State v. DeMarco

527 A.2d 417, 107 N.J. 562, 1987 N.J. LEXIS 334

• Court: Supreme Court of New Jersey
• Decided: July 1, 1987
• Status: Published

Opinions

The opinion of the Court was delivered by

POLLOCK, J.

This appeal raises the question whether it is permissible for a prosecutor to condition admission into the Pre-Trial Intervention Program (PTI) on the defendant’s resignation from his employment as a police officer. The director of the program recommended the admission of defendant, a member of the Newark Police Department, into the program, but the program coordinator, an assistant county prosecutor, said he would consent only if defendant resigned from his position. The Law Division, however, ordered defendant’s admission into the program. In an unreported decision, the Appellate Division reversed, and we granted defendant’s motion for leave to appeal, 103 N.J. 468 (1986). We modify and affirm the judgment of the Appellate Division.

-I-

In summarizing the relevant facts, we draw upon the testimony before the Sussex County Grand Jury, which is part of the record before us. Around 1:30 a.m. on Sunday, June 17, 1984, defendant and his 27-year old son were watching television in their home on Paulinskill Lake, south of the intersection of Kill Drive and Ridge Road, Sussex County, when they heard noises that sounded like gunshots. Because mailboxes in the area had recently been destroyed by vandals, defendant and his son went to investigate. They turned on a spotlight in the front of their home and observed a light-colored car leaving the scene. Taking his badge and placing his service revolver in his shoulder holster, defendant, accompanied by his son, entered his car and unsuccessfully tried to overtake the departing vehicle. While pursuing that vehicle, defendant observed damage to numerous mailboxes in the area. After losing sight of the departing vehicle, defendant came upon two cars parked on Ridge Road and observed an argument between the occupants of one car, Thomas J. Byrnes and Timothy P. Moore, two young men in their early twenties, and a third person, William Hulit, whom defendant recognized to be a neighbor. According to defendant, he identified himself as a police officer when he exited from his car, wearing his service revolver and carrying his nightstick in his right hand and his badge in his left hand.

Mr. Hulit explained his presence at the scene by stating that while walking his dog in his front yard, he had heard banging ' and observed people breaking mailboxes with a stick. He noticed a light colored car, with a license plate bearing the numerals “300.” Hulit pursued that car in his own automobile, until it drove out of sight. On his return home, Hulit observed the Moore vehicle, a light-colored Volvo with the numerals “300” on its license plate, which he followed until it stopped on Ridge Road. Hulit accused Moore and Byrnes of destroying the mailboxes, which they denied.

Moore and Byrnes said they had spent the evening at a beer party, a fact that is consistent with defendant’s observation that they smelled of beer. According to defendant, as he approached the two young men, he announced “I’m a police officer,” whereupon Byrnes ran into the surrounding woods. Defendant testified further that Moore approached him with upraised arms and grabbed defendant’s right arm. In self-defense, defendant struck Moore two or three times on the arms with his nightstick. .As Moore fell, he grabbed defendant’s nightstick, whereupon defendant kicked him in the chest.

The testimony of Moore and Byrnes differed from that of defendant. Moore testified that when defendant exited from his car, he ordered them against their car “or he’d fill us full of lead.” According to Moore, defendant swung the nightstick at Byrnes, who ran away. Then, without warning, defendant turned and struck Moore on the head. Moore fell to the ground, and defendant hit him twice more with the nightstick, once on the head and once on the back. Both defendant and Byrnes called the State Police, who investigated at the scene. Moore was taken to the hospital, where several stitches were taken in his scalp, and where he was confined overnight.

Moore filed charges against defendant for assault, N.J.S.A. 2C:12-1, and defendant filed charges against Moore for assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), and for resisting arrest, N.J.S.A. 2C:29-2. The Sussex County Grand Jury did not return an indictment against Moore, but indicted defendant for aggravated assault with a deadly weapon. N.J.S.A. 2C:12-lb(3).

In recommending defendant for admission to the PTI program, the director stated:

When interviewed, the defendant made a favorable impression and would appear to fit the various criteria enumerated in N.J.S.A. 2C:43-12(e) and the various guidelines. He has had one arrest, that charge having been dismissed. He has been steadily employed as a Lt. by the Newark Police Department for the past 26 years. Mr. DeMarco openly admitted his involvement in this offense and stated the actions he took were necessary for self-protection. N.J.S.A. 2C:43-12a states, in part, that supervisory treatment should ordinarily be limited to persons who have not previously been convicted of any criminal offense when supervisory treatment would (b) provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions. This is clearly the situation in Mr. DeMarco’s ease where a conviction for the alleged offense could very well jeopardize his career of 26 years with the Newark Police Department.

In view of the above, it is recommended that Vincent DeMarco, Sr. be enrolled in the Sussex County Pretrial Intervention Program.

Initially, the prosecutor relied on two grounds to support his conclusion that defendant should be denied admission to PTI: the violent nature of the offense and defendant’s continued attempt to justify striking Mr. Moore as an act of self-defense, which the prosecutor contends demonstrates that defendant cannot be rehabilitated. Thereafter the prosecutor added a third ground, that the offense constitutes a breach of the public trust reposed in defendant as a police officer. The prosecutor stated he “would join in Mr. DeMarco’s participation in the Pretrial Program only if he resigned his post as a Lieutenant in the City of Newark Police Department.”

The Law Division disagreed and ruled that the “requirement that the defendant quit his job * * * under the circumstances of this particular case [was] not an appropriate consideration” and that the prosecutor was “wide of the mark in terms of PTI goals.” Moved by considerations of “fundamental fairness and justice,” the Law Division initially remanded the matter to the prosecutor and subsequently ordered defendant’s enrollment into PTI. The Appellate Division reversed, finding that the prosecutor had not exhibited a patent and gross abuse of discretion.

-II-

From the inception of PTI, we have recognized that the decision to divert a defendant from criminal prosecution implicates both judicial and prosecutorial functions. State v. Leonards, 71 N.J. 85 (1976) (Leonards I). Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI. State v. Dalglish, 86 N.J. 503, 513-14 n. 1 (1981). As a general rule, a trial court may not order admission over a prosecutor’s objection unless the defendant can establish clearly and convincingly that the objection constitutes a “patent and gross abuse of discretion.” Id. at 506; State v. Leonardis, 73 N.J. 360, 382 (1977) (Leonardis II). Respect for the prosecutor’s role may occasionally result in our recognition of a decision with which we disagree. Judicial review is “available to check only the most egregious examples of injustice and unfairness.” Leonardis II, supra, 73 N.J. at 384. Our scrutiny is limited to reviewing the reasons given by the prosecutor for his or her decision. State v. Dalglish, supra, 86 N.J. at 509. It is not sufficient to reverse that we find a decision to be harsh. For a court to reverse a prosecutor’s decision, the defendant must “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. Abuse of prosecutorial discretion results from a consideration of irrelevant or inappropriate factors, or from a clear error in judgment. State v. Bender, 80 N.J. 84, 93 (1979). The prosecutor’s error must be one that will “clearly subvert the goals underlying Pretrial Intervention.” Id. Whether the prosecutor has based his or her decision on an appropriate factor, however, is akin to a question of law, a matter on which an appellate court may supplant the prosecutor’s decision. State v. Maddocks, 80 N.J. 98, 104-05 (1979). When a prosecutor fails to consider all relevant factors or considers inappropriate factors, a court may clarify the appropriate factors and remand the matter for further consideration. Id. at 105. If the prosecutor’s abuse arises from a clear error of judgment, a court may order that a defendant be admitted into the program.

Included in the purposes of PTI are the deterrence of future criminal behavior through the receipt of early rehabilitative services and the provision of an alternative to prosecution for a qualified defendant. Another purpose is “[t]o assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems.” R. 3:28, Guideline 1.

We have previously discussed the nature and history of PTI, Leonardis I, supra, 71 N.J. 85, and the conformity of the pre-trial intervention provisions of Rule 3:28 and the Penal Code, State v. Collins, 90 N.J. 449 (1982). Guideline 3, promulgated under Rule 3:28, mandates that “consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e),” which include “the nature of the offense,” N.J.S.A. 2C:43-12(e)(1), and more particularly whether the offense “is of an assaultive or violent nature * * N.J.S.A. 2C:43-12(e)(10). In addition, Guideline 3(i) makes clear that the nature of the offense may be relevant to determining eligibility for PTI. It provides in part:

Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was * * * (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant’s crime, the defendant’s application should generally be rejected.

Obviously, the offense, if proven, is violent, and we shall not dwell further upon that point. Nor shall we try to resolve the controverted factual issue whether defendant’s use of his nightstick was justified. Suffice it to state, in light of Moore’s testimony before the Grand Jury and the subsequent indictment of defendant for aggravated assault, that the prosecutor could conclude for PTI purposes that the defendant did not act in self-defense. The final consideration, whether the offense constitutes a breach of public trust and, if so, whether the prosecutor may condition defendant’s entry into PTI on his resignation as a police officer, requires more extensive discussion.

We have held that a pharmacist who stole cocaine from his employer for his personal use and not for profit had not committed a breach of the public trust. State v. Bender, supra, 80 N.J. 84. More recently, we have held that a defendant’s status as a public school teacher was relevant to, but not necessarily dispositive of, his request for a conditional discharge of his plea to the possession of less than twenty-five grams of marijuana. State v. Humphreys, 89 N.J. 4 (1982). In another case, we held that a police officer who pleaded guilty to the possession of heroin did not pose “a danger to the community.” State v. Alston, 71 N.J. 1, 7 (1976). Humphreys and Alston involved applications by first-time drug offenders for a “conditional discharge,” which, like admission to PTI, provides for the dismissal of criminal charges. See State v. Hum-phreys, supra, 89 N.J. at 9-11. In Bender, on the other hand, the defendant unsuccessfully applied for admission to PTI. Consistent with the great deference we accord to prosecutors’ decisions, we have reversed a lower court decision to deny admission to PTI, to which the prosecutor had consented, in a case involving two public school teachers who bought stolen lumber from students. State v. Hermann, 80 N.J. 122 (1979). From the foregoing cases, we glean the principle that defendant’s employment as a police officer does not necessarily preclude his admission into PTI, but that it is one factor to be considered in judging him as a whole person.

Defendant’s employment as a police officer is particularly relevant because the offense involves the misuse of authority and the commission of violence against a member of the public. The prosecutor’s reliance on defendant’s employment as a police officer does not subvert the goals underlying PTI and does not constitute a “patent and gross” abuse of discretion. Likewise, the prosecutor is justified in viewing defendant’s conduct as a breach of the public trust. A police officer is under a duty to uphold the law and maintain public safety. An unprovoked attack with a nightstick on a member of the public may properly be viewed as a breach of that duty. Nonetheless, the prosecutor was not compelled to deny defendant admission into PTI.

In that regard, defendant’s counsel, in response to an inquiry at oral argument, has written a letter stating that the Internal Affairs Bureau of the Newark Police Department has established a procedure for disciplining officers for violations of department rules and regulations. As set forth in the letter,

Particular attention is paid to the type of offense charged and any identifiable evidence or reason contributing to the belief that the officer’s action was premeditated, completely unjustified by the circumstances, or is of an ongoing nature or has the potential to be of an ongoing nature or the posing of danger to the general public.

In 1985, 137 officers were charged by our Internal Affairs Bureau for various violations of the departmental rules and regulations; 71 were found guilty as charged, 20 were not guilty, 18 had the charges dismissed based upon evidence produced in their defense and 5 decisions are pending. As a result of our disciplinary actions, 5 officers were dismissed from the department, 3 resigned with charges pending, 603 days of suspension were given, 11 were given official reprimands and 4 were fined for negligent loss of property. Officers who are convicted of indictable offenses are dismissed from the department.

This unfortunate incident appears as an aberration on an otherwise unblemished record of 27 years of service as a police officer. The circumstances surrounding the evening’s events lend credibility to defendant’s initial response. Just a short time before the incident, in the dead of night, defendant’s neighbor, Hulit, had observed vandals who had been destroying mailboxes drive down Ridge Road, a country road, in a light-colored car with a license plate bearing the numerals “300.” Defendant, too, had heard banging noises and had seen a light-colored car drive away on Ridge Road. Based on his own observations and those related by Hulit, which included the similarity between the victim’s car and that which Hulit had observed, defendant could reasonably have suspected that Moore and Byrnes were vandals.

The problem, however, is not the reasonableness of that suspicion, but defendant’s reaction to it. If Moore and Byrnes are to be believed, as the Grand Jury so found them, defendant went berserk. Although he now argues he was acting as a private citizen, defendant was literally carrying his badge of office together with his service revolver and nightstick, which he used to initiate an unprovoked attack on Moore. Based on those facts, it was not a “patent and gross abuse of discretion” for the prosecutor to conclude that defendant, even if not on duty, was acting under the color of his office. Within the bounds of his discretion, the prosecutor could have concluded that defendant’s offense arose out of his employment as a police officer, that it constituted a breach of the public trust, and that, as a condition to defendant’s entry into PTI, defendant must resign from his position. Such a conclusion could be justified to prevent the commission of another act of violénce by defendant while acting officially or under the color of his office.

We do not hold, or even intimate, that defendant's position as a police lieutenant compels the prosecutor to deny defendant admission into PTI. Like the dissent, we accept the prosecutor’s argument that defendant’s offense may be viewed as a breach of the public trust. We also accept the prosecutor’s contention that termination of defendant’s employment is defensible as a means of preventing a subsequent similar offense, a contention that the dissent implicitly rejects.

Our disagreement with the dissent arises because of its contention that the prosecutor may not condition defendant’s admission into PTI upon his resignation. We are unpersuaded by the dissent’s distinction between defendant’s continued employment as a “condition” and as a “factor” in reviewing the prosecutor’s decision concerning defendant’s suitability as a candidate for PTI. A fact concerning a defendant may be viewed either as a “condition” or as a “factor” or as both. In State v. Maddocks, supra, 80 N.J. at 106-08, we ruled that the prosecutor could not condition defendant’s admission into PTI upon his identification of an alleged accomplice. Nonetheless, the prosecutor could consider defendant’s refusal to identify the accomplice as a factor tending to establish that defendant was not amenable to rehabilitation through PTI. Here, by comparison, the prosecutor may properly view defendant’s continued employment as relevant to defendant’s admission into PTI. Whether that employment is considered as a “condition” to PTI entry or as a “factor” that tips the balance against entry is more semantic than real. No matter how characterized, it is within the prosecutor’s discretion to decide that defendant is a suitable candidate for PTI as an ordinary citizen, but not as a police officer. As long as defendant remains a police officer, he will be authorized to wear a badge, make arrests, and, as he did on the night in question, carry both a nightstick and a gun. Thus, the present case raises graver concerns than appear from the general proposition that “[Pjolicemen are in a sense always on duty and are expected to avoid breaking the law.” 107 N.J. at 578 (Handler, J., dissenting). The Grand Jury has charged defendant with committing assault with a deadly weapon, and it is within the prosecutor’s discretion to condition defendant’s admission into PTI on defendant’s resignation from the public office that enabled him to commit the offense. To this extent, we believe the dissent, in restricting the relevance of defendant’s employment to (1) “assessing the culpability of defendant and the gravity of the crime” and (2) “defendant’s amenability to rehabilitation,” takes too constrained a view of the role of defendant’s employment as a police officer.

In discharging his duty to protect the public’s safety, the prosecutor could decide to prevent a recurrence by assuring that defendant will not be in a position as a police officer to assault someone else. At oral argument, the assistant prosecutor advised us that if he could not condition defendant’s admission on his resignation as a police officer, he would recommend that defendant be denied admission into PTI. So advised, we are loathe to foreclose defendant from PTI by ruling that the prosecutor may not so condition defendant’s admission. Because of the prosecutor’s position, the necessary implication of the dissent, however, is to force the defendant out of PTI and into the defense of a criminal prosecution.

In light of the information provided after oral argument, however, the prosecutor may want to reconsider whether the Internal Affairs Bureau of the Newark Police Department is the more appropriate body to determine the effect of defendant’s offense on his employment. Although we recognize that the prosecutor may condition entry into PTI on defendant’s resignation, arguably it would be more prudent to allow the matter to proceed before the bureau.

It is not clear to us, moreover, that the prosecutor has considered other sanctions that are less stringent but within the purposes of PTI. Those purposes include rehabilitation of defendants and the allocation of limited criminal justice resources to “matters involving serious criminality and severe correctional problems.” R. 3:28, Guideline 1(d). It may be that the purposes of PTI could be served through counseling of defendant, his performance of some kind of community service, or the imposition of some other condition. In suggesting that the prosecutor might want to consider other alternatives, we do not denigrate the seriousness of the charges leveled against defendant or the outrage that must be felt by Moore, who, we are informed, is pursuing a personal injury action against him. We seek only to provide the prosecutor with the opportunity to take a fresh look at defendant’s application for admission into PTI.

The judgment of the Appellate Division is affirmed, as modified, and the matter is remanded to the Law Division for further proceedings consistent with this opinion.