New Jersey RULE 3:28. Pretrial Intervention Programs

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

State vs. A.S.

Here is a brief review of the PTI standard and law governing the Prosecutor’s PTI program in New Jersey

New Jersey’s PTI program is governed by N.J.S.A. 2C:43-12 and the Supreme Court’s guidelines for implementation, set forth in Rule 3:28. Generally, individuals with no prior convictions are afforded the opportunity to avoid prosecution by receiving rehabilitative services or supervision. N.J.S.A. 2C:43-12(a). A PTI application is initially reviewed by the criminal division manager, R. 3:28; however, the decision to admit an applicant into a PTI program rests with the reasoned discretion of the prosecutor. N.J.S.A. 2C:43-12(e); see also Nwobu, supra, 139 N.J. at 246. N.J.S.A. 2C:43-12(e) identifies seventeen factors for consideration when examining an application for PTI admission. Prosecutors exercise broad discretion in determining who to admit into PTI. Nwobu, supra, 139 N.J. at 246. As such, we extend “‘enhanced'” deference to that decision. State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Baynes, 148 N.J. 434, 443 (1997)). Our “severely limited” review is designed to address “only the ‘most egregious examples of injustice and unfairness.'” Ibid. (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)).

If an application is denied, the prosecutor must provide a statement of findings supporting his or her conclusion. N.J.S.A. 2C:43-12(f). A defendant may appeal by moving before the Superior Court to overturn the prosecutor’s rejection. Ibid. The burden to “clearly and convincingly establish that the prosecutor’s decision constitutes a patent and gross abuse of discretion” rests with the defendant. Watkins, supra, 193 N.J. at 520 (quoting State v. Watkins, 390 N.J. Super. 302, 305- 06 (App. Div. 2007)). In State v. Bender, 80 N.J. 84, 93 (1979), the Court defined a “patent and gross abuse of discretion” in the context of a prosecutor’s denial of a PTI application:

Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. In order for such an abuse of discretion to rise to the level of “patent and gross,” it must further be shown that the prosecutorial error complained of will clearly subvert the goals underlying [PTI].  The “patent and gross abuse of discretion” standard applies to a prosecutor’s initial decision to reject a candidate into the PTI program.

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