offense defined by statute. State v. Lagares, 127 N.J. 20,
27 (1992); In the Matter of L.Q., 227 N.J. Super. 41 (App.
Div. 1988). See also Wayne v. United States, 470 U.S.
598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).
Enhanced deference is given to prosecutorial
decisions to admit or deny a defendant to Pretrial
Intervention (PTI). State v. Wallace, 146 N.J. 576, 582
(1996). Generally, a 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 his discretion” before a court
can suspend criminal proceedings under R. 3:28 without
prosecutorial consent. State v. Leonardis, 73 N.J. 360,
382 (1977). Such abuse of discretion arises upon a
showing that the rejection is not premised upon a
consideration of all relevant factors, is based upon a
consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment. State v. Hoffman,
224 N.J. Super. 149 (App. Div. 1988). See State v.
Bender, 80 N.J. 84, 93 (1979).
Where defendant admits her guilt of obtaining
financial assistance by false representations, has never
been involved in any other crime and has begun
restitution, but the prosecutor asserts defendant’s failure
“to show her amenability to a rehabilitative process,” a
court can find that the prosecutor has not considered
other relevant factors when determining defendant was
not a suitable PTI candidate. State v. Burger, 222 N.J.
Super. 336 (App. Div. 1988). See State v. Mickens, 236
N.J. Super. 272, 279 (App. Div. 1989).
A prosecutor may not exercise peremptory challenges
to “remove potential petit jurors who are members of a
cognizable group on the basis of their presumed group
bias, the State, however, may peremptorily challenge
such venirepersons on the grounds of situation-specific
bias.” State v. Gilmore, 103 N.J. 508 (1986). See Georgia
v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L.Ed.2d
33 (1992); State v. Martel Johnson, 325 N.J. Super. 78,
84-86 (App. Div. 1999)(black defendants may not make
race-based peremptory challenges), certif. denied, 163
N.J. 12, order vacated on reconsideration, certif. granted in
part, 163 N.J. 393 (2000)(limited to sentencing issue).
The decision of the trial court regarding the
prosecutor’s reasons must be given due deference on
appeal. State v. Hughes, 215 N.J. Super. 295 (App. Div.
1986). A prosecutor may exercise a peremptory
challenge against a black juror whose eyes had been closed
for “a very, very long time.” State v. Gilliam, 224 N.J.
Super. 759 (App. Div. 1988). Black jurors may also be
excused because of their views toward the death penalty.
State v. Thomas, 224 N.J. Super. 221 (App. Div. 1988).
The State may excuse all Spanish-speaking jurors where
the interpretation and translation of audio taped
recordings from Spanish to English constitutes a major
issue at trial. State v. Pemberthy, 224 N.J. Super. 280
(App. Div. 1988), certif. denied, 111 N.J. 633 (1988),
hab. granted, Pemberthy v. Beyer, 800 F. Supp. 144
(D.N.J. 1992), rev’d, 19 F.3d 857 (3d Cir.), cert. denied,
513 U.S. 969, 115 S. Ct. 439, 130 L.Ed.2d 350 (1994).
However, the prosecutor’s reasons for challenging
minority jurors may be deemed invalid if the same
reasons are not applied with equal force to Caucasian
jurors. State v. Townes, 220 N.J. Super. 38 (App. Div.
1987).State v. Hogan, 336 N.J. Super. 319 (App. Div.
2001), provided that only an exculpatory defense, as
opposed to a mitigating defense, needs to be charged to
a grand jury; the duty to charge as such arises and only
when facts known to a prosecutor clearly indicate
appropriateness of an instruction; and such duty is met
as long as instruction conveys the gist of that defense or
justification. The Appellate Division in this case also
held that a failure to instruct a grand jury on the law
enforcement exception to the duty to retreat is not error;
it was not improper for a deputy attorney general to
obtain and release an intervening indictment against the
same defendants from a different grand jury on charges
relating to another issue (alleged racial profiling); and it
was not improper for the deputy to summarize evidence
in the final statement to the grand jury.III. DUTY OF DISCLOSURE
A. GenerallyAs a officer of the court, the prosecutor has an
obligation not only to note the existence of possible
prejudice or bias on the part of a grand juror but to
disclose such circumstances to the court and to afford the
court the opportunity to preserve the impartiality of the
grand jury proceedings. State v. Murphy, 110 N.J. 20
(1988). See State v. Brown, 289 N.J. Super. 285, 288-92
(App. Div. 1996)(applying State v. Murphy).If the State’s critical witness lies to the jury and the
State, the court did not abuse its discretion in permitting
the State to recall the witness; rather than to permitting
the defense to subpoena a witness solely to attack the
credibility of the State’s witness. State v. D’Amato, 218
N.J. Super. 595, 601 (App. Div. 1987), certif. denied, 110
N.J. 170 (1988).