PTI Appeal in New Jersey – State versus Austin

State V. Austin. Denial of Admission into PTI overturned.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In this case a defendant applied to be admitted into New Jersey’s PTI (Pre Trial Intervention) program. The prosecutor’s office in Gloucester County denied defendant’s admission and based same on defendant’s prior admission into Pennsylvania’s ARD diversionary program in 2001. This defendant’s initial charge was for shoplifting and third-degree conspiracy to commit shoplifting. The Gloucester County Prosecutors Office argued to the court that because the prior Pennsylvania charges that entitled her to ARD were considered crimes under New Jersey law they would bar her admission into a sensually a “second PTI”.

One Chance at Pre Trial Invtervention

Remember in New Jersey, defendants are only entitled to one bite of the “PTI” Apple.  In addition, because PTI is the prosecutor’s statutory alternative resolution baby, judicial review is severely limited and exists only to check the most egregious examples of injustice and unfairness when the prosecutor exercises its discretion to reject a PTI applicant. The exercise of that statutory discretion will be rarely overturned and the prosecutor’s decision will be afforded such a high level of difference which can only be overturned by clearly and convincingly showing the exercise of the prosecutor’s denial into PTI was a patent and gross abuse of discretion.  Remember, a defendant must show the prosecutor’s denial of admission into PTI was a patent and gross abuse of discretion. Patent and gross abuse of discretion is defined as that being which has “going so far wide of the mark that fundamental fairness and justice require judicial intervention”.

Appealing Denial of Entry to New Jersey PTI

If you are appealing a prosecutors denial of entry into PTI you must show that a) The prosecutor’s decision was not premised upon a consideration of all relevant factors, B) was based on consideration of a relevant factors were inappropriate factors, or c) the prosecutor’s decision amounted to a clear error  in judgment.  Before jumping over this hurdle you, as a defendant, must also show that the prosecutor abuses his discretion and that abuse subverted the goals of PTI.

In this case the Appellate Division determined that the statutory definition of ‘prior supervisory treatment’ only refers to diversionary programs in New Jersey.  Nevertheless, one of the other factors of the prosecutor’s office can use in determining whether somebody is amiable to the conditions of PTI is “their continued pattern of antisocial behavior” outlined in the PTI statute.  In this case the prosecutor’s office did not rely upon that factor in addition to the prior ARD admission when it decided to bar this defendant from the PTI program.  The Appellate Division found the Gloucester County Prosecutors Office abused its discretion when it relying solely upon the out-of-state ARD admissionas a bar to admissions. As a result the Appellate Division a remanded the case to the trial court for a new hearing to determine whether there are other statutorily recognized factors which could support the state’s denying this defendant’s admission into PTI as opposed to just the prior ARD admission.


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.

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