(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).
Argued September l0, l996 -- Decided November 13, 1996
Handler, J., writing for a unanimous Court.
In this opinion, the Court addresses the issue of the quantum of deference to be afforded 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.
The facts leading to the denial of respondent's application to the Pre-trial Intervention Program (PTI)
are simple. On June 5, l993, 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. During their
encounter, Wallace produced the gun and informed Stewart that he had come to kill first her and then himself.
However, Wallace became teary-eyed, put down the gun and told Stewart that he could never do anything to
harm her. He then unloaded the weapon.
When Stewart reported the June 5th incident to the Voorhees Township Police Department, Wallace
was arrested and charged with second degree possession of a firearm for an unlawful purpose, in violation of
N.J.S.A. 2C:39-4(a), and making terroristic threats, a crime of the third degree, in violation of N.J.S.A. 2C:12-3.
Shortly after bail was set, Wallace entered Hampton Hospital for inpatient treatment, where he was diagnosed
as suffering from major depression with certain biochemical deficiencies
On September 2, 1993, Wallace filed an application for admission to the Camden County pre-trial
intervention program, maintaining that his criminal behavior was related to his depression. That application was
denied. In her letter denying Wallace's application, the assistant prosecutor relied on a prosecutorial guideline
that discourages PTI for defendants charged with either first or second degree offenses. The assistant prosecutor
further noted that Wallace was charged with acts committed with violence or the threat of violence.
By motion, Wallace appealed the prosecutor's decision in the Superior Court, Law Division. The trial
court ruled that Wallace had not met his burden of demonstrating that the prosecutor had committed a “patent
and gross abuse of discretion” and denied the motion.
On January 20, l994, Wallace pled guilty to third-degree unlawful possession of a handgun without a
permit, contrary to N.J.S.A. 2C:39-5b. Wallace reserved his right to appeal the prosecutor's rejection of his PTI
application. He was sentenced to three years probation with several conditions.
Following his sentencing, Wallace appealed the trial court's decision. The Appellate Division reversed
the decision of the trial court and remanded the case to the prosecutor. The Supreme Court granted the State's
petition for certification.
HELD: The assistant prosecutor's evaluation and denial of defendant's application for admission to the Pre-trial
Intervention Program did not amount to a clear error of judgment.
1. PTI was established as an alternative procedure to the traditional process of prosecuting criminal defendants
and is intended to augment the criminal justice system when prosecution would be ineffective, counterproductive,
or unnecessary. Throughout the program's history, the courts have remained sensitive to the fact that diversion
is a quintessentially prosecutorial function and the prosecutor has great discretion in selecting whom to prosecute
and whom to divert. (pp. 5-6)
2. Although the prosecutor's discretion is not unbridled, in order for a court to overrule the prosecutor's
refusal to sanction admission into the program and to order a defendant admitted to PTI, a defendant must
clearly and convincingly establish to a reviewing court that the prosecutor's decision was based on a patent and
gross abuse of discretion. A “patent and gross abuse of discretion” is one that “has gone so wide of the mark
sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.” (pp. 6-7)
3. A defendant may persuade a court to vacate a PTI rejection and remand to the prosecutor for reconsideration
on a lesser showing. Specifically, the defendant need only show that the prosecutor's decision was arbitrary,
irrational, or otherwise an abuse of discretion and that a remand will serve a useful purpose. (pp. 7-8)
4. Absent a demonstration by the defendant to the contrary, a prosecutor must be presumed to have considered
all relevant factors. A reviewing court's scrutiny of the prosecutor's PTI decision is generally limited to the
justification contained in the statement of reasons. (p. 9)
5. Although the Legislature has highlighted several factors for the prosecutor or program director to consider,
it clearly intended to leave the weighing process to the prosecutor or program director. Moreover, while the PTI
guidelines set forth in R. 3:28 represent a somewhat greater attempt to channel prosecutorial discretion than
the statute, in the end, it is the prosecutor's responsibility to weigh the various factors and to reach a
determination. It remains the obligation of the judiciary to check those instances where the prosecutor has so
inappropriately weighted the various considerations so as to constitute a “clear error in judgment.” (pp. 10-12)
6. A subsequently negotiated non-custodial sentence does not retrospectively impugn the soundness of a previous
prosecutorial decision that criminal prosecution, rather than pretrial diversion, is appropriate. To permit such
a line of attack would unfairly undermine an otherwise well-founded decision to deny PTI, would seriously
inhibit the prosecutor's discretion and would discourage efforts by the State to enter into a negotiated plea
agreement that attempts to accommodate a defendant's condition. To the extent that State v. Fitzsimmons,
291 N.J. Super. 375 (App. Div.), cert. denied __ N.J. __ (1996), endorses a different standard, it is disapproved. (p.
15)
7. The Appellate Division failed to view the prosecutor's decision through the filter of the highly deferential
standard of review. The level of deference to be given a prosecutor's PTI decision is so high that it has been
categorized as 'enhanced deference' or 'extra deference.' (pp. 15-16)
The judgment of the Appellate Division is REVERSED.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in JUSTICE
HANDLER's opinion. CHIEF JUSTICE PORITZ did not participate.
SUPREME COURT OF NEW JERSEY
A-
4 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRUCE WALLACE,
Defendant-Respondent.
Argued September 10, 1996 -- Decided November 13, 1996
On certification to the Superior Court,
Appellate Division.
Jack L. Weinberg, Special Deputy Attorney
General, Acting Assistant Prosecutor,
argued the cause for 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 argued the cause for
respondent (Steinberg and Ginsberg, attorneys).
John E. Adams, Jr., Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Peter G. Verniero,
Attorney General, attorney).
Diane Toscano, Assistant Deputy Public
Defender, argued the cause 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.
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 (1995), and now reverse.
We reviewed the history and overall structure of PTI most recently in State v. Nwobu, 139 N.J. 236, 245-49 (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.
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 (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 (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.
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 (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 (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.
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, a reviewing court may overrule the
prosecutor and order a defendant admitted to PTI. See also
Dalglish, supra,
86 N.J. 503 (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 (Law Div. 1985) (citation omitted). In State v.
Bender,
80 N.J. 84 (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.
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. 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, 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 relevant factors. If such an omission resulted in a decision that
although not clearly subversive to the underlying goals of PTI,
might not otherwise have been reached, a reviewing court could
refer the case to the prosecutor for reconsideration. See, e.g.,
State v. Burger,
222 N.J. Super. 336 (App. Div. 1988) (remanding
PTI rejection to prosecutor where prosecutor failed to consider
defendant's amenability to rehabilitation even though such
failure did not amount to a patent and gross abuse of
discretion). Previously we have explained that the relatively
low threshold for judicial intervention in these circumstances is
acceptable because "[t]hese instances raise issues akin to
questions of law, concerning which courts should exercise
independent judgment in fulfilling their responsibility to
maintain the integrity and proper functioning of PTI as a whole."
Dalglish, supra, 86 N.J. at 510. It is unlikely, on the other
hand, that a remand would serve a useful purpose if the
prosecutor's decision was based on appropriate factors but,
clearly and convincingly, amounted to a plain error of judgment
equivalent to a patent and gross abuse of discretion. In that
situation it is usually appropriate for a court directly to order
admission to PTI.
A prosecutor is required to provide a criminal defendant
with a statement of reasons justifying his or her PTI decision,
and the statement of reasons must demonstrate that the prosecutor
has carefully considered the facts in light of the relevant law.
See State v. Sutton,
80 N.J. 110, 117 (1979) ("The statement of
reasons may not simply 'parrot' the language of relevant
statutes, rules, and guidelines."). The statement of reasons
serves four primary purposes: (a) it facilitates effective
judicial review, (b) it assists in evaluating the success of the
PTI program, (c) it affords the defendant an opportunity to
prepare a response, and (d) it dispels suspicions of
arbitrariness. See Nwobu, supra, 139 N.J. at 249 (citations
omitted). In addition, the requirement that the prosecutor put
his or her thought process on paper tends to protect against the
consideration of inappropriate factors and promotes reasoned
decision-making.
We presume that a prosecutor considered all relevant
factors, absent a demonstration by the defendant to the contrary.
See Bender, supra, 80 N.J. at 94. Additionally, a reviewing
court's scrutiny is generally limited to the justification
contained in the statement of reasons; a criminal defendant
cannot "compel the prosecutor to take the stand," ibid., either
literally or figuratively, in the process of challenging his or
her PTI rejection decision.
The foregoing legal edifice was constructed with careful
attention to the preservation of the traditional role of the
prosecutor. Thus, we once again reaffirm our expectation that a
prosecutor's decision to reject a PTI applicant "will rarely be
overturned." Leonardis II, supra, 73 N.J. at 380.
In this case, the Appellate Division reversed the assistant
prosecutor's PTI rejection and remanded the case for her
reconsideration. The issue before this Court is whether there
was sufficient evidence to support the necessary finding that the
assistant prosecutor's decision was arbitrary, irrational or
otherwise an abuse of discretion. See Dalglish, supra, 86 N.J.
at 509 (ruling that ordinary abuse of discretion standard
applicable for remand to prosecutor).
The Legislature has provided seventeen criteria, "among
others," that prosecutors and program directors shall consider in
formulating their PTI recommendation. See N.J.S.A. 2C:43-12(e)
(nature of offense, facts of the case, motivation and age of
defendant, desire of victim to forego prosecution, unavailability
of services suitable for defendant in the criminal justice
system, likelihood that supervisory treatment would affect change
in defendant, needs and interests of victim and society, extent
to which defendant's crime is part of a continuing pattern of
anti-social behavior, defendant's prior record, whether
defendant's crime was of a violent nature, whether prosecution
would merely exacerbate the social problem that led the defendant
to commit the crime, defendant's history of physical violence
toward others, applicant's link to organized crime, whether value
of diversion would be outweighed by need for public prosecution,
involvement of others in the crime, whether a grant of
defendant's PTI application will affect the state's ability to
prosecute codefendants, and whether the harm done to society by
diversion would outweigh the benefits to society). Notably,
nowhere does the statute attempt to instruct the prosecutor on
the relative weight to be assigned these several criteria.
Although the Legislature has highlighted several factors for the
prosecutor or program director to consider, it clearly intended
to leave the weighing process to the prosecutor or program
director.
The guidelines are similarly structured, although not
exactly parallel. See Pressler, Current N.J. Court Rules, R.
3:28 (1997). Guideline 3 refers to the statutory criteria and
supplements them with additional ones derived from the
pre-statutory guidelines. See generally, comment on Guideline 3.
Thus, for example, Guideline 3(i) elaborates upon statutory
criteria e(1) ("nature of the offense"). Guideline 3(i) counsels
that a PTI application "should generally be rejected" if the
defendant has been charged with (a) taking part in organized
criminal activity, (b) taking part in a continuing criminal
business or enterprise, (c) acting with deliberate violence or
the threat of violence, or (d) committing any act which
constitutes a breach of the public trust. Although the
Guidelines do represent a somewhat greater attempt to channel
prosecutorial discretion than the statute, in the end it remains
the responsibility of the prosecutor to weigh the various factors
and to reach a determination.
We are not to be understood as endorsing unbridled
prosecutorial discretion simply because all relevant factors and
no inappropriate factors are in the mix. On the contrary, it
remains the obligation of the judiciary to check those instances
where the prosecutor has so inappropriately weighted the various
considerations so as to constitute a "clear error in judgment."
See Leonardis II, supra, 73 N.J. at 376 ("Even if a diversion
decision did not entail the exercise of a 'quasi-judicial power,'
review in this instance would be consistent with the traditional
role which courts have exercised in safeguarding individuals from
abusive governmental action."). See, e.g., State v. Mickens,
236 N.J. Super. 272 (App. Div. 1989) (ordering PTI admission for a
single mother of three young children charged with welfare fraud
where the woman would lose her job if convicted and the woman was
willing to make full restitution); see also State v. Hoffman,
224 N.J. Super. 149 (App. Div. 1988) (ordering PTI for a constable
who mistakenly executed an unsigned writ of replevin and thereby
committed criminal trespass and official misconduct).
In this case, however, the opinion of the Appellate
Division, although it includes a perfunctory recitation of the
'patent and gross abuse of discretion' standard,See footnote 1 fails to
provide any explanation of the basis for its decision. The
appellate panel stated that
The critical question, which was not answered
in prior proceedings, is whether Wallace was
suffering from an exclusively mental problem
when he committed the criminal acts and, if
so, whether that condition can be treated.
If this is the case, neither the fact that he
threatened violence nor the fact that the
illness caused him to make threats on other
occasions warrants that he be barred from
P.T.I. altogether. Indeed, if he is curable,
P.T.I. is very much in order especially for a
person with Wallace's otherwise exemplary
prior record, his abilities and his apparent
good standing in the community.
What the Appellate Division seems to be saying is not that
the prosecutor either failed to consider all relevant factors or
that she considered inappropriate factors, but rather that she
failed to assign appropriate weight to the defendant's mental
condition at the time of the offense, and, in addition, that the
facts concerning that mental condition should be further
explored. Indeed, it was and remains the crux of the defendant's
position that the prosecutor focused too narrowly on the nature
of the offense and to the exclusion of the individual
circumstances of the defendant, including the depression he was
suffering at the time of the offense.
Here it is clear that the prosecutor considered all the
relevant factors including defendant's mental condition at the
time of June 5th incident. In support of his application for
PTI, defendant argued that his criminal behavior was related to
his depression. Defendant also provided the opinion of Dr.
Greenbarg, which was that defendant's depression was treatable
with medication and psychotherapy.
In rejecting defendant's application, the assistant
prosecutor considered the submitted information. Her rejection
letter began:
After a review of the State's package and all
materials provided, including Dr. Greenbarg's
letter and your comments submitted in support
of your client's application, be advised that
your client's application for admission into
the P.T.I. Program is denied.
The prosecutor continued:
Despite the fact that your client has no
previous criminal record, he is not an
appropriate candidate for the Program. He
has been under psychiatric care and appears
to be unstable and violent.
As support for her decision, the prosecutor primarily relied on a
prosecutorial guideline that discourages PTI for those defendants
charged with either first or second degree offenses. See R.
3:28, Guideline 3(i). After adding that PTI is also not
recommended for individuals charged with acts committed with
violence or the threat of violence, see R. 3:28, Guideline
3(i)(3), the prosecutor stated that "[y]our client created a
potentially deadly situation. The violent nature of this crime
cannot be disputed. He went there to kill her."
Thus, defendant's contention that the prosecutor did not
consider, "in the true sense of the word," his mental condition
and his amenability to treatment is not sustainable. The
appellate court improperly agreed with defendant, despite the
clear evidence that the prosecutor both had possession of and
presumably considered the information supplied to her by Dr.
Greenbarg and defendant's counsel. See Nwobu, supra, 139 N.J. at
249 (noting presumption that the prosecutor has considered all
relevant factors).
Defendant also argues that a reviewing court should accord
significant weight to the post-rejection imposition of a non-custodial term of probation based in part on rehabilitative
concerns, particularly when, as in this case, the negotiated plea
reduces the second-degree offense to a third-degree offense for
sentencing purposes. We think, however, that a subsequently
negotiated non-custodial sentence does not retrospectively impugn
the soundness of a previous prosecutorial decision that criminal
prosecution rather than pretrial diversion is the appropriate
disposition of the charges against the defendant. To permit that
line of attack would unfairly undermine an otherwise well-founded
decision to deny PTI. It would also seriously inhibit the
discretion of the prosecutor with respect to the PTI decision
and, after the denial of PTI, would serve to discourage efforts
by the State to enter into a negotiated plea agreement that seeks
to accommodate a defendant's condition, need for treatment,
amenability to supervision, and likelihood for rehabilitation.
To the extent State v. Fitzsimmons,
291 N.J.Super. 375 (App.
Div.), certif. denied, __ N.J. __ (1996), endorses a different
standard, we disapprove that decision.
The reality of this case is that the prosecutor weighed the
relevant and material factors and reached a conclusion that
defendant was not an appropriate candidate for PTI. Defendant
and the Appellate Division performed a similar weighing process
and reached a contrary conclusion. The problem is that the
Appellate Division failed to view the prosecutor's decision
through the filter of the highly deferential standard of review.
See Kraft, supra, 265 N.J. Super. at 111 ("In fact, the level of
deference which is required is so high that it has been
categorized as 'enhanced deference' or 'extra deference.'"
(citations omitted)). The court essentially evaluated the case
as if it stood in the shoes of the prosecutor, whereas it should
have been focused on whether it amounted to an 'arbitrary,
irrational or otherwise an abuse of discretion' for the
prosecutor to have assigned as much weight to the gravity of the
offense as she apparently did in this case.
Regardless of how we would have decided this case if
required to do so de novo, we do not think that the assistant
prosecutor's evaluation of the situation and balance of the
factors amounted to a clear error of judgment. See Nwobu, supra,
139 N.J. at 254 ("The question is not whether we agree or
disagree with the prosecutor's decision, but whether the
prosecutor's decision could not have been reasonably made upon
weighing the relevant factors."). A prosecutor has the
prerogative to view seriously matters of domestic violence, see
Kraft, supra, 265 N.J. Super. at 117 ("Certainly, a reviewing
court is not permitted to 'discount the prosecutor's
responsiveness to the prevailing level of local public anxiety
over certain forms of misconduct and its proper effect upon him
in choosing between the goals of public deterrence and the least
burdensome form of rehabilitation for the offender.'" (citing
State v. Litton,
155 N.J. Super. 207 (App. Div. 1977)), and
apparently the prosecutor has chosen to do so in this case.
The judgment of the Appellate Division is reversed.
JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join
in JUSTICE HANDLER's opinion. CHIEF JUSTICE PORITZ did not
participate.
NO. A-4 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRUCE WALLACE,
Defendant-Respondent.
DECIDED November 13, 1996
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 As noted earlier, the patent and gross abuse of discretion is inapplicable in light of the result reached by the Appellate Division. In order to remand the case to the prosecutor as it did, the court need only find that the prosecutor's decision was arbitrary, irrational or otherwise an abuse of discretion.