(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 January 7, 1997 -- Decided April 1, 1997
GARIBALDI, J., writing for a unanimous Court.
The issue raised on this appeal is whether the trial court correctly reversed the Monmouth County
prosecutor's rejection of Wallace Baynes's admission in a Pretrial Intervention (PTI) Program. Specifically,
the question before the Court is whether the prosecutor's decision, based on his stated policy of denying
admission into PTI to any defendant charged with possession of a controlled dangerous substance within
1,000 feet of a school zone, constitutes a “patent and gross abuse of discretion.”
The facts are undisputed. On September 28, 1994, Baynes purchased .44 grams of heroin from Jose
Morales in a location that was approximately 900 feet from an elementary school. Baynes was arrested and
subsequently indicted by a grand jury for possession of a controlled dangerous substance (CDS), namely
heroin, and possession of CDS within 1,000 feet of a school zone. Drug possession is a third-degree crime.
In his defense, Baynes claimed that he purchased the heroin because he was having difficulty dealing
with the serious illness of his mother, who has since died. At the time of his application for admission into
the Monmouth County PTI Program, Baynes was forty-three years old, was gainfully employed, and resided
with and supported his elderly mother and seventeen-year-old son. Baynes had been employed by the same
employer for the previous nine years. Baynes did have two prior incidents on his record. In 1969, as a
juvenile, he was charged with burglary. In 1979, Baynes was convicted of disorderly conduct, as a result of a
commotion in a movie theater.
The Director of the PTI program accepted Baynes's application for admission and the head of the
narcotics team that had arrested Baynes had no objection to diversion into PTI. The prosecutor rejected
Baynes's PTI application because of the acknowledged policy to deny PTI admission to defendants charged
with “school zone offenses,” including those involving possession of CDS for personal use.
On June 23, 1995, on a hearing for reconsideration, the trial court reversed the prosecutor's
decision, finding that the prosecutor failed to consider all the relevant factors. The matter was referred back
to the prosecutor for reconsideration. The prosecutor again opposed Baynes's diversion into PTI and, after
a second hearing appealing that decision, the trial court ordered Baynes's admission into the PTI program
over the prosecutor's objection. The court concluded that the prosecutor's decision constituted a gross and
patent abuse of discretion because it is so clearly unreasonable that it shocks the judicial conscience, subverts
the goals of PTI, and constitutes a clear error of judgment in that it could not reasonably have been made on
a fair weighing of all relevant factors.
The Appellate Division upheld the trial court's decision, concluding that the State's objection to
Baynes's admission into PTI was an arbitrary exercise of prosecutorial authority. The Supreme Court
granted the State's petition for certification.
HELD: Prosecutorial discretion in reviewing pre-trial intervention applications does not permit exclusion of
PTI applicants solely because they are subject to the “school zone” sentencing enhancement.
Possession of controlled dangerous substances for personal use within 1,000 feet of a school cannot
in every instance be an “appropriate circumstance” to rely solely on the nature of the offense in
rejecting a PTI application.
1. PTI is a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior. Admission into PTI is based
on a recommendation by the criminal division manager, as director of the PTI program, with the consent of
the prosecutor. The Court has provided criteria for making PTI decisions in its Guidelines for Operation of
Pretrial Intervention (Guidelines). Guidelines 1, 2, 3 and 8 are particularly relevant here. Guideline 1 sets
forth the purposes of PTI. Guideline 2 provides that any defendant accused of a crime is eligible for
admission into PTI. Guideline 3, specifically Guideline 3(I), clarifies how “the nature of the offense” is to
be used in assessing a defendant's PTI eligibility. The nature of the crime is only one factor to be
considered; however, there is a presumption against acceptance into a PTI program for certain types of
criminal activity. Guideline 8 requires a judge, prosecutor or criminal division manager, making a PTI
decision, to provide defendant with a statement of reasons justifying the decision and demonstrating the
consideration of all relevant factors. (pp. 5-7)
2. A prosecutor's decision to reject admission into PTI is to be afforded “enhanced deference.” Therefore,
a prosecutor's decision will rarely be overturned on judicial review. Absent evidence to the contrary, a
reviewing court must assume that all relevant factors were considered by the prosecutor. The court may
order a defendant into PTI over the prosecutor's objection only if defendant can clearly and convincingly
establish that the prosecutor's denial of PTI was based on a patent and gross abuse of discretion. (pp. 7-9)
3. In State v. Bender, the Court defined the patent and gross abuse of discretion standard. A prosecutor has
abused his or her discretion if the prosecutor's decision (1) is not premised on a consideration of all relevant
factors; (2) is based on a consideration of irrelevant or inappropriate factors; or (3) amounts to a clear error
in judgment. In order for an abuse of discretion to be considered patent and gross, it must be shown that
the prosecutorial error complained of will clearly subvert the goals underlying PTI. The prosecutor's
rejection of Baynes's PTI application falls under categories (1) and (3) of Bender. (pp. 9-10)
4. The prosecutor's rejection was not based on all of the relevant factors since, by their nature, per se rules
require prosecutors to disregard relevant factors in contravention of the Guidelines. When a defendant
demonstrates that a prosecutor has relied on such a rule, the presumption that the prosecutor has considered
all relevant factors is overcome. Under the case law of this jurisdiction, it is appropriate for prosecutors to
base a rejection solely on the nature of the offense for which the Guidelines express a presumption against
admission into PTI. However, no court has indicated that possession of CDS for personal use is an
“appropriate circumstance” that alone can justify denying PTI. (pp. 10-15)
5. Under the third prong of Bender, a prosecutor will be found to have made a “clear error in judgment,”
when the decision to reject PTI was premised on appropriate factors and rationally explained but is contrary
to the predominate view of others responsible for the administration of justice. The 1987 Comprehensive
Drug Reform Act fails to indicate the intent prescribed to it by the Monmouth County prosecutor.
Moreover, in the Attorney General's Supplemental Directive for Prosecuting Cases Under the
Comprehensive Drug Reform Act (the Directive), specifically section 6 (c), does not adopt the policy
followed by the Monmouth County prosecutor. The Directive embodies a conscious policy choice by the AG
to allow PTI candidates charged with simple possession in a school zone into PTI, but only if they satisfy the
mandatory non-incarcerative aspects of the program. (pp. 15-18)
6. As a first-time offender charged with a non-violent, third-degree offense, Baynes is eligible for diversion
into the PTI program. By abandoning his discretion in favor of a per se rule, the prosecutor made a decision
unsupported by the legislative purposes behind both the PTI statute and the Comprehensive Drug Reform
Act, and by the Guidelines and case law. The rejection of Baynes's PTI application was an abuse of
discretion under two categories of the Bender test. Moreover, because the policy of the Monmouth County
prosecutor subverts the goals underlying PTI, Baynes's rejection was a patent and gross abuse of discretion.
Accordingly, the trial court correctly ordered admission into the PTI program. (pp. 18-20)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
63 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WALLACE BAYNES,
Defendant-Respondent.
Argued January 7, 1997 -- Decided April 1, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
287 N.J. Super. 336 (1996).
Mark P. Stalford, Assistant Prosecutor,
argued the cause for appellant (John Kaye,
Monmouth County Prosecutor, attorney; Barbara
J. Schoenewolf and Michael H. Pohl, Legal
Assistants, on the brief).
James N. Butler, Jr., argued the cause for
respondent.
William M.A. Porter argued the cause for
amicus curiae The Association of Criminal
Defense Lawyers of New Jersey (Kevin H.
Marino, attorney).
Anne C. Paskow, Assistant Attorney General,
submitted a brief on behalf of amicus curiae
Attorney General of New Jersey (Peter G.
Verniero, Attorney General, attorney).
The opinion of the Court was delivered by
Garibaldi, J.
The Court again addresses whether a trial court correctly
reversed a prosecutor's rejection of a defendant's admission into
a Pretrial Intervention (PTI) Program. In particular, we must
determine whether the Monmouth County prosecutor's decision,
based on his stated policy of denying admission into PTI to any
defendant charged with possession of a controlled dangerous
substance within 1,000 feet of a school zone, constitutes a
"patent and gross abuse of discretion."
The facts of this case are undisputed. On September 28, 1994, at approximately 5:30 p.m., defendant, Wallace Baynes, purchased .44 grams of heroin from Jose Morales. The purchase was made outside of the Rainbow Liquor Store, 141 Broadway in Long Branch. At that time, the State was under surveillance by the Long Branch Police Department's narcotics team. The location of the purchase occurred approximately nine hundred feet from the Garfield Primary School.
Baynes was arrested and subsequently indicted by the Monmouth County Grand Jury for Possession of a Controlled Dangerous Substance (CDS), namely, heroin, contrary to N.J.S.A. 2C:35-10a(1) and Possession of CDS Within 1,000 Feet of a School Zone, contrary to N.J.S.A. 2C:35-10a(1). Drug possession is a third-degree crime.
Defendant claims that he purchased the heroin because he was having difficulty dealing with the serious illness of his mother, who has since passed away. At the time of his application for admission into the Monmouth County Pretrial Intervention Program,
defendant was a forty-three year old gainfully employed father of
one, residing with and supporting his elderly mother and his
seventeen year old son. He had completed two years of college.
According to defendant, he had been employed by the same employer
for the previous nine years.
Baynes had two prior incidents on his record. In 1969, as a
juvenile, he was charged with burglary. He received a six-month
continuance and paid $7.50 in restitution. In 1979, Baynes was
convicted of disorderly conduct, as a result of a commotion in a
movie theater, during which he had allegedly helped a friend, and
was fined $25.
The Director of the PTI program accepted Baynes's
application for admission. Further, the head of the narcotics
team that arrested Baynes did not object to Baynes's diversion.
The prosecutor, however, advised Baynes in an April 27, 1995,
memorandum that his PTI application was rejected because of that
prosecutor's acknowledged policy to deny PTI admission to
defendants charged with "school zone offenses," including those
involving possession of CDS for personal use.
On June 23, 1995, a hearing was held before the trial court
for reconsideration of the prosecutor's decision. In reversing
the prosecutor's decision and referring the matter back to the
prosecutor for reconsideration, the court observed that "the
prosecutor [had] fail[ed] to consider all the relevant factors"
in this case. The decision to refer the matter back to the
prosecutor follows our past decisions, finding remand to the
prosecutor useful where "`the prosecutorial decision was based
upon a consideration of inappropriate factors or not premised
upon a consideration of all relevant factors' [or] where the
denial resulted from an incorrect evaluation of relevant
factors." See, e.g., State v. Dalglish,
86 N.J. 503, 509-10
(1981) (quoting State v. Bender,
80 N.J. 84, 94 (l979)).
In a letter to the trial court, the prosecutor advised the
court that he had reviewed all the information again and
continued to oppose defendant's diversion into PTI. After a
second hearing appealing that decision, the trial court ordered
Baynes's admission into the PTI program over the prosecutor's
objection, stating that
[e]ven giving the prosecutor's decision in this case the
`enhanced deference' to which it is entitled, the decision
constitutes a gross and patent abuse of discretion because
it is so clearly unreasonable that it shocks the judicial
conscience, subverts the goals of PTI, and constitutes a
clear error of judgment because it could not have reasonably
been made upon a fair weighing of all relevant factors.
[State v. Baynes,
287 N.J. Super. 467, 475 (Law Div. 1995)
(citations omitted).]
On appeal to the Appellate Division, the State argued that the prosecutor's decision was based on a consideration of all relevant factors and did not amount to a clear error in judgment. The Appellate Division upheld the trial court's decision, concluding "that the State's objection to defendant's admission into pre-trial [sic] intervention was in this case an arbitrary
exercise of prosecutorial authority." State v. Baynes,
287 N.J.
Super. 336 (App. Div. 1996).
We granted the State's petition for certification.
145 N.J. 373 (l996).See footnote 1
Earlier this term, we reviewed the history and structure of PTI in State v. Wallace, 146 N.J. 576 (1996). PTI is "a diversionary program through which certain offenders are able to avoid criminal prosecution by receiving early rehabilitative services expected to deter future criminal behavior." State v. Nwobu, 139 N.J. 236, 240 (1995). PTI was initially established by Rule 3:28 in 1970, "as authority for the vocational-service pretrial intervention program operated by the Newark Defendants Employment Project." Pressler, Current N.J. Court Rules, comment 1 on R. 3:28 (1997) (Pressler). By October 1976, the Court had approved programs for twelve counties. Ibid. In 1979, the Legislature authorized a state-wide PTI program as part of the Criminal Code of Justice. Ibid.; see N.J.S.A. 2C:43-12 to -22. "The Code provisions generally mirrored the procedures and guidelines previously established under Rule 3:28." Nwobu, supra, 139 N.J. at 245.
Admission into PTI is based on a recommendation by the criminal division manager, as Director of the PTI Program, with
the consent of the prosecutor. R. 3:28(c)(1). The Court has
provided criteria for making PTI decisions in its Guidelines for
Operation of Pretrial Intervention (Guidelines).
Guidelines 1, 2, 3, and 8 are particularly relevant to this
case. Guideline 1 sets forth the purposes of PTI:
(1) to enable defendants to avoid ordinary prosecution by
receiving early rehabilitative services expected to deter
future criminal behavior; (2) to provide defendants who
might be harmed by the imposition of criminal sanctions with
an alternative to prosecution expected to deter criminal
conduct; (3) to avoid burdensome prosecutions for
"victimless" offenses; (4) to relieve overburdened criminal
calendars so that resources can be expended on more serious
criminal matters; and (5) to deter future criminal behavior
of PTI participants.
Guideline 2 provides that "[a]ny defendant accused of crime
shall be eligible for admission into a PTI program." Pressler,
supra, Guideline 2 at 890. Thus, the Court has stated that "PTI
decisions are `primarily individualistic in nature' and a
prosecutor must consider an individual defendant's features that
bear on his or her amenability to rehabilitation." Nwobu, supra,
139 N.J. at 225 (quoting State v. Sutton,
80 N.J. 110, 119
(1979)).
Guideline 3 refers to and supplements N.J.S.A. 2C:43-12(e),
which presents seventeen criteria that prosecutors and criminal
division managers are to consider in formulating their PTI
recommendation. Wallace, supra, 146 N.J. at 585-86. Guideline
3(i) clarifies how "the nature of the offense" is to be used in
assessing a defendant's PTI eligibility. That guideline explains
that although all defendants are eligible for enrollment in a PTI
program, the nature of the crime is only one factor to be
considered. Pressler, supra, Guideline 3 at 891-92. Moreover,
Guideline 3(i) states that there is a presumption against
acceptance into a program when "the crime was (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." Ibid. A presumption against
acceptance into a PTI program also exists when the defendant is
"charged with a first or second degree offense or sale or
dispensing of Schedule I or II narcotic drugs . . . [and is] not
drug dependent." Ibid.
Finally, Guideline 8 requires a judge, prosecutor, or
criminal division manager, making a PTI decision, to provide the
defendant with a statement of reasons justifying the decision, as
well as demonstrating that all of the facts have been considered.
Pressler, supra, Guideline 8 at 897-98. That statement "may not
simply `parrot' the language of relevant statutes, rules, and
guidelines." Nwobu, supra, 139 N.J. at 249 (citing Sutton,
supra, 80 N.J. at 117). Additionally, the statement cannot be
vague; it must be sufficiently specific to provide the defendant
with an opportunity to demonstrate that the reasons are
unfounded. Ibid. (citing State v. Maddocks,
80 N.J. 98, 109
(1979)).
The decision to divert a defendant from criminal prosecution
implicates both judicial and prosecutorial functions. State v.
DeMarco,
107 N.J. 562, 566 (1987). It "is an exercise of quasi-judicial power." State v. Leonardis,
71 N.J. 85, 115 (1976)
(Leonardis I). Judicial review of the prosecutor's PTI decision
is strictly limited, but necessary because "PTI involves far more
than merely an exercise of the charging function." State v.
Leonardis, supra,
73 N.J. 360, 379 (1977) (Leonardis II).
"It is one thing not to charge and let the accused go totally
free, but it may be quite another to withhold a charge, and hence
not to invoke the jurisdiction of the court system, on condition
that an uncharged, untried, unconvicted person submit to a
correctional program." Ibid. (quoting Pretrial Intervention
Legal Issues: A Guide to Policy Development 12 n.4 (1974)).
Earlier this term, we reaffirmed our expectation that "a
prosecutor's decision to reject a PTI applicant `will rarely be
overturned.'" Wallace, supra, 146 N.J. at 585 (quoting Leonardis
II, supra, 73 N.J. at 380). "[A prosecutor's] decision is to be
afforded great deference. In fact, the level of deference which
is required is so high that it has been categorized as `enhanced
deference' or `extra deference.'" Nwobu, supra, 139 N.J. at 246
(quoting State v. Kraft,
265 N.J. Super. 106, 111 (1993)).
Absent evidence to the contrary, a reviewing court must assume
that all relevant factors were considered by the prosecutor's
office. Id. at 249 (citing Dalglish, supra, 86 N.J. at 509).
That presumption makes it difficult to reverse a prosecutor's
decision. Ibid.
A reviewing court may order a defendant into PTI over the
prosecutor's objection, only if the 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.'" Wallace, supra, 146 N.J. at 582 (citation
omitted). In Bender, supra, the Court defined 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.
The third prong of the abuse of discretion test, that the prosecutor made a clear error of judgment, is satisfied where the prosecutor's decision "is one that is `based on appropriate factors and rationally explained,' but `is contrary to the predominant views of others responsible for the administration of criminal justice.'" Nwobu, supra, 139 N.J. at 253 (quoting Dalglish, supra, 86 N.J. at 510).
In this case, the prosecutor's rejection of Baynes's PTI application falls under categories (a) and (c), as set forth in Bender. Bender, supra, 80 N.J. at 93. First, the prosecutor's rejection in this case was not based on all of the relevant factors. See, e.g., ibid.; Pressler, supra, Guideline 2 at 890. After the initial remand for reconsideration by the trial court, the prosecutor claimed to have considered all of the relevant factors. We do not doubt his veracity, in the sense that he re-read the application and the police report. He could not, however, have considered all relevant factors, because the per se rule under which he made his decision had effectively denied Baynes's application from the moment Baynes was charged with possession of CDS in a school zone.
By their nature, per se rules require prosecutors to disregard relevant factors, contrary to the guidelines, and when a defendant demonstrates that a prosecutor has relied on such a rule, the presumption that the prosecutor has considered all relevant facts is overcome. See, e.g., Wallace, supra, 146 N.J. at 584 ("We presume that a prosecutor considered all relevant factors, absent a demonstration by the defendant to the contrary."). As a result, the June 23, 1995, memorandum denying Baynes's application was merely an impermissible "parrot-like"
recitation of the language of relevant statutes, rules, and
guidelines. See, e.g., Nwobu, supra, 139 N.J. at 249; Sutton,
supra, 80 N.J. at 117.
The State correctly points out that prosecutors may rely on
the nature of the offense, in "appropriate circumstances," as the
sole basis for making PTI decisions. See, e.g., Leonardis II,
supra, 73 N.J. at 382. Although caselaw supports the proposition
that certain offensive conduct can outweigh all other factors
considered, no court has indicated that possession of CDS for
personal use is an "appropriate circumstance" that alone can
justify denying PTI.
Where courts have found a prosecutor's reliance on the
nature of the offense charged to be an appropriate basis for a
PTI decision, the crime was of a more serious nature than
possession of CDS for personal use. In Wallace, supra, for
example, we held that the assistant prosecutor's denial of the
defendant's PTI application did not amount to a clear error of
judgment. Wallace had entered his former girlfriend's house with
a loaded gun and threatened to kill her. He was charged with
second-degree possession of a firearm for an unlawful purpose and
third-degree making of terroristic threats. 146 N.J. at 579-80.
In supporting her decision, "the prosecutor primarily relied on a
prosecutorial guideline that discourages PTI for those defendants
charged with either first or second degree offenses." Id. at 588
(emphasis added) (citing R. 3:28, Guideline 3(i)). In addition,
the prosecutor relied on Guideline 3(i)(3), recommending that
individuals charged with acts committed with violence or the
threat of violence be denied PTI. Ibid.
Likewise, in State v. Barrett,
157 N.J. Super. 96 (App. Div.
1978), the Appellate Division found that that defendant's
behavior could reasonably have been considered to be part of an
organized criminal activity and, as such, "provid[ed] an
acceptable basis for finding him disqualified for diversionary
treatment." 157 N.J. Super. at 102. In reaching this
conclusion, the court noted that under Guideline 3(i) there is a
presumption against admission into PTI for defendants charged
with crimes considered to be a part of organized criminal
activity. Ibid.
In Kraft, supra, the Appellate Division was again called
upon to determine whether the prosecutor correctly based his
refusal to divert the defendant into PTI on the nature of the
offense charged. In that case the defendant had been indicted
for third-degree burglary and fourth-degree taking, and the
prosecutor denied diversion due to the seriousness of the offense
and the need to deter other residential burglaries. The
Appellate Division agreed: "It cannot reasonably be disputed that
the burglary of a residence is a serious offense. Nor can it be
earnestly debated that such an offense accounts for a legitimate
source of fear and anxiety on the part of the homeowners." 265
N.J. Super. at 116.
Because burglary of a home is similar to robbery, in the
sense that it raises the public's concern regarding the threat of
personal safety, it is a crime that implicates Guideline 3(i).
Id. at 117 (finding that under circumstances a significant
potential for violence existed). Moreover, Guideline 3(j),
stating that the impact of diversion on the prosecution of
codefendants must be considered, was implicated in Kraft. Id. at
118. Thus, the court held that the case presented "appropriate
circumstances" for the prosecutor's refusal to divert the
defendant into PTI based solely on the nature of the offense
charged. Id. at 115.
Finally, in State v. Litton,
155 N.J. Super. 207 (1977), the
prosecutor denied PTI solely on the basis that the defendant was
charged with a "sex crime." The Appellate Division "regard[ed]
[Litton] as being a case where it was `appropriate' for the
prosecutor to base his rejection on the nature of the offense."
155 N.J. Super. at 216.
In their collective intent, as supplemented by the
prosecutor's statements before the trial court, his reasons
amount to an expression of concern that this offense, based
on the expected evidence, was not free of the threat of
violence. As he said, "hardly anything is known about sex
offense crimes." . . . [W]e are unable to say that this
offense did not arise from distinctly assaultive
motivations. Guideline 3(i)(3) recommends rejection of the
application under those circumstances.
Under the caselaw of this jurisdiction, it is, therefore, appropriate for prosecutors to base their rejections solely on
the nature of an offense for which the Guidelines express a
presumption against admission (as in Wallace, Barrett, Litton,
and Kraft). Our prior opinions indicate that possession of CDS
for personal consumption does not fall into either of these
categories.
In Bender, supra, the "defendant's rejection was premised
wholly upon [the prosecutor's] perception of the nature of the
offense charged in relation to the Guidelines. In the
prosecutor's opinion, defendant's theft of cocaine was both `[1]
part of a continuing criminal business or enterprise; [and] . . .
[2] a breach of the public trust . . . .'" 80 N.J. at 94 (citing
Guideline 3(i)(2), (4)).
In evaluating the defendant-pharmacist's diversion of
cocaine from his employer for his personal use, the Bender Court
stated that the crimes engaged in by the defendant could not be
characterized as a continuing criminal business. Id. at 95. The
Court asserted that
[o]ne of the main purposes of PTI is "[t]o provide a
mechanism for permitting the least burdensome form of
prosecution possible for defendants charged with
`victimless' offenses." Clearly, this purpose would be
entirely frustrated were persons who unlawfully consume
controlled dangerous substances over a prolonged time span
to be deemed engaged in a continuing criminal enterprise and
hence `generally' to be rejected pursuant to Guideline
3(i)(2). Although in the present case defendant's crime was
not truly `victimless' -- inasmuch as his cocaine diversions
harmed his employer as well as himself -- the underlying
rationale of Guideline 1(c) is nevertheless applicable.
Moreover, the Court rejected "the State's contention that
defendant's crime constituted a `breach of the public trust.'"
Ibid. Although, as a pharmacist, the defendant was
entrust[ed] . . . with the dispensing of controlled
dangerous substances in order that the health and welfare of
the public not be undermined through indiscriminate and
unsupervised consumption of drugs[,] . . . [d]efendant's
cocaine diversions were not intended to nor did they cause
injury to the public in general or to any particular segment
thereof. The cocaine was personally consumed, not
distributed to third parties. Only defendant, himself, and
his immediate employer were victimized."
In addition to satisfying the first category of abuse of discretion set forth in Bender, the prosecutor's veto also fulfills the third, i.e. it was a "clear error in judgment." A prosecutor will be found to have made a "clear error in judgment," when the decision was premised on appropriate factors and rationally explained but is contrary to the predominate views of others responsible for the administration of justice. See, e.g., Nwobu, supra, 139 N.J. at 253. Although a reviewing court cannot substitute its own judgment for that of the prosecutor, others responsible for the administration of justice in New Jersey hold contrary views of how first-time offenders charged with possession of drugs for personal use should, as a class, be treated.
The 1987 Comprehensive Drug Reform Act simply does not indicate the intent prescribed to it by the Monmouth County
prosecutor. The Act's preamble sets forth the policy of the
State with respect to drug offenders and the purposes for which
the Act was promulgated:
It is the intention of the Legislature to provide for the
strict punishment, deterrence and incapacitation of the most
culpable and dangerous drug offenders, and to facilitate
where feasible the rehabilitation of drug dependent persons
so as ultimately to reduce the demand for illegal controlled
dangerous substances and the incidence of drug-related
crime.
The Legislature further explains that
[i]t is also the policy of this State to afford special protection to children from the perils of drug trafficking, to ensure that all schools and areas adjacent to schools are kept free from drug distribution activities, and to provide especially stern punishment for those drug offenders who operate on or near schools and school buses, who distribute to juveniles, or who employ juveniles in a drug distribution scheme.
In restructuring drug offenses, in light of these policies, the Legislature created a new crime, N.J.S.A. 2C:35-7, covering possession with intent to distribute or actual distribution of drugs in a school zone. Under that section, proof that the offensive conduct occurred within a school zone is an element of the offense, and if the defendant is found guilty a jail term must be imposed as well as a minimum term. Cannel, New Jersey Criminal Code Annotated, comments 2, 6 on N.J.S.A. 2C:35-7 (1996). The penalty structure for this type of offense is similar to that for second-degree offenses for which admission to PTI is presumptively unavailable.
Possession of CDS in a school zone, on the other hand, is
not a separate crime. Rather, it is a sentencing factor that
requires the court to impose one hundred hours of community
service as a condition of probation if the defendant is not given
a prison term. Cannel, supra, comments 1 on N.J.S.A. 2C:35-10.
Despite the wording of Count Two of the indictment, Baynes is not
charged with two counts of possession of CDS for personal use
(i.e., one for possession in general and a second for possession
in a school zone). Instead, he is charged with one count of
possession contrary to N.J.S.A. 2C:35-10a, which carries an
enhanced sentence because the offense occurred in a school zone.
The Monmouth County Prosecutor's Office is the only
prosecutor's office in the State to have adopted the policy that
a simple possession offense makes a defendant ineligible for
admission into PTI. Nor has the Attorney General adopted such a
policy. See Attorney General's Supplemental Directive For
Prosecuting Cases Under the Comprehensive Drug Reform Act (Jan.
6, l997) [hereinafter Directive]. Specifically, Section 6(c) of
the Directive prohibits a prosecutor from consenting to PTI for a
person charged with simple possession of drugs within 1,000 feet
of school property unless, as a condition of PTI, the defendant
serves not less than one hundred hours of community service and
pays a Drug Enforcement and Demand Reduction penalty. Id. at 5.
Because it imposes those specific preconditions on PTI admission
for applicants charged with simple possession in a school-zone,
the Directive embodies a conscious policy choice by the Attorney
General: allow PTI candidates charged with simple possession in
a school zone into PTI, but only if they satisfy the mandatory
non-incarcerative aspects of the program. Clearly, that policy
is inconsistent with the Monmouth County prosecutor's policy of
excluding from PTI all defendants charged with simple possession
of drugs in a school zone.
In fact, early diversion programs were begun in many
jurisdictions in order to cope with both the non-addict first
offender and the drug-dependent defendant. See, e.g., John P.
Bellassai & Phyllis N. Segal, Note, Addict Diversion: An
Alternative Approach for the Criminal Justice System,
60 Geo. L.
Rev. 667 (1972) (cited in Leonardis I, supra, 71 N.J. at 96-97,
for proposition that diversion serves to dispose quickly and
inexpensively of cases that are more effectively handled without
full criminal disposition, permitting courts to focus their
resources where deterrence and rehabilitation can best be
achieved by ordinary criminal processing).
As a first-time offender charged with a non-violent, third-degree offense, Baynes is eligible for diversion into the PTI program. By abandoning his discretion in favor of a per se rule, the prosecutor made a decision unsupported by the legislative purpose behind both the PTI Statute and the Comprehensive Drug Reform Act, by the Guidelines, and by caselaw. Thus, the
rejection of Baynes's PTI application was an abuse of discretion
under two of the three categories of the Bender test.
An abuse of discretion in a PTI case is elevated to a patent
and gross abuse of discretion when the "prosecutorial error . . .
will clearly subvert the goals underlying Pretrial Intervention."
Bender, supra, 80 N.J. at 93. As discussed in the trial court's
opinion, Baynes's admission into PTI fulfills all five of its
purposes. Baynes, supra 287 N.J. Super. at 476-77.
Additionally, the Legislature made all defendants initially
eligible for PTI, and the per se rule effectively eliminates a
whole category of defendants from consideration by the
prosecutor. See Pressler, supra, Guideline 2 at 890; Leonardis
I, supra, 71 N.J. at 112 (holding that Bergen County criteria for
admission into PTI failed to conform with rehabilitative purpose
of Rule 3:28, because it precluded from consideration for PTI all
defendants charged with "heinous offenses," including sale of
CDS). Baynes's rejection, thus, was a patent and gross abuse of
discretion. Accordingly, the trial court correctly ordered
Baynes's admission into the program.
Prosecutorial discretion in reviewing PTI applications does not permit exclusion of PTI applicants solely because they are subject to the "school zone" sentencing enhancement. Possession of CDS for personal use within 1,000 feet of a school cannot in
every instance be an "appropriate circumstance" to rely solely on
the nature of the offense in rejecting a PTI application.
In reaching our decision, we need not discuss the
evidentiary argument raised by the State for the first time
before this Court. The evidence under dispute is not needed to
resolve the legality of the policy. Additionally, nothing in the
opinions below suggests that this evidence formed the basis for
the lower courts' decisions.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-63 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WALLACE BAYNES,
Defendant-Respondent.
DECIDED April 1, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1The Association of Criminal Defense Lawyers of New Jersey was granted leave to participate as amicus curiae.