How to Appeal From a PTI (Pretrial Intervention) Denial

State of New Jersey vs McDonald August 15, 2016.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In this case the Appellate Division reversed a trial judge’s admission of a defendant into PTI after the prosecutor objected and denied defendant’s entry into their PTI program.

The key to this decision is the judge’s ruling which imposed his own decision-making process on and over the prosecutor’s exercise of their judgment. In this case the judge made his own findings of fact and conclusions and ultimately overruled the prosecutor’s denial.  The trial court said the prosecutors objection and denial was “procedurally inappropriate “.  In other words, the prosecutor was wrong and he was right.

The Appellate Division reiterated the long standing statutory reading of the PTI section of the sentencing statute which defines the prosecutor’s scope and control and admissibility of defendants into PTI.  It is a decision making process entrusted solely to the county prosecutor’s offices which gives them alone enhanced or extra discretion. In addition the courts’ review of the prosecutors’ objection/denial of a defendant’s admission into PTI is “severely limited’. The trial court is limited solely to determine of if the prosecutors decision was “patton and gross abuse of discretion”. This severely limited standard of review governs motions to set aside a prosecutors’ denial. In this case the court did not point out any mitigating factors which were offset by the facts of the case. This appellate court went on to determine that it is not the trial court’s function to substitute it’s judgment for that of the prosecutor and determining who is allowed into the PTI program.

In other words when you appeal a county prosecutor’s office’s PTI denial you must go through the facts of your case and show, and contrast all of the facts and examine the 17 part test provided for in the PTI statute, that the prosecutor abuse their discretion and made a decision not based on the facts of the case.  That is the area to attack the prosecutors decision. If however, the prosecutors office went through all of the factors it is required to consider in detail pursuant to NJSA 2C: 43 – 12(e)(1-17), you are going to have much more difficulty proving that the prosecutors office abused their discretion.


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