Pretrial Intervention Program – Judicial Review of PTI Decisions

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

STATE VS. JUSTIN LEE  (APP. DIV 2014)

This case addresses the standard of review for a trial court when reviewing a prosecutor’s denial of PTI (Pretrial Intervention).  The issue in this case are facts submitted to the trial court and a plenary hearing from witnesses regarding the underlying facts of the offense for which the defendant is seeking admission into PTI.  The trial court hear testimony from several alleged eye witnesses as a result of affidavits submitted with the defendant’s PTI application. The eye witness’ affidavits contradicted some of the facts from the police reports.  However,  Before commenting on the facts the court reviewed the function of PTI and the trial court’s limited ability to review the prosecutor’s exercise of discretion:  “We make several preliminary observations. PTI is “a discretionary program diverting criminal defendants from formal prosecution.” State v. Caliguiri, 158 N.J. 28, 35 (1999). Admissions into PTI are governed both by statute, N.J.S.A. 2C:43-12(a)–(j), and Guidelines accompanying a court 3:28 at 1166-67. Admission into PTI is “a quintessentially prosecutorial function.” State v. Wallace, 146 N.J. 576, 582 (1996). In carrying out this function, prosecutors are guided by a number of factors.

17 Pretrial Intervention Factors

The seventeen factors include, among other things:

(1) The nature of the offense;
(2) The facts of the case;
(3) The motivation and age of the defendant;
….
(7) The needs and interests of the victim and society; ….
(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;
….
(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

. . . . ; and
(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.

[N.J.S.A. 2C:43-12(e).] & Verniero, supra, Guideline 3(i) to R. 3:28 at 1169.

We shall discuss the points raised in a different order than presented in defendant’s brief. Primarily, prosecutors are required to consider the seventeen factors listed under N.J.S.A. 2C:43-12(e).3 “[U]nless and until a defendant demonstrates the contrary, our judges must presume that all relevant factors were considered and weighed prior to a prosecutorial veto.” State v. Bender, 80 N.J. 84, 94 (1979).  As we have already noted, PTI Guideline 3(i) specifies that an application for PTI should “generally be denied” in instances where a defendant “deliberately commit[s]” an offense “with violence or threat of violence against another person[.]” Pressler.

In the instances where what has been described as this “presumption” against PTI applies, the applicant must show, as the Guidelines instruct, “compelling reasons justifying the applicant’s admission and establishing that a decision against enrollment would be arbitrary and unreasonable.” Ibid. These compelling reasons must consist of “something extraordinary or unusual, something ‘idiosyncratic’ in [the defendant’s] background.” State v. Nwobu, 139 N.J. 236, 252 (1995) (citation omitted).

The scope of judicial review of PTI decisions is “severely limited[,]” and interference by reviewing courts is reserved for those cases where needed “to check [] the ‘most egregious examples of injustice and unfairness.'” State v. Negran, 178 N.J. 73, 82 (2003) (quoting State v. Leonardis, 72 N.J. 360, 384 (1997) (“Leonardis II”)). Thus, on appeal, this Court reviews PTI decisions with “enhanced deference.” State v. Brooks, 175 N.J. 215, 225 (2002). A defendant seeking to overturn rejection from PTI must “clearly and convincingly establish” that the decision rejecting his or her application was “a patent and gross abuse of discretion.” State v. Watkins, 193 N.J. 507, 520 (2008). If a defendant rejected for PTI can prove that the denial “(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[,]” then an abuse of such discretion would “be manifest.” Bender, supra, 80 N.J. at 93.

One of the intestine aspects of this case was the affidavits submitted and the court’s decision to hold a hearing on that evidence, to which the state objected to same because they would have the undesirable capacity to convert PTI rejections into “mini-trials.”

Pretiral Intervention and the Evidentiary Hearing

The court roundly rejected defendant’s claim of entitlement to an evidentiary hearing. “As a practical matter, we agree with the State that requiring such hearings, even in limited instances, will unduly thwart the prosecutor’s discretionary functions in deciding whether to approve PTI for a particular defendant. Such fact- finding excursions before the trial court also would delay and bog down the efficient disposition of PTI applications and any related plea negotiations that might be occurring. The hearings would also force the State’s fact witnesses to bear the burdens and inconvenience of an additional testimonial appearance in the case if PTI is not granted. We discern no constitutional or statutory right to such an evidentiary hearing”

However, the appellate division panel did admonish the prosecutors’ office across the state with the following guiding commentary “when reviewing a PTI application, a prosecutor has the prerogative to completely disregard evidence proffered by an applicant that bears upon the applicable factors under the Guidelines and the PTI statute. Cf. State v. Hogan, 144 N.J. 216, 236 (1996) (analogously noting, in the context of grand jury presentations, a prosecutor’s responsibility to not overlook evidence that is “clearly exculpatory” or that “directly negates the guilt of the accused”). A prosecutor is certainly free to disbelieve statements presented by defense witnesses and to instead credit the anticipated contrary testimony of the State’s witnesses. Even so, the prosecutor should be expected, in the appropriate exercise of his or her discretion over PTI that is subject to judicial review, to examine all pertinent facts and evidence presented bearing on the PTI criteria, including the “nature of the offense,” N.J.S.A. 2C:43-12(e)(1), and the “facts of the case,” N.J.S.A. 2C:43-12(e)(2).”

Yet, the appellate division then stepped back and stated, “If there is a question of credibility to be resolved concerning the fact witnesses, the occasion for resolving that question is at trial, not in a preliminary hearing before the trial court when it is reviewing a prosecutor’s PTI denial. See Nwobu, supra, 139 N.J. at 252 (noting that “appropriate administration of the [PTI] program militates against basing enrollment upon the weight of the evidence of guilt”.) Nor should such a hearing be provided as a tactical exercise for defense counsel to obtain testimony from the State’s witnesses that might be later used for impeachment purposes at a future trial.  In sum, we reject defendant’s contention that the trial court was obligated to conduct an evidentiary hearing to resolve whether his own competing narrative of the events (and that of his two proposed witnesses) is more credible than the version of the facts provided by the police officers. We agree with the State that such a “mini-trial” would not have been appropriate.

As a result, a defendant can try as here to persuade the prosecutor with all the evidence prior to their PTI decision being rendered.  I also believe however, if a defendant believes the facts, witnesses, and his/her case are so strong then trial maybe the best bet.  If the prosecutor fails to consider the proofs of your case at the early PTI juncture then indictment ad trial may be your best bet.