State v. Maddocks ( 1978 )

The opinion of the court was delivered by

Bilder, J. S. C.

(temporarily assigned). This is an appeal on leave granted from a denial of enrollment in the Monmouth County Pretrial Intervention Program.

Defendant Jon Maddocks is charged with breaking and entering with intent to steal. More specifically, it is alleged that in the early morning hours of June 20, 1977 he broke into a luncheonette on the Belmar boardwalk and stole 11 packages of cigarettes, two bags of popcorn, a candy bar, and approximately $3 which was taken from the cash register. He was arrested moments later in an intoxicated condition. Application for enrollment in the Monmouth County Pretrial Intervention Program was duly made and he was accepted, subject to the consent of the Monmouth County Prosecutor, which was denied.

Defendant is 18 years old. The alleged offense occurred approximately one month after his 18th birthday. He has no prior criminal record.¹ He is employed and apparently living at home with his parents.

In accepting defendant into the Pretrial Intervention Program, the project director noted defendant’s possible problem with alcohol and proposed an alcohol evaluation at the Jersey Shore Mental Health Clinic with treatment to follow as indicated. He also noted that defendant had left high school before graduation and caused the defendant to enroll at the Asbury Park Learning Center for the completion of his education.

The prosecutor has objected to the defendant’s admission into the Program for two reasons. First, defendant has failed to furnish the name of the individual who participated with him in the breaking and entering, and second, “contact with the Bolmar Police indicates that Maddocks had been on the periphey [sic] of other criminal [sic] investigations.”

We recognize the heavy burden which defendant bears in overcoming the propriety of the prosecutor’s actions. He must show “compelling reasons justifying his admission and establishing that a decision against enrollment would be arbitrary and unreasonable”. State v. Litton, 155 N. J. Super. 207, 218 (App. Div. 1977). It is appropriate, therefore, to examine the prosecutor’s reasons in the context of that heavy burden.

As noted, the prosecutor has expressed an understandable concern about the failure of defendant to cooperate with respect to the identity of his accomplice. Defendant, by his attorney, has made clear his willingness to furnish the name of his accomplice and, indeed, to testify against him if he is insulated by admission into the Pretrial Intervention Program from the use of that accomplice’s testimony in a trial against him. His position, taken on the advice of counsel, was, under the specific circumstances here, a reasonable one and should not have affected his admission into the Program.

The second reason given by the prosecutor amounted to no more than guilt by association with respect to unknown people and unknown acts of an unspecified nature.

At the hearing on defendant’s appeal the prosecutor expanded his reasons with the following statement to the trial court:

The denial was based upon my judgment that because of the nature of the offense, the conduct of this individual after his arrest in that he didn’t fully cooperate with the police, and the fact that I was informed by the officers of information surrendering [sic] other possible criminal conduct activity of this individual, that he doesn’t have an attitude that is going to be amenable to the rehabilitative facilities that we have in the pretrial intervention program.

The reasons given by the prosecutor in court are essentially the same as contained in his disapproval, with one added element —■ the nature of the offense. This is a ease of an 18-year-old drunk -who has broken into a luncheonette and stolen, as noted, eleven packages of cigarettes, two bags of popcorn, a candy bar and $3. Given a past good record, present employment, a demonstration of a willingness to pursue the rehabilitative suggestions of the Pretrial Intervention Program and the evaluation of the Pretrial Intervention Program director, it is difficult to characterize “the nature of the offense” as anything more than youthful folly.

As noted in State v. Litton, the Chief Justice (in a speech to the Legislature) has said that “the prosecutor has virtually untrammelled authority, essentially a veto power — except in cases of arbitrary abuse.” Id. at 212-213. Where such abuse exists, the courts have the power to correct it. State v. Leonardis, 73 N. J. 360, 376 (1977) (Leopardis II). We find the instant case to be one of arbitrary abuse, of gross and patent abuse, and remand for enrollment in the Pretrial Intervention Program, subject of course to the condition that the defendant live up to his promise to furnish the name of his accomplice and cooperate with the authorities.

The order denying admission into the Pretrial Intervention Program is reversed and the matter remanded for further proceedings in accordance with this opinion.

1 Defendant was at one time charged with larceny of a motorcycle. This juvenile charge was continued and never acted upon. As a matter of due process, defendant must be considered to have been not guilty of that charge. See In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1969).