Denied: Defendant’s Appeal of An Order His Motion for Admission into The Pretrial Intervention (“PTI”) Program

State of New Jersey v. Russell Olexa

Docket No. A-0361-21

Decided October 3, 2022

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided the defendant’s appeal of an order denying his motion for admission into the Pretrial Intervention (“PTI”) program.

On May 28, 2019, defendant, who is a Pennsylvania resident, and a friend were shooting targets in Pennsylvania. Defendant transported his handgun in a closed firearm case in his backpack. However, defendant did not have a permit to carry the handgun in Pennsylvania. Later on, defendant and his friend, who was driving, went to New Jersey to visit a friend. Defendant’s friend then indicated he wanted to go to Atlantic City to visit another individual. Defendant remembered he still had his firearm in his backpack, and declined to go. Since his friend didn’t want to drive him back to Pennsylvania, defendant was forced to find his own way from New Jersey. Defendant attempted to locate a bus stop, but since it was dark and he did not have a phone to help him navigate his way, he decided to rest on what he thought was church steps and fell asleep.

Defendant awoke the next morning to police officers asking if he has anything that they need to know about. Defendant was found on the steps of a school. Defendant indicated yes he did, and advisors the officers about the firearm located in his backpack. he officers then searched defendant’s backpack and found a carrying case with a loaded handgun. Defendant was subsequently arrested and eventually indicted for second-degree unlawful possession of a handgun.

After some time, defendant applied for entry into the PTI program. Defendant indicated he is a decorated Marine veteran and legally owned the firearm. He also stated that he did not intent to violate the law and voluntarily disclosed to the police he was in possession of the firearm. The State denied the defendant’s PTI application, noting that under R. 3:28-1(d), because the charges against defendant carried a presumption of incarceration and a mandatory minimum period of parole eligibility, the prosecutor had to consent to consideration of his PTI application. The State also contended that The CCPO concluded defendant did not submit his application in accordance with Rule 3:28-3(b)(1), because his “statement did not provide the requisite extraordinary and compelling circumstances, justifying consideration of the application.

Defendant subsequently appealed the State’s refusal to consider his admittance into the program and the State failed to consider the factors under N.J.S.A. 2C:43-12(e). Defendant main arguments were that the underlying offense did not involve violence, he had no criminal record and that he advised the police about the firearm. The trial court denied the defendant’s motion, determining that defendant failed to present extraordinary and compelling circumstances as required under R. 3:28-3(b)(1), and also did not produce a concealed carry permit to warrant consideration of the 2014 Attorney General Clarification.

Once defendant appealed, the Appellate Court determined the trial court’s decision constituted as a ‘patent and gross abuse of discretion’ and reversed and remanded the matter. The Appellate Court reasoned that the State’s decision was not premised upon a consideration of all relevant factors. The court also found that the factors under R. 3:28-1 to -10 and N.J.S.A. 2C:43-12(e) overlapped, and all had to be considered. Since the State failed to consider the N.J.S.A. 2C:43-12(e) factors, it had not the Appellate Court ordered the State to reconsider defendant’s PTI application due to its failure to consider the application utilizing both aforementioned rules.

At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to PTI applications, dictating Compelling Circumstances letters if there is a presumption against admission into the PTI program, and appealing the State’s denial of a particular client’s PTI application. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.