dissenting.
The defendant, Vincent DeMarco, is a 26-year veteran of the Newark Police Department. He was indicted for a fourth-degree assault arising out of an incident that occurred at his home in Sussex County while he was off-duty and in civilian clothes. Following his indictment, DeMarco applied for enrollment into the Sussex County Pretrial Intervention Program (PTI). The PTI Program Director recommended enrollment, emphasizing DeMarco’s steady employment as a Newark police officer and his admission of involvement in the offense. However, the Sussex County Prosecutor refused to recommend enrollment in PTI unless defendant resigned from the Newark Police Department. The Court upholds the prosecutor’s determination, rejecting defendant’s contention that to condition PTI on his resignation from employment constitutes an abuse of prosecutorial discretion. I believe that the prosecutor did not correctly apply the standards governing PTI and that his determination should be reversed. I therefore dissent.
I.
The prosecutor’s refusal to recommend enrollment in PTI was initially based on the defendant’s alleged use of “excessive and potentially deadly force of an assaultive and violent na*574ture.” However, the prosecutor subsequently furnished a different reason for denying defendant’s application. The prosecutor advised defendant’s attorney “that the Prosecutor’s Office of Sussex County 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.”
Defendant moved for judicial review of the prosecutor’s determination, asserting that the prosecutor patently and grossly abused his discretion by conditioning PTI enrollment on defendant’s resignation from the police force. The trial court agreed and held 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[’s]” goals. The court signed an order directing defendant’s enrollment into PTI. On appeal, the Appellate Division reversed, finding that the prosecutor had not exhibited a patent and gross abuse of discretion.
II.
Effective September 1, 1979, the Legislature enacted New Jersey’s Penal Code, which includes N.J.S.A. 2C:43-12 to -13, the pretrial intervention statutes. The Code adopts substantially the pretrial intervention program previously established by the courts under Rule 3:28. State v. Dalglish, 86 N.J. 503, 506 (1981). When codified, the PTI program had already been the subject of thorough and comprehensive judicial treatment. E.g., State v. Leonardis, 71 N.J. 85 (1976) (Leonardis I), and State v. Leonardis, 73 N.J. 360 (1977) (Leonardis II).
In State v. Dalglish, supra, 86 N.J. 503, the Court ruled that in challenging a prosecutorial decision denying admission into a PTI program, the defendant must “clearly and convincingly” prove that the prosecutor’s determination was based on a “patent and gross abuse of his discretion.” A patent and gross abuse of discretion can occur if the determination was based upon a consideration of irrelevant or inappropriate factors, or *575upon an incorrect evaluation of relevant factors. Id. at 509. In this case, the prosecutor would deny defendant admission into PTI unless he terminated his employment as a policeman.
The prosecutor’s determination is based on an erroneous view of the relevance of a defendant’s employment in terms of eligibility for PTI. In my opinion, a defendant’s employment will be relevant generally in only two situations. First, if it constitutes a material circumstance in connection with the commission of the crime; as such it may be an element in assessing the culpability of defendant and the gravity of the crime. Second, a defendant’s employment may be relevant if it has bearing on a defendant’s amenability to rehabilitation. In the first context, employment is an evidential factor in determining whether the defendant should be admitted into PTI or subjected to criminal prosecution; guilt and the seriousness of the offense are critical factors in determining whether criminal sanctions are required. In the second context, employment may be relevant in determining whether a defendant will benefit from PTI in terms of rehabilitation when the circumstances surrounding his crime do not otherwise demand criminal prosecution.
In making his determination in this case, the prosecutor has not differentiated between the possible uses of a defendant’s employment as a PTI factor. At the hearing before the trial court, the prosecutor stated only that “[defendant’s] status as a police officer, given the facts and circumstances of this case, the nature of the offense, certainly is a relevant factor that must be considered.” The prosecutor failed to understand the relevance of employment either as a culpability factor bearing on defendant’s criminality and eligibility for PTI or as a personal factor bearing on defendant’s rehabilitation under PTI. The majority also miscomprehends the two related but distinct ways in which employment bears upon a defendant's admission to and treatment under the PTI program.
*576In determining PTI eligibility, the courts of this State have considered employment in terms of the defendant’s culpability and the gravity of the crime. The most obvious use of a defendant’s employment in this regard is in determining whether the crime constituted “a breach of the public trust.” R. 3:28, Guideline 3(i)(4). For example, in State v. Hermann, 160 N.J.Super. 283 (App.Div.1978), rev’d on other grounds, 80 N.J. 122 (1979), defendants were public school teachers who bought stolen property from a student. The court on appeal emphasized the relevance of the defendants’ employment in terms of the gravity of the offense and the need for criminal sanctions. The appellate court cited with approval the trial court’s statement opposing diversion:
The public ought to be entitled to believe and assume that teachers will confine their instruction to the arts and crafts and sciences normally found in the curricula, and that they will not extend their influences to the point of instructing or appearing to condone crimes. [Id. at 292.]
In State v. Bender, 80 N.J. 84 (1979), defendant was a licensed pharmacist who stole his employer’s drugs. The prosecutor contended that defendant was ineligible for PTI because his crime constituted “a breach of the public trust.” Id. at 96. The Court acknowledged the relevance of defendant’s employment under the particular circumstances, but ruled that the public trust was not implicated because the actual crime involved the private use of the drugs. The Court stated:
The cocaine was personally consumed, not distributed to third parties. Only defendant, himself, and his immediate employer were victimized. Thus, although defendant’s crimes were made possible by his status as a licensed pharmacist, those crimes did not breach the trust reposed in him to protect the citizenry at large. [Id. at 96 (emphasis added).]
In a related context, the Court has ruled that the employment status of a defendant is relevant under the conditional discharge program provided by the Controlled Dangerous Substances Act (CDS), N.J.S.A. 24:21-1 to -53. In State v. Alston, 71 N.J. 1 (1976), a police officer was found guilty of possession of heroin. Prior to sentencing, defendant moved for the suspension of further criminal proceedings and for admission to a *577treatment program under CDS. Affirming the trial court’s decision to allow the defendant to enter treatment, the Court noted with apparent approval that the trial court was aware of “the nature of defendant’s employment and took it into consideration before exercising its discretion.” Id. at 7. We rejected, however, the State’s contention that the defendant was not eligible for CDS “[bjecause his employment status would make him ‘a danger to the community,’ ” one of the considerations under N.J.S.A. 24:21-27c. Id.1 In effect, the defendant’s employment as a police officer was relevant, but its connection with the crime did not render the offense so serious as to warrant criminal sanctions nor did it prevent defendant from receiving the benefits of rehabilitation under the CDS treatment program.
In State v. Humphreys, 89 N.J. 4 (1982), a school teacher was charged with drug offenses, including distributing one ounce of marijuana to a former student. After pleading guilty, defendant applied for a conditional discharge under CDS. The trial court denied the application based on defendant’s occupation as a public school teacher, the fact that he was dealing in controlled substances, and the existence of community anxiety over his drug involvement. We concluded that a defendant’s status as a school teacher alone is not enough to show sufficient harm to the public good to warrant exclusion from CDS. However, the Court did not preclude weighing the defendant’s employment status as an appropriate factor in dealing with his application. Id. at 13. We thus acknowledged the relevance of the defendant’s employment status to assessing culpability and the seriousness of the offense in determining whether criminal prosecution was required.
*578These cases illustrate that in particular contexts a defendant’s employment may be relevant to the nature and quality of the crime; it may serve to underscore the defendant’s culpability or the gravity of the offense. These considerations bear directly on whether a defendant should be criminally prosecuted or diverted into a non-criminal treatment program.
In the present case, it can be argued that defendant’s crime breached the public trust placed in him as a police officer. Policemen are in a sense always on duty and are expected always to avoid breaking the law. See, e.g., Simone v. Borough of Elmwood Park, Bergen County, 7 N.J.A.R. 72, 89 (1983); Speights v. City of New Brunswick, 1 N.J.A.R. 435, 447 (1980); Patrick Carroll v. City of Elizabeth, 2 N.J.A.R. 26, 31 (1979). A policeman, even more than a teacher or pharmacist, should be relied on as a “paragon of honesty,” State v. Her-mann, supra, 160 N.J.Super. at 292, or “public trustee,” State v. Bender, supra, 80 N.J. at 96. Consequently, defendant’s position as a police officer can have a material bearing on whether his offense calls for criminal sanctions. Nonprosecution could encourage disrespect for the laws and for those who enforce them. Therefore, the employment of the defendant, with its public policy implications, was not per se an inappropriate factor for the prosecutor to weigh in denying diversion.
In this case, however, the prosecutor did not use defendant’s employment as a factor for determining his eligibility for PTI; the prosecutor did not conclude that defendant’s employment had a material bearing upon defendant’s culpability or the gravity of the crime. Instead, the prosecutor determined that defendant was eligible for PTI, but nevertheless conditioned enrollment on defendant’s resignation from the police force. Because there is no -suggestion that this “condition” is even remotely related to defendant's prospects for rehabilitation under PTI, we can infer only that this condition was imposed as a form of punishment. To use PTI as a form of penal sanction subverts the laudatory goals of pretrial intervention, which *579surely are not to provide alternative punishment but to rehabilitate worthy persons.
We have recognized the distinction between a factor that is used as a “condition” for PTI admission and a factor that is considered material in determining eligibility for PTI. In State v. Maddocks, 80 N.J. 98 (1979), one of the three reasons why the prosecutor refused to recommend PTI enrollment was the defendant’s refusal “to cooperate with law enforcement officials by naming his companion in the breaking and entering.” Id. at 103.2 The defendant argued that conditioning his enrollment on identification of an alleged accomplice was “similar in nature to a requirement that guilt be admitted, and hence should be irrelevant to a prosecutorial determination.” Id. at 106. The defendant pointed for support to Rule 3:28, Guideline 4, which bars a prosecutor from conditioning enrollment into PTI on an admission of guilt. The Court acknowledged that while it is improper to condition enrollment on an admission of guilt, it is not improper for the prosecutor to “take into consideration the fact that a specific defendant has refused to admit his guilt.” Id. at 106 (emphasis added). The Court explained:
In certain circumstances, a voluntary proffering of self-incriminatory information may indicate defendant’s degree of repentence for the crime he has committed, and hence bear upon his “amenability to correction ” and potential "responsiveness to rehabilitation." [Id. at 106.]
Contrary to the majority’s assertion, ante at 571, I do not suggest that there are no circumstances in which a prosecutor may condition PTI enrollment. In certain cases, such a determination might be entirely consistent with the purposes of pretrial intervention. However, this will be the case only where the condition bears a rational relationship to defendant’s *580“amenability to correction” and “potential responsiveness to rehabilitation.” Id.3
In this case, the prosecutor made clear at the hearing before the trial court that enrollment in PTI was conditioned on defendant’s resignation from the police force: “[T]he prosecutor has considered that if the Defendant would accept that condition, ... we [the State] could possibly allow his admittance into the program.” However, the prosecutor did not consider, relate, or use defendant’s employment as a factor bearing upon his “amenability to correction” or “potential responsiveness to rehabilitation.” Thus, the prosecutor’s determination constituted a “patent and gross abuse of his discretion.” State v. Dalglish, supra, 86 N.J. at 509.
It is important to bear in mind that in determining whether the standards applicable to PTI enrollment have been met, we are necessarily construing and applying the legislative scheme of pretrial intervention. See Leonardis II, supra, 73 N.J. 360. The majority contends that my position “force[s] the defendant out of PTI and into the defense of a criminal prosecution.” Ante at 572. To the contrary, I would simply require that the prosecutor exercise his discretion in conformance with the legislative purposes underlying the PTI statutes. It is the majority which “forces” the defendant to choose between enrollment in PTI and his continued employment as a police officer based upon considerations that are entirely alien to the goals that motivate pretrial intervention programs.
*581The majority states that the prosecutor’s determination in this case is justifiable in order to prevent the defendant from committing a “subsequent similar offense.” Ante at 572. However, the prosecutor’s decision to condition PTI enrollment on defendant’s resignation from the police force interferes with the extensive legislative machinery that exists for dealing with the discipline of police officers. The substantial case law interpreting and applying this legislation shows that it was enacted to insure public confidence in the efficiency and efficacy of the police force and to protect individual officers from arbitrary and capricious disciplinary action. To this end, the legislation contains both substantive and procedural elements.
The tenure of police officers is protected generally by New Jersey’s Civil Service Law. (Title 11). The Civil Service Law prescribes the conduct that shall be considered just cause for the dismissal of police officers, and mandates specific procedures that must be followed in imposing this sanction. On the substantive side, the Civil Service Commission has promulgated regulations that list a number of activities that “shall be cause for removal ... although removals may be made for sufficient causes other than those listed.” N.J.A.C. 4:1-16.9. Those causes specifically proscribed include: insubordination or serious breach of discipline; disorderly or immoral conduct; the conviction of any criminal act or offense; and conduct unbecoming an employee in the public service. Id. The decisional law construing N.J.A.C. 4:1-16.9 emphasizes the broad discretion accorded the appointing authority, Commission, and court in defining the proscribed causes and in penalizing violations thereof. See, e.g., Appeal of Tuch, 159 N.J.Super. 219 (App.Div.1978); Speights v. City of New Brunswick, supra, 1 N.J.A.R. 435.4
*582In addition to its substantive elements, New Jersey’s Civil Service Law mandates stringent procedures which must be followed before a police officer, state or local, can be removed from the force. N.J.S.A. 11:15-2. For example, Civil Service Rule 59 (1949) requires that a state police officer subject to dismissal be accorded a hearing by the appointing authority in all cases. With regard to county and municipal police officers, N.J.S.A. 11:22-38 states that no officer shall be removed “until he has been furnished with a written statement of the reasons for such action by the appointing authority and been allowed a reasonable time to make answer thereto.”
Of greater importance are the provisions of the Civil Service Law that grant a police officer the right to have his removal reviewed by the Commission and, ultimately, the courts. N.J. S.A. 11:15-4 and 11:22-40; also N.J.S.A. 11:2A-1. If the discharged employee files an appeal within twenty days from the date of the removal, the Commission must schedule a public hearing of the case. A police officer has substantial procedural rights in such hearings. N.J.S.A. 11:15-4, -5 and 11:22-39. Once the hearing is completed, the Commission has broad power to dispose of the case. N.J.S.A. 11:15-6. The cases interpreting and applying the procedural commands of the Civil Service Law emphasize the right of a discharged police officer to a hearing before an impartial tribunal. See Ferrari v. Melleby, 134 N.J.Super. 583 (App.Div.1975).
In addition to the Civil Service Law — which protects government employees generally — legislation exists that is directed specifically toward the discipline of police officers.5 These statutes provide officers subject to dismissal with meticulous procedural due process rights. See N.J.S.A. 40A:14-147, -148; Ressel v. Costello, 79 N.J.Super. 149, 152 (App.Div.1963). In *583order to further protect the police officer from arbitrary and unreasonable disciplinary action, this legislation emphasizes the availability of judicial review. See N.J.S.A. 40A:14-150; Matter of Bruni, 166 N.J.Super. 284 (App.Div.1979).
It is fair to conclude that the Legislature gave the prosecutor important discretionary authority under the PTI statute. This authority encompasses broadly the discretion to consider a host of factors bearing on eligibility for PTI. This does not, however, include the use of PTI as an extension of the penal laws. PTI is an alternative to the criminal justice system; it is not a supplement to criminal prosecution. This strongly suggests that a prosecutor may not use PTI to achieve the ends of criminal prosecution that encompass punishment and deterrence. It is within this frame of reference that the discretion of the prosecutor will permit the imposition of conditions on PTI enrollment — if they bear a rational relationship to the rehabilitation of diverted offenders. This discretion, however, does not enable a prosecutor to use PTI as a vehicle for the imposition of discipline that is otherwise vested in other governmental and regulatory entities.
IV.
The employment of a defendant as a police officer is a relevant consideration in determining whether he is eligible for admission into PTI. It is an evidentiary circumstance potentially bearing on defendant’s culpability or the gravity of the crime. If a defendant’s employment substantially aggravates his guilt, then the purposes of the criminal justice system are not met by admitting defendant into PTI, even if defendant resigns his police office. If, on the other hand, a defendant’s employment is not significantly probative of the crime committed, then it should have no bearing on his admission to PTI, except as it might relate to the rehabilitation of an offender who is not otherwise in need of criminal punishment.
*584In this case, the prosecutor did not consider defendant’s employment as a factor bearing on his guilt or the seriousness of the crime. Further, the prosecutor did not consider defendant’s employment as a factor or condition relevant to his rehabilitation. I can only conclude, therefore, that the prosecutor’s determination involved an incorrect understanding and evaluation of employment as a relevant factor and was, therefore, a gross abuse of discretion. The prosecutor’s determination in this case — admitting defendant to PTI upon his resignation from the police force — disserves both the criminal justice system and PTI. I would therefore reverse.
For modification, affirmance and reversal — Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For reversal — Justice HANDLER — 1.
The Court stated: "We are not concerned here with a municipality’s basic right to refuse to reinstate a police officer upon a proper showing that restoring him to his duties would pose a danger to the community.” State v. Alston, supra, 71 N.J. at 7. See infra pages 581-583.
The other two reasons were the seriousness of the offense and “[a] desire by the Belmar Police that a record of defendant's criminal involvement be kept because they felt he was on the periphery of other criminal investigations." State v. Maddocks, 80 N.J. at 103.
For example, the prosecutor might determine that in order to increase the prospects for successful rehabilitation it is necessary to remove defendant from a position of power and authority. I do not intimate that such a determination would be reasonable in this case, but merely offer it as an example of a conditioned enrollment which is consistent with the underlying purposes of PTI. Such a prosecutorial determination is different in kind from a condition which is imposed because the prosecutor believes that defendant's future employment as a police officer would pose a danger to the community. The latter determination is better left to those state and municipal agencies that are specifically designed to make such decisions. See Infra pages 581-583.
Police officers are also subject to N.J.S.A. 2C:51-2, which provides for the automatic dismissal of public employees who are convicted of offenses implicating their employment.
N.J.S.A. 11:22-24 states that “[n]othing contained in [the Civil Service Law] shall alter, amend, change or affect any law of the state respecting the police ... departments in any municipality or regulating the tenure and terms of officers or employees in such departments.”