N.J. 323, 670 A.2d 1064 (1995), and now reverse.

II

We reviewed the history and overall structure of PTI most recently in State v. Nwobu, 139 N.J. 236, 245-49, 652 A.2d 1209 (1995). See generally Pressler, Current N.J. Court Rules, comment 1 on R. 3:28 (1997). In Nwobu we noted that PTI is

[A]n alternative procedure to the traditional process of prosecuting criminal defendants. It is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter criminal behavior. PTI is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive, or unnecessary.

[139 N.J. at 240-41, 652 A.2d 1209.]

PTI was first established by Rule 3:28 in October 1970 as authority for the vocational-service pretrial intervention program operated by the Newark Defendants Employment Project. State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) ("Leonardis I "). The Court promulgated guidelines to implement the Rule. In 1979, the Legislature enacted a state-wide pre-trial intervention program as part of the Code of Criminal Justice. See N.J.S.A. 2C:43-12 to -22; State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977) ("Leonardis II "). Thus, since 1979, PTI has been governed simultaneously by the Rule and a statute which "generally mirror[ ]" each other. Nwobu, supra, 139 N.J. at 245, 652 A.2d 1209.

Throughout the program's history, the courts have remained sensitive to the fact that diversion is a quintessentially prosecutorial function. See, e.g., State v. Dalglish, 86 N.J. 503, 513, 432 A.2d 74 (1981) ("Since the Legislature has established a PTI program with judicial review ... the problem of judicial interference with legislative authority has been eliminated. Nevertheless, our concern about unwarranted interference with prosecutorial prerogative persists...."); State v. Kraft, 265 N.J.Super. 106, 111, 625 A.2d 579 (App.Div.1993) ("[I]t is the fundamental responsibility of the prosecutor to decide whom to prosecute...."). It is fairly understood that the prosecutor has great discretion in selecting whom to prosecute and whom to divert to an alternative program, such as PTI. Leonardis II, supra, 73 N.J. at 381, 375 A.2d 607.

The prosecutor's discretion is not unbridled, however. If a defendant can "clearly and convincingly establish that the prosecutor's refusal to sanction admission into the program was based on a patent and gross abuse of ... discretion," Leonardis II, supra, 73 N.J. at 382, 375 A.2d 607, a reviewing court may overrule the prosecutor and order a defendant admitted to PTI. See also Dalglish, supra, 86 N.J. 503, 432 A.2d 74 (holding that the patent and gross abuse of discretion standard applies after the adoption of the state-wide program as part of the 1979 Code of Criminal Justice). A "patent and gross abuse of discretion" is more than just an abuse of discretion as traditionally conceived; it is a prosecutorial decision that "has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention." State v. Ridgway, 208 N.J.Super. 118, 130, 504 A.2d 1241 (Law Div.1985) (citation omitted). In State v. Bender, 80 N.J. 84, 402 A.2d 217 (1979), we elaborated on the patent and gross abuse of discretion standard:

Ordinarily an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.... In order for such an abuse of discretion to rise to the level of 'patent and gross,' it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying Pretrial Intervention.

[Id. at 43, 504 A.2d 1241 (citation omitted).]

A defendant may persuade a court to vacate a PTI rejection and remand to the prosecutor for reconsideration on a somewhat lesser showing. Dalglish, supra, 86 N.J. at 509-11, 432 A.2d 74. If the reviewing court finds that "the prosecutor's decision was arbitrary, irrational, or otherwise an abuse of discretion, but not a patent and gross abuse, and also determines that a remand will serve a useful purpose," id. at 509, 432 A.2d 74, it could send the case back to the prosecutor. A remand might serve a useful purpose, for example, where it has been clearly and convincingly shown by a defendant that the prosecutor failed to consider all...