How can I get into PTI after the Prosecutor objects or denies my participation into PTI

I want to get into PTI (Pretrial Intervention) because my criminal charge is for a 3rd or 4th degree offense.  Why is the prosecutor objecting and not letting me in?  What can I do?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In this case a government employee, defendant Morgan who was a school district employee, used his public office in conjunction with a co-defendant, Uszenski, to obtain a benefit for Uszenski’s grandchild who may not otherwise have been entitled to receive from the special needs services of the school district. Specifically, the State alleges co-defendant Walter Uszenski, along with his daughter, co-defendant Jacqueline Halsey, and Morgan worked together to “fraudulently provide Uszenski’s grand[child] . . . with educational, travel, and other expenses for which [the child] was not entitled.” These expenses were paid with (public) district funds.  Defendant was the Academic Officer of the Brick Township Public School District (“the district”). The State alleges that after Uszenski’s grandchild began attending kindergarten in September 2014, defendant gave the final sign-off for the payment of $141 to a social worker for counseling services that had already been provided to the child to assist him in transitioning from a special needs pre-school program to a general education kindergarten class.

The State asserted that this action constituted official misconduct because defendant allegedly did not review all of the documentation underlying the request prior to giving her sign-off.  The defendant, Morgan, was indicted and applied for PTI.  The PTI coordinator in the prosecutor’s office reviewed NJSA 2C:43-12 and all of the factors outlined therein. (I have also written numerous blogs on all of the factor’s the prosecutor must, yes must, take into consideration when admitting or denying a defendant’s entry into their PTI program.)  If the prosecutor fails to consider all of the factors in the case law and NJSA 2C:43-12 it is grounds to appeal and have the court reverse the prosecutor’s office’s denial because their decision could be considered an abuse of discretion. Read my other blogs on this issue because I discuss all of the threshold arguments and tests that need to be followed.

In this case the appellate court indicated the state’s primary denial of entry onto their PTI program focused on

  1. the nature of the offense (a 2nd degree crime) and
  2. the effect it would have on prosecuting the co-defendants in the case.

Once the defendant was denied PTI and he appeal, and the trial court  reversed their denial, the state appealed the court’s allowance of this defendant into PTI.  in the Appellate Division, the appeals court rejected the prosecutor’s argument concerning the ‘effect of prosecuting the co-defendant finding it without merit.  However, the court did address the second degree offense, which created a presumption against admission and the defendant was public employee whose alleged offense touched upon her office.

The odd part of this case is the prosecutor’s superseding indictment against all the defendants while the PTI appeal was pending.  The issue pertaining to the ‘effect on the prosecution of co-defendants’ was upended when the state presented a superseding indictment against this defendant and numerous others.  In the superseding indictment, once discovery was turned over, other defendant’s filed a Motion to Dismiss their Indictments because those defendants learned the prosecutor’s office did not present to the grand jury exculpatory evidence. (This is called a Logan Motion and you can review my blogs for this issue as well.)  Once the trial court granted these defendants’ motions and the co-defendants were dismissed, the appellate court viewed that ‘effect on the prosecution of co-defendants’ as fatal to the state’s argument; there were no more defendants!  The appellate court also allowed this defendant, once back at the trial court level, to file the same Motion to Dismiss as the other defendants.  The appellate court also instructed the trial court to be aware of these issues as well as the minimal value of the alleged public trust theft, $141.00.

The procedural history in this case is so substantial, given numerous defendants, numerous counts against each, and several successful Motion to Dismiss the superseding indictments against this defendant and others, the appeals court remanded the case to the trial court with out prejudice and allowed this defendant to preserve her right to reapply to PTI, and appeal if she is denied again.

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