Appealing Denial into PTI (Pretrial Intervention) – STATE OF NEW JERSEY v. U.S.G.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In this PTI case the appellate panel ruled that the county prosecutor’s office abused their discretion when it denied this defendant admission into their PTI program.  PTI is Pretrial Intervention. Have you been denied PTI? Are you entitled to PTI? Will the criminal charge and possible criminal conviction effect your job? Can you afford to have a criminal conviction for your first time offense? These are all issues that come into play with PTI cases and PTI appeals. Hark and Hark handles PTI appeals to the trial court as well as the appellate division in all counties in New Jersey. We can help you do everything possible to get you into PTI so you do not have a criminal record. Please call us if you have been denied PTI by your county prosecutor’s office. There’s a very short window to file an appeal from eh Prosecutor’s Office’s initial denial letter and you must do things quickly. We can help you do everything possible to save you from getting a criminal conviction.


Here is another PTI appeal case where the appellate court overturned the prosecutor and judges decision to preclude the defendant’s participation in PTI. Remember, there is a presumption inferior of PTI for first time offenders under and very large set of facts and circumstances for all 3rd and 4th degree offenses as well as some 2nd degree offenses.  In addition, their is strong public policy and legislative intent that first time offenders be given the opportunity to participate in PTI with the hope of having their criminal charges ultimately dismissed when they successfully complete the 1, 2, or 3 years of PTI


The defendant was charged with 4° aggravated assault by auto, hindering apprehension and endangering a victim when she left the scene of a incident on the Garden State Parkway after striking a driver who was out of his car changing a tire on the side of the road. The prosecutor’s office denied the defendant’s  PTI application even though the criminal division manager recommended admission into the program. The defendant appealed arguing that the prosecutor abused its discretion by clear and convincing evidence and that was a patton and gross abuse.

The serious facts of this case reflect the defendant did get out of her car, walked over to the victim, heard the victim yelling, retrieved the mirror to her vehicle, and returned to her vehicle and drove away. The defendant argues she did attempt to call 911 but her number was blocked as she was proceeding on the road. When she went to the tollbooth she did not alert anyone that there was an accident or victim on the side of the road. Fortunately for the victim other driver stopped around it assistance and I worded emergency services. When she returned the rental vehicle she did not disclose the accident and damage was caused by the accident on the Garden State Parkway. Rather, this defendant lied and  indicated the damage to the car took place in Brooklyn where she had parked the vehicle. She did report the same story to the police six days later after the incident. Eventually she changed her story and admitted she was involved in an accident involving the disabled victim.

The prosecutor argue to the trial judge that the above facts required prosecution and the need and interest of society, the violent nature of the action, and the possibility of serious injuries or outweighed supervisory treatment.

Court Review of prior PTI Decisions:

“The scope of judicial review of PTI decisions is ‘severely limited[,]’ and interference by reviewing courts is reserved for those cases where needed ‘to check [] the “most egregious examples of injustice and unfairness.”‘” State v. Lee, 437 N.J. Super. 555, 563 (App. Div. 2014) (quoting State v. Negran, 178 N.J. 73, 82 (2003)). “[O]n appeal, [we] review[] PTI decisions with ‘enhanced deference.'” Ibid.

The court’s review of a prosecutor’s PTI determination is limited because of the nature of the decision being made. “PTI is essentially an extension of the charging decision, therefore the decision to grant or deny PTI is a ‘quintessentially prosecutorial function.'” Roseman, 221 N.J. at 624 (quoting Wallace, 146 N.J. at 582). Prosecutors are granted “wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.” Negran, 178 N.J. at 82.

A prosecutor must evaluate PTI applications by considering the factors defined by statute and court rule and conduct an “individualized assessment” of the applicant. The Supreme Court explained the evaluation process as follows:

The assessment of a defendant’s suitability for PTI must be conducted under the Guidelines for PTI provided in Rule 3:28, along with consideration of factors listed in N.J.S.A. 2C:43-12(e). These factors include “the details of the case, defendant’s motives, age, past criminal record, standing in the community, and employment performance[.]” Watkins, 193 N.J. at 520; see N.J.S.A. 2C:43- 12(e). Additionally, a PTI determination requires that the prosecutor make an individualized assessment of the defendant considering his or her “‘amenability to correction’ and potential ‘responsiveness to rehabilitation.'” Watkins, 193 N.J. at 520 (quoting N.J.S.A. 2C:43-12(b)).

[Roseman, 221 N.J. at 621-22.]
A trial court “may overrule a prosecutor’s decision to accept or reject a PTI application only when the circumstances ‘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.'” Roseman, 221 N.J. at 624-25 (quoting Wallace, 146 N.J. at 582). “Where a defendant can make that showing, a trial court may admit a defendant, by order, into PTI over the prosecutor’s objection.” Roseman, 221 N.J. at 625.

A patent and gross abuse of discretion occurs when 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 judgement. . . . 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 [PTI].

This  Defendant argues that a patent and gross abuse of discretion occurred here because the prosecutor improperly viewed the offenses with which defendant was charged as creating a presumption against enrollment in PTI.

“PTI Guideline [3(i)4 establishes] a presumption against PTI eligibility for defendants charged with crimes of violence,

The guideline provides in pertinent part: Any defendant charged with [a] 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 . . . the defendant’s application should generally be rejected. . . . However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materialsdemonstrating the applicants’ amenability to the rehabilitative process, showing compelling reasons justifying the applicant’s admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

“Guideline 3(i), by its terms, applies to violent offenses and other ‘serious or heinous crimes.'” Ibid. (quoting Watkins, 193 N.J. at 514). “The enumerated offenses ‘represent a legislative decision to prevent serious offenders from avoiding prosecution in ordinary circumstances.'” Ibid. (quoting State v. Caliguiri, 158 N.J. 28, 42 (1999)). When a defendant is charged with a crime listed in Guideline 3(i), he or she “faces a significant hurdle to PTI admission, which other applicants need not surmount.” Id. at 512. “Accordingly, the mistaken application of Guideline 3(i) to a defendant not charged with one of the included crimes constitutes a gross and patent abuse of the prosecutor’s discretion.” Ibid. (citing Roseman, 221 N.J. at 627); accord Bender, 80 N.J. at 93.


The prosecutor here never identified the charge that she considered to be a crime of violence that warranted the imposition of the presumption against enrollment. Rather, the prosecutor identified the four charges made against plaintiff and stated that “[d]ue to the serious nature of this offense,” (emphasis added), defendant had to meet the heavier burden where the presumption applies. We cannot discern from the comment whether the prosecutor meant all or one of the offenses. However, our assessment of all the offenses leads us to conclude that none of them rose to the level of deliberately committed crimes of violence contemplated by Guideline 3(i)(3).

Turning first to the charge of hindering her own apprehension, N.J.S.A. 2C:29-3(b)(1), by its express terms, there is nothing violent about the offense that would give rise to the presumption. Fourth degree aggravated assault with an automobile, N.J.S.A. 2C:12-1(c)(1), while violent in nature, does not connote a deliberate act as required by Guideline 3(i)(3) because it is defined by a defendant’s reckless versus intentional conduct. N.J.S.A. 2C:12-1(c)(1).5 Knowingly leaving the scene of an accident resulting in serious bodily injury in the third degree, N.J.S.A. 2C:12-1.1, has as an element that includes the knowing act of leaving the scene of an accident “under circumstances that violate the provisions of [N.J.S.A.] 39:4-129,” a motor vehicle offense. Despite the “knowing” requirement, this is not a violent offense. While a second-degree assault with an automobile can be a violent offense, it occurs before the offense of leaving the scene of an accident occurs, which is not a violent crime, but instead is a violation of the motor vehicle law that requires drivers involved in accidents to remain at an accident scene. It is not a deliberately committed crime of violence, only a violation of a reporting duty.

The Guideline would have applied had defendant been charged with second-degree aggravated assault with an automobile, which requires proof she intentionally assaulted her victim with her car.

Finally, a charge of endangering an injured victim not only requires that the defendant must have knowingly caused injury to the victim, but also that the defendant must have “le[ft] the scene of the injury knowing or reasonably believing that the injured person is physically helpless, mentally incapacitated or otherwise unable to care of himself.” N.J.S.A. 2C:12-1.2(a); see also N.J.S.A. 2C:2-2(c)(3) (establishing a “knowing” state of mind element in criminal statutes where the specific act does not set forth a mens rea). “The section criminalizes the act of leaving the scene with knowledge that the victim is helpless.” Cannell, N.J. Criminal Code Annotated, cmt. to N.J.S.A. 2C:12-1.2 (2017). There is no deliberate act of violence.

This court reversed the denial of defendant’s appeal from the prosecutor’s rejection and remand the matter for entry of an order, directing the prosecutor to reconsider defendant’s application, “ab initio,” within thirty days, without applying any presumption against enrollment. Coursey, 445 N.J. Super. at 512. If that results in defendant’s admittance to the program, the trial court shall vacate her conviction and admit defendant to PTI. If the prosecutor rejects the application again, defendant is free to pursue her challenge anew.

Hark and Hark handles PTI appeals to the trial court as well as the appellate division in all counties in New Jersey. We can help you do everything possible to get you into PTI so you do not have a criminal record. Please call us if you have been denied PTI by your county prosecutor’s office. There’s a very short window to file an appeal from the Prosecutor’s Office’s initial denial letter and you must do things quickly. We can help you do everything possible to save you from getting a criminal conviction.  We also handle Violations of PTI hearings and charges, as well as Violations of Probation and Violations of Drug Court Special Sentencing cases.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment