I was denied PTI! I want to appeal! How do I do it and how can I win?

What do you need to tell a judge, “Let me into PTI over the Prosecutor’s Objection!”  I need PTI so I do not loose my job!

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.


The key to this case is the fact that the defense attorney presented as much information regarding his client’s current and past life to the prosecutor’s office prior to the PTI denial. When the prosecutor’s office denied the application, the door was left open for the defendant to appeal and argue, successfully here, that the prosecutor’s office did not consider all the evidence presented.  Here the appeals court sent the case back to the trial court ordering the judge to reconsider all the facts outlined in NJSA 2C:43-12(e)(6).

In this case the court ruled again, “the trial judge substituted his judgment for the prosecutor’s on several points, requiring reversal of the order admitting defendant into PTI. We also find, however, the prosecutor failed to consider whether defendant’s crimes were related to a condition or situation conducive to change through participation in supervisory treatment. N.J.S.A. 2C:43-12(e)(6).”


These fact are important because with weed becoming more wide spread and accepted facts like this are arising often:

Following a tip from a confidential informant, an undercover detective with the Middlesex County Prosecutor’s Office Narcotics Task Force made four purchases of marijuana from defendant during February, March and April 2016. All four purchases were made in defendant’s apartment in New Brunswick, where the detective observed a computer displaying four images of the streets outside the building. Executing a search warrant in April, officers recovered the food saver machine defendant used to seal the detective’s purchases, a safe box and plastic bags containing marijuana residue and $5135 in cash, $4440 of which consisted of $20 bills.

Defendant was indicted on four counts of fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12); one count of third-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11); and one count of third-degree maintaining a fortified structure for drug distribution, N.J.S.A. 2C:35-4.1(c); and charged in a complaint-summons with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. Defendant applied for PTI and was interviewed by a probation officer in June 2016.

Defendant reported he was twenty-four years old, having just graduated from Rutgers after six years with a degree in economics and minors in art history and psychology.  He acknowledged having smoked marijuana daily for the past five years and that he drinks rum on the weekends (three glasses). He stated he was in good physical and mental health and not been prescribed any medications.  Defendant reported taking a job with Bankers Life in Tinton Falls upon his graduation but resigned after four weeks because “he did not like how the company worked.”  He claimed to be actively seeking other employment.  He also said he has a real estate license.Defendant reported he was financially supported by his parents and had been employed by his father’s construction company for the last three months at a $1000 a week.  Defendant declined to comment about the crimes with which he was charged. Threshold test again:The judge noted the State combined factor five, “the existence of personal problems and character traits which may be related to the applicant’s crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment,” and factor six, “the likelihood that the applicant’s crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment,” and weighed them against defendant “because ‘[t]here are no “personal problems” or “character traits” which are unique to this defendant for which services would only be available outside the criminal justice system.'”  The judge noted the prosecutor further determined because “‘defendant has never been subject to supervisory treatment there is no way to tell whether he would be conducive to change if given the opportunity.'”     The judge found the absence of prior supervisory treatment “true of every applicant for PTI admission, making this rationale specious and unsustainable as standing against the Defendant’s application.”  He noted the State faile[d] to recognize . . . that if the Defendant had been in “supervisory  treatment” prior to his application so as to be able to ameliorate the State’s concerns  regarding his amenability to PTI  supervision, that supervision would have, in and of itself, disqualified the Defendant  from admission into PTI given that PTI is not available to those who have already been subjected to “supervisory treatment.” The judge found while defendant’s “lack of prior experience in ‘supervisory treatment’ . . . affects the State’s ability to assess [his] amenability to PTI supervision, these factors cannot be weighted in favor of rejecting the Defendant’s application as they do not lead to a conclusion that the Defendant would, as a result, be resistant to said supervision.”

The judge concluded he could not “rely on the limited, cursory review of these factors by the State to subscribe to [its]arguments in rejecting the admission of an otherwise PTI-eligible defendant from PTI.”

This court also ruled that the trial judge placed its own judgment over that of the prosector’s independent judgement.  As a result, the trial judge abused his discretion and supplanted his judgement of the prosecutor’s and usurped the prosecutor’s statutory job to make the PTI decision.  Remember, PTI is the prosecutor’s baby, and allowance in to the program is governed by the 2C:43-12.  A judge has to find the prosecutor abused his/her discretion by CLEAR AND CONVINCING evidence to overrule that decision. This is a very high burden for the judge to prove, but if you provide enough information to the prosecutor’s office, which they will ignore some anyway!

Did your attorney do all this?  Call Hark & Hark to help you address all these issues! We handle all these issues in all Superior Courts in New Jersey.  We can help you handle this case to get you the best results!



Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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