Out of State Grave’s Act Offense: Key Issue Is the Ability to Prove for Any County Prosecutor PTI Coordinator Adequate Supervision in The Defendant’s Home State

State of NJ v. James Ray   Decided December 11, 2020

On appeal from the Superior Court of New Jersey, Law Division, Bergen County,


Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Defendant James D. Ray signed a pre-trial intervention (PTI) application that was denied by the Bergen County prosecutor. He is appealing against the rejection of his application.

The defendant is a resident of Georgia and was visiting his daughter in New Jersey.  On May 17, 2017, the defendant and his daughter were arrested for possession of a firearm without a valid permit and possession of hollow-nose bullets. The defendant plead guilty to all the charges, and in doing so, the charges against his daughter were dropped. The defendant was staying at a hotel in NJ. A housekeeper employed by the hotel found a handgun and alerted the police. As recorded by hotel surveillance footage, the defendant took the gun to his car immediately after the housekeeper came in to clean the room. When they police arrived, the gun and bullets in were found in possession of the defendant. After his arrest, the defendant applied for a PTI.  The PTI program was created for first-time offenders charged with nonviolent crimes to avoid facing jail time. Instead, the offender is monitored and must abide by certain rules and conditions such as community service, random drug testing, and/or restitution payments. According to Rule 3:28, PTI is denied to out-of-state residents. This rule been changed. Out-of-state residents are now eligible for PTI if they can prove there is adequate supervision available in their home state. At trial, the defendant failed to demonstrate adequate supervision in his home state, thus, trial judge denied his PTI.

On appeal, the defense argued: 1) The prosecutor’s objection to PTI for the defendant was an arbitrary, capricious, and gross abuse of discretion. 2) The prosecutor’s actions subvert the goals of the PTI program. There is a close relationship between the PTI program and the prosecutor. The prosecutor has a wide range of discretion when it comes to who receives PTI and who goes to a traditional trial. The defendant argued that there was a gross abuse of discretion against him, meaning that the trial judge made a mistake that interfered with defendant from having a fair trial. To prove this claim there are three factors to consider: denial of PTI “a) was not premised upon a consideration of all relevant factors, b) was based on consideration of irrelevant and inappropriate factors, c) amounted a clear error of judgment” and the denial of PTI “clearly subvert[s] the goals underlying [PTI].” The defense could not prove any. The defendant also argued that the prosecutor wrongly applied (the recently deleted) ineligibility to grant PTI to out of state residents found in Rule 3:28. Rule 3:28, guideline b, now states, “[n]on residents are eligible to apply for the [PTI] program but may be denied enrollment unless they can demonstrate that they can receive effective counseling or supervision.” However, there is a favorable factor to consider. The defendant was a 55-year-old veteran who was honorably discharged and had no prior history of violence or organized crime. The defendant clearly had good merit with the community and the country as a whole. Ultimately, that was not enough to accept his application. The appellate court agreed with the trial court’s decision that the defendant could not supply sufficient evidence that adequate supervision could be provided for him in Georgia. This not only denied his PTI, but the defendant violated the Grave’s Act, and the mandatory 42-month prison sentence was not waived either. The Grave’s act imposes mandatory prison sentencing for unlawful possession of firearms. As a result, the appeal was denied.

Key Import for this case involving an OUT OF STATE defendant.The defendant was arrest under the Grave’s Act for a handgun offense. R. 3:28-1(b) now provides  “[n]on-residents are eligible to apply for the [PTI] program but may be denied enrollment unless they can demonstrate that they can receive effective counseling or supervision.”  Court went on to date:

The judge noted that this court previously recognized “the lack of alternative supervisory and counseling programs within Georgia that could act as a sufficient proxy for New Jersey’s PTI program,” and that defendant failed to show that circumstances in Georgia have changed to  make out-of-state PTI possible. See State v. Waters, 439 N.J. Super. 215, 232- 33 (App. Div. 2015) (noting that “Georgia’s First Offender program . . . relate[s] only to defendants convicted in Georgia” and that “persons on [PTI] are ineligible [for the Interstate Commission for Adult Offender Supervision]”)

Although, many of the states near New Jersey do have adequate supervision, the key issue Hark & Hark addresses regularly for client’s charges with weapons offense similar to Mr Ray (an out of state defendant who lawfully owns a weapon from another state, is establishing the ability to prove for any county prosecutor PTI coordinator adequate supervision in the defendant’s home state!


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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