Defendant’s Pretrial Intervention Program Denial and Trial Court Review | State of New Jersey v. Fregm

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

State v. Fregm. October 17, 2016

In this decision the Appellate Division reversed the trial court for performed its own independent review of the 17 factors set forth in the PTI statute, found at New Jersey Statute Annotated 2C: 43–12(e)1, as opposed to only making a determination of whether the prosecutor’s office abused its own discretion when denying the defendant entry into PTI.

As I have said on numerous occasions in my blogs, when appealing a PTI denial, defendants have to prove the county Prosecutor’s Office performed a patent and gross abuse of its discretion when it did not consider all of the relevant facts, prior to denying the defendant’s entry into PTI. In other words, you have to show and prove to the trial court by clear and convincing evidence that the Prosecutor’s Office made a mistake by not reviewing all of the facts or overlooked important issues which would have made a difference in the decision making process.

This is the highest evidentiary burden, and often the hardest to prove. The trial judge is not allowed to substitute her own or his own decision-making when reviewing the prosecutor’s decision. The trial judge job is limited to reviewing the decision-making process of the PTI coordinator in the prosecutors office. He cannot second-guess their decision so long as the prosecutor reviewed all of the fact within the confines of the 17 factors to be applied to all PTI applications.

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