Criminal Statutes, Court Rules Jury Charges NJ : Proposed Amendments to R. 3:28 - Pretrial Intervention

Proposed Amendments to R. 3:28 - Pretrial Intervention – New Rules 3:28-1

to 3:28-10

1. Background

There have been many changes to the criminal laws in New Jersey since the

inception of the Pretrial Intervention Program (PTI) in 1970. When PTI was first

implemented, the New Jersey criminal laws were largely contained in Title 2A of the

New Jersey statutes. Title 2A established an indeterminate sentencing structure built on a

rehabilitative model of criminal justice. In 1979, New Jersey’s criminal law underwent a

whole-scale revision. Title 2A was replaced by Title 2C, the New Jersey Code of

Criminal Justice. Title 2C was based on a just deserts model of criminal justice. Since

its enactment in 1979 there have been numerous changes to the Title 2C Code, including

upgraded penalties for many charges and increasingly more statutes requiring the

imposition of mandatory parole ineligibility terms.1

Foremost, PTI is a diversionary program aimed at diverting first offenders from

ordinary prosecution when they are charged with less serious types of criminal behavior.

As the legal standards governing PTI have changed over the years, practices underlying

the program also have shifted. As initially designed PTI involved a shared responsibility

with the decisions of the prosecutor and the program director given equal weight. This

practice changed with the decision in State v. Leonardis (Leonardis II), 73 N.J. 360, 381-

1 In a 2007 report the New Jersey Commission to Review Criminal Sentencing noted that there had been

112 legislative changes to sentencing from 1979-2007. Of the 112 legislative changes 50 included

upgrading the degree of a crime and 39 included a mandatory minimum term of imprisonment. See

“Statutory Changes to Sentencing Under the N.J. Code of Criminal Justice: 1979 to Present,” New Jersey

Commission to Review Criminal Sentencing (September 2007).

83 (1977), which requires an enhanced standard of review of a prosecutor’s decision on a

PTI application in which the prosecutor’s exercise of discretion is subject to reversal only

if it constitutes a “patent and gross abuse of discretion.” As such, most court personnel

subscribe to the view that PTI primarily became a prosecutor-run program after

Leonardis II. Given this, many have urged that the prosecutors’ offices should assume

responsibility for PTI. This proposal does not go that far. Rather, it is designed to

recognize the preeminent role of prosecutors in the eligibility and enrollment decisionmaking

process, while maintaining court control over the entire PTI program.

Given the significant changes to the Title 2C Criminal Code, including

classifications of offenses, as well as numerous enhanced sentences and penalties that

have been enacted during the past 40 years, the judiciary decided that the time had come

to take a close look at the PTI program in the context of current criminal sentencing law.

After reviewing R. 3:28, the Guidelines for Operation of Pretrial Intervention in New

Jersey that are currently included in R. 3:28 (hereinafter “Guidelines”), and N.J.S.A.

2C:43-12, et. seq., an initial decision was made to incorporate the necessary procedures

governing the operation of PTI into the court rules. Recognizing the need to reconcile

whether the purpose of the PTI program was aligned with current practice, the

Conference of Criminal Division Managers undertook a complete in-house review of the

program and its governing procedures. The Criminal Division Managers prepared a

comprehensive proposal recommending new draft Rules 3:28-1 to -10, which, if adopted,

would incorporate the procedures for PTI into proposed court rules and eliminate the PTI

Guidelines. That proposal was subsequently reviewed and endorsed by the Conference

of Criminal Presiding Judges and the Judicial Council.2

Thereafter, Acting Administrative Director Glenn Grant referred the proposal to

the Criminal Practice Committee for its consideration. The Practice Committee formed a

subcommittee comprised of judges, prosecutors, private attorneys, defense counsel and a

representative from the Conference of Criminal Division Managers to provide

appropriate recommendations to the full Committee for consideration. The subcommittee

thoroughly reviewed the recommendations proposed in the original report, and after

significant discussion, debate and compromise, agreed with some of the original

proposals and disagreed with others. The Committee considered the recommendations of

the subcommittee. Objections and comments were expressed during the Committee’s

discussions with respect to certain proposals. The Committee respectfully submits the

following rule proposals to align the PTI program with current practice and to ensure that

resources are expended in a fair and useful fashion.

A dissent to the proposed rule amendments was filed by Richard D. Barker, Esq.,

representing the New Jersey State Bar Association, which is contained in Appendix A of

this report. This dissent was joined by Eric Breslin, Esq.; Tana McPherson, Esq.,

representing the Association of Black Women Lawyers of New Jersey; and by Mary

Ciancimino, Esq., Deputy Public Defender; Jeffrey Coghlan, Esq., Deputy Public

Defender; and John McMahon, Esq., Assistant Deputy Public Defender, the three

representatives of the Office of the Public Defender on behalf of that office. A separate

2 The Judicial Council, which is an administrative group formed in the judiciary, should be distinguished

from the Judicial Conference, procedure for considering proposed rules dealing with supervisory

treatment pursuant to N.J.S.A. 2C:43-12 to -20.

dissent to the proposed rule amendments was filed by John Cannel, Esq., which is

contained in Appendix B of this report. This dissent was joined in by Richard D. Barker,

Esq., representing the New Jersey State Bar Association; Eric Breslin, Esq.; Tana

McPherson, Esq., representing the Association of Black Women Lawyers of New Jersey;

and by Mary Ciancimino, Esq., Deputy Public Defender; Jeffrey Coghlan, Esq., Deputy

Public Defender; and John McMahon, Esq., Assistant Deputy Public Defender, the three

representatives of the Office of the Public Defender on behalf of that office.

2. Introduction

The Committee is recommending adoption of several proposed rules with an aim

to re-align the New Jersey Pretrial Intervention Program to its original purpose to divert

from prosecution first time offenders who would benefit from its rehabilitative

components. Part of the proposal involves shifting the initial approval and screening

process to the prosecutor to make a preliminary decision in certain cases where a

defendant is unlikely to be admitted into PTI, and to preclude applications from those

defendants who have traditionally been excluded from PTI, based upon prior criminal

history.

Some of the proposed changes address remedies to administrative challenges in

judiciary criminal case management offices, with a goal to ensure that the court dedicates

its resources to those cases involving first offenders who are charged with less serious

offenses. For purposes of allocating judicial resources, criminal case management will

not be required to prepare a report, on applicants facing serious charges or applicants

with substantial criminal history, until the prosecutor consents to further consideration of

the application, as those cases are typically rejected for enrollment into the program by

the prosecutor. As such, the proposed rules continue the current practice in Guideline 3

permitting certain applications to be evaluated by the criminal division if the prosecutor

consents to or jointly files the application. The following is a summary of the

Committee’s recommendations.

For eligibility to the PTI program, the proposal maintains the current age

requirement, and in appropriate cases, develops a more flexible standard for nonresidents,

to relieve undue burdens on students and travelers who are suitable candidates

for PTI. The proposal also creates categories of absolute ineligibility for PTI. Thus,

these individuals are not permitted to file PTI applications. Specifically, the proposals

preclude PTI applications from individuals who have a prior diversion or who currently

are charged with a non-indictable offense. A new category of individuals also are

precluded from filing PTI applications: persons with a prior conviction for a first or

second degree crime or a prior conviction for a third or fourth degree crime for which the

person received a prison sentence. The disqualifying prior convictions include equivalent

convictions under any other state law or federal law. This category essentially deems

ineligible, a defendant with a prior conviction for any first or second degree crime,

regardless of the sentence that was imposed, or with a prior conviction for a third of

fourth degree crime where a prison term was imposed. The Committee engaged in

lengthy debates regarding the prior conviction ineligibility criteria with views expressed

in opposition to this criteria.

As to individuals who may file applications for PTI, the rule proposals create two

categories of applicants. The first category of applicants involves individuals who may

file an application for PTI with the court, but who must obtain prosecutor consent to

consideration of that application by the Criminal Division (hereafter “prosecutor consent”

cases). This procedure is similar to the current process in Guideline 3(i) that, under

certain circumstances, requires a joint PTI application by the defendant and the

prosecutor. The second category of applicants involves individuals who do not need

prosecutor consent to consideration of the application. This group of individuals

comprise the primary target group for PTI: first time offenders who are charged with less

serious crimes. For both categories of applicants, the PTI application must be filed “at

the earliest possible opportunity, including before indictment, but in any event no later

than 14 days after the arraignment/status conference, unless good cause is shown or

consent by the prosecutor is obtained.”

Prosecutor consent is required for (1) individuals who have no prior convictions

but are currently charged with a crime for which there is a presumption of incarceration

or mandatory minimum period of parole ineligibility; (2) individuals who have a prior

conviction for a third or fourth degree crime and who were not sentenced to a term of

imprisonment for that prior offense (e.g., the defendant received a probation sentence);

and (3) defendants who are public officers or employees who are charged with a crime

that involved or touched the public office or employment. Individuals who fall within

one of these three categories must in their application include a statement of the

extraordinary and compelling circumstances that justify consideration of the application

notwithstanding the presumption of ineligibility based on the nature of the crime charged

and any prior convictions.

When an application requiring prosecutor consent is filed with the Criminal

Division, the Criminal Division shall not consider the merits of the application and shall

forward the application to the prosecutor’s office for consideration. In analyzing whether

to consent to further consideration of the application, the prosecutor “shall not be

required to consider any facts, materials, or circumstances other than the information

presented in the defendant’s application, but it shall not be an abuse of discretion for the

prosecutor to consider only those additional facts and circumstances which may include

the victim’s position on whether the defendant should be admitted into the program, that

the prosecutor deems relevant to a determination whether extraordinary and compelling

circumstances justify consideration of the application notwithstanding the presumption of

ineligibility based on the nature of the crime charged and any prior convictions.” The

prosecutor must provide its written decision to either consent or refuse to consent to

consideration of the application to the defendant, the defendant’s attorney and the

Criminal Division, within 14 days of receipt of the application.

If the prosecutor consents to consideration of the application, the application goes

through the current process for the criminal division manager and prosecutor to conduct

their evaluations and to make recommendations on enrollment into the PTI program. If

the prosecutor refuses to consent to consideration of the application, the Criminal

Division does not need to consider the application.

Where prosecutor consent is required, within ten days after receipt of the rejection,

a defendant may appeal to the criminal judge from the decision of a prosecutor to refuse

to consent to consideration of the application. The standard of appeal for prosecutor

consent cases is: “[a] defendant challenging a prosecutor’s decision to refuse to consent

to consideration of an application must establish not only that the prosecutor’s decision

was a gross and patent abuse of discretion, but that information presented in the

application and such additional information as the prosecutor chose to consider clearly

and convincingly establishes that there are extraordinary and compelling circumstances

that justify consideration of the application notwithstanding the presumption of

ineligibility based on the nature of the crime charged and any prior convictions.” There

shall be no pretrial review by an appellate court, if the rejection of the application is

upheld by the judge. Denial of an application may be reviewed on appeal from a

judgment of conviction notwithstanding that such judgment is entered following a plea of

guilty.

Certain cases do not require prosecutor consent to consideration of the application.

This category encompasses the core applicants for the PTI program – first time offenders

who are charged with less serious crimes. There are no meaningful changes in the

application and enrollment process for these individuals. When the application is filed

with the Criminal Division, the application goes through the current process for the

criminal division manager and prosecutor to conduct their evaluations and to make

recommendations on enrollment. In accordance with current practice, if a PTI

application is filed with the court, pre-indictment, the prosecutor may withhold action on

the application until the matter has been presented to the grand jury. In such cases the

prosecutor shall inform the criminal division manager, the defendant, and defendant’s

attorney of the decision on the application and enrollment within 14 days of the return of

the indictment. If the criminal division manager or prosecutor recommend against

enrollment, the defendant may challenge those decisions by appealing to the criminal

judge.

Once a defendant is recommended for admission into the PTI program, such

enrollment shall not be conditioned upon either informal admission or entry of a guilty

plea. Rather, “[e]nrollment of defendants who maintain their innocence is to be

permitted unless the defendant's attitude would render pretrial intervention ineffective.”

The current postponement period and timeframe to review and dispose of a PTI matter at

the conclusion of postponement remain intact.

The proposal updates references to the roles of the vicinage probation officer and

criminal division manager in the application, enrollment, postponement, and disposition

process. The proposal codifies and updates the current protocols regarding judges who

can handle PTI, restitution and community services requirements for PTI, confidentiality

of PTI records and statements, and written reasons and decisions regarding PTI

applications, enrollments, and dispositions. Finally, the proposal recommends deletion of

the current PTI Guidelines. To the extent the Committee deemed appropriate, the

Guidelines have been incorporated into the rule proposals.

3. Recommendation – Procedure for Adoption

The Committee recommends that the rule amendments being proposed in this

report to revise the current process and procedures for the PTI program be presented for

consideration in accordance with the protocol set forth in N.J.S.A. 2C:43-14 to -20.3 If

the proposals being recommended herein are subsequently adopted, the Committee also

recommends review of other court rules for any necessary conforming amendments.

4. Proposed Revision of R. 3:28

a. R. 3:28-1 – Eligibility for Pretrial Intervention

R. 3:28-1 is a new rule. The rule sets forth eligibility requirements for persons

applying for the PTI program.

(1) R. 3:28-1 - Paragraph (a) – Age Requirements

Paragraph (a) governs the age requirements for PTI applicants and with some restructuring,

was taken from Guideline 3(a). This paragraph sets forth the basic premise

that PTI is only available for persons 18 years of age or over. It retains the exception that

PTI is available for juveniles who are treated as adults pursuant to R. 5:22-1 or R. 5:22-2.

(2) R. 3:28-1 - Paragraph (b) – Residence Requirements

Paragraph (b), which addresses the residence of the applicant, is derived from

current Guideline 3(b). PTI Guideline 3(b) states: “New Jersey’s PTI program is

designed to address crime in New Jersey. Only those defendants are ineligible who

3 In the past, the Supreme Court has followed the procedures set forth in N.J.S.A. 2C:43-14 to -20 when

recommending changes to the PTI program. The Judicial Conference includes delegates from the

Supreme Court, the Appellate Division of the Superior Court, the judges of the Superior Court, the judges

of the municipal courts, the surrogates, the State Bar Association, the county bar associations, the Senate

and General Assembly, the Attorney General, the county prosecutors, the law schools of this State, and

members of the public. N.J.S.A. 2C:43-15.

reside such distances from New Jersey as to bar effective counseling or supervisory

procedures.” The Commentary to Guideline 3(b) further explains that residents of other

States, who are charged with a crime in New Jersey, may, with the approval of the

prosecuting attorney, the designated judge, and the Administrative Office of the Courts,

be permitted to participate in an out-of-state program while enrolled in PTI. The

Committee is recommending that paragraph (b) of proposed R. 3:28-1 provide as follows:

(b) Residence. Non-residents are eligible to apply for

the pretrial intervention program but may be denied

enrollment unless they can demonstrate that they can receive

effective counseling or supervision.

In reaching this conclusion, the Committee discussed whether persons residing

out-of-state can effectively be counseled and supervised by New Jersey probation

officers. It recognized that R. 1.106 of the Interstate Compact for Adult Offender

Supervision provides that “persons subject to supervision pursuant to a pre-trial

intervention program, bail, or similar program are not eligible for transfer under the terms

and conditions of this compact.” The Committee was in agreement that non-residents

who cannot receive effective supervision or counseling would be ineligible for PTI. The

members also believed that eligibility for PTI should not be tied to the distance between

the defendant’s residence and New Jersey, and a requirement for in-person reporting.

Precluding otherwise eligible non-residents from PTI solely because of the distance

between their residence and New Jersey would be burdensome on students, travelers and

other individuals who reside out-of state, particularly when there is little need for inperson

reporting. For example, an out-of-state defendant may successfully complete PTI

by meeting the required reporting requirements, via telephone, and making arrangements

to pay the appropriate fines and penalties. Excluding these individuals from PTI would

require placing the cases on a trial calendar, and unnecessarily expend resources and time

on matters that could normally be disposed of early in the case through the PTI program.

As such, the Committee sought to clarify that for non-residents, the distance

between a defendant’s residence and New Jersey is not a factor in determining eligibility

for PTI. If a Florida resident can receive effective supervision or counseling, that person

should not be deemed ineligible from the PTI program, solely because of the distance

between Florida and New Jersey. Rather, non-residents should be eligible for PTI as long

as effective supervision and counseling can be accomplished.

Typically it is not until after a PTI application is filed that an assessment is made

to ascertain the appropriate level of supervision or the applicant’s need for counseling or

treatment. Enrollment into the PTI program will be dependent upon whether such

requirements can be accomplished by a non-resident. Further, the Committee was

informed that with respect to authorization for a non-resident to participate in an out-ofstate

program, the provisions of the Commentary to Guideline 3(b) are not being followed

inasmuch as the AOC is not being asked for its approval for a non-resident’s admission

into PTI under these circumstances. Going forward, if the Criminal Division and

prosecutor recommend enrollment of a non-resident into the PTI program, the nonresident

should be made aware of the counseling or supervision requirements before he or

she decides to enroll into the program. The non-resident should also be informed that

enrollment into PTI will be contingent upon the person’s ability to receive effective

counseling or supervision.

In sum, the proposed language in paragraph (b) of R. 3:28-1 addressing residence

provides that non-residents should not be precluded from applying to the PTI program,

but may be denied enrollment unless they can demonstrate that they can receive effective

counseling or supervision. Additionally, prior to enrollment into the PTI program, nonresidents

should be made aware of any supervision, counseling or treatment requirements

in their particular cases.

(3) R. 3:28-1 - Paragraph (c) – Absolute Bars/Ineligibility for PTI

and Paragraph (d) – Situations Requiring Prosecutor Consent to

Consideration of the Application

a) Overview

The Committee is recommending adoption of paragraphs (c) and (d) of R. 3:28-1

in an effort to streamline the PTI screening and application process with respect to

offenders who are highly unlikely to be enrolled into the PTI program. By carving out

clear eligibility standards, the proposal fosters uniformity with a focus on the purpose of

PTI, namely, a rehabilitation program designed primarily for first offenders. The goal is

to increase overall efficiency of the PTI program by dedicating the necessary resources to

defendants who would benefit most from participation in the program. The proposed

revisions will also reduce unnecessary paperwork and limit the expenditure of valuable

judiciary resources, upfront, under certain circumstances set forth in the rule. Thus, the

eligibility standards in paragraphs (c) and (d) focus upon those factors, identified by the

Committee, that, in practice, have been the basis for exclusion from the PTI program: the

defendant’s prior convictions, the seriousness of the present charge, and the potential

sentence that could be imposed if the defendant was convicted of the present charge.

In the instances set forth in paragraph (c) a defendant is automatically precluded

from applying for PTI. Subsections (c)(1) and (c)(2) are derived from the Guidelines and

more fully describe ineligibility for defendants who have a prior diversion or who are

currently being charged with a non-indictable offense. Representing a change from the

current Guidelines, subsection (c)(3) focuses on defendants with certain prior

convictions. If adopted, subsection (c)(3) will preclude applications from defendants

with prior convictions for first or second degree crimes or prior convictions for any crime

for which the defendant was sentenced to a term of imprisonment.4 This category

includes equivalent prior convictions from other state and federal jurisdictions. By

limiting PTI eligibility for defendants who have certain prior convictions, subsection

(c)(3) seeks to conform the PTI program to its original purpose to focus on first

offenders.

Paragraph (d) specifies situations where the defendant must first obtain consent

from the prosecutor before the PTI application is considered by the court. Subsection

(d)(1) addresses defendants who have no prior convictions but are currently charged with

a crime that is subject to either a presumption of incarceration or a mandatory minimum

sentence. Subsection (d)(2) addresses defendants who have prior convictions, but are not

automatically precluded from PTI pursuant to subsection (c)(3); namely defendants

previously convicted of third and fourth degree crimes where a sentence of imprisonment

4 This category in subsection (c)(3) essentially deems ineligible, a defendant with a prior conviction for

any first or second degree crime, regardless of the sentence that was imposed or a prior conviction for a

third or fourth degree crime where a prison term was imposed. Eligibility criteria for defendants with

prior convictions for third or fourth degree crimes where a sentence of imprisonment was not imposed

(e.g., where a defendant was sentenced to probation) is addressed in proposed subsection (d)(2) of R.

3:28-1.

was not imposed. Subsection (d)(3) addresses defendants who are public officers or

employees and are charged with a crime or crimes that involved or touched their public

office or employment.

While a majority of the Committee is in favor of the standards set forth in

paragraphs (c) and (d), a dissenting view also was strongly expressed. From the

standpoint of some practitioners the current eligibility criteria and application process for

the PTI program operate effectively and, therefore, should not be changed. Additionally,

views were expressed that PTI eligibility criteria is a substantive area for legislative

action, as opposed to a procedural area appropriate for the court rules. Finally,

opposition was voiced that the proposed rules that preclude and refine PTI eligibility

criteria are inconsistent with the PTI statute and the current Guidelines, and, in particular,

go beyond the language of the current law.

b) Historical Perspective

In developing the eligibility criteria in paragraphs (c) and (d), the Committee

discussed the historical background of PTI and recognized that consideration of

procedural bars to PTI for defendants charged with serious crimes or who have prior

convictions is not new. Over time there have been several recommendations to improve

the efficiency of the PTI program, including proposals to bar admission of persons who

are facing serious charges or who have a prior criminal record. See Judicial Conference

of New Jersey: An Approach to the Expeditious Processing of Criminal Cases, 105

N.J.L.J. 521, 534 (1980); Judicial Conference Task Force on Speedy Trial, Report of the

Committee on Delay Points and Problems Affecting Speedy Trial, 117 N.J.L.J. 747, 765

(1986), and Report of the Supreme Court Committee on Criminal Practice 1988, 122

N.J.L.J. 97, 114 (1988).

Specifically, in 1980, the report entitled the Judicial Conference of New Jersey:

An Approach to the Expeditious Processing of Criminal Cases, 105 N.J.L.J. 521 (June 5,

1980), detailed recommendations of a Task Force with an emphasis on eliminating

unwarranted delays resulting from the processing of PTI applications. In 1980, the Task

Force recognized that:

[s]ignificant delays in the criminal process are caused by

applications for PTI and challenges to decisions not to permit

enrollment. Offenders charged with serious crime[s] and

recidivists are almost invariably rejected by prosecutors due

to the nature of these offenses and the defendant’s pattern of

offenses. If defendants who are highly unlikely to receive

PTI were excluded from the PTI application process,

substantial expenditures of energy and time in the screening

process would be saved. Moreover, since appeals of

rejections are rarely successful, the time and effort required

by the appellate process only delays the ultimate adjudication

of the matter without countervailing benefits.

[Judicial Conference of New Jersey: An Approach to the

Expeditious Processing of Criminal Cases, 105 N.J.L.J. at

534.]

As a remedy, the Task Force recommended that certain offenders be ineligible to

apply for PTI, except upon joint application of the defendant and the prosecutor: (1)

defendants currently charged with first or second degree crimes; (2) defendants with any

criminal convictions during the preceding five years who have received either sentences

to incarceration or probation for those prior convictions; (3) defendants with a prior

record of first or second degree crimes or high misdemeanors; and (4) defendants

presently charged with sale of or possession with intent to distribute controlled dangerous

substances of the most serious grades.

In 1981, the Report of the Supreme Court Committee on Pretrial Intervention, 108

N.J.L.J. 485 (1981) was issued. That Committee reviewed the Task Force report and

among its recommendations, the Committee proposed that the following defendants

should not be considered for enrollment into PTI except upon joint application by the

defendant and the prosecutor: (1) defendants with prior criminal convictions whose term

of probation, incarceration or parole expired during the preceding 5 years; (2) defendants

with a prior record of first or second degree crimes; or (3) defendants charged with a first

or second degree crime or a serious drug offense. The 1981 Committee Report cited to

N.J.S.A. 2C:43-12(a) as authority for this proposal. See 108 N.J.L.J. at 487. PTI

Guideline 3(e) was amended the following year to implement this recommendation. See

R. 3:28 (1982). Thereafter, the 1986 Judicial Conference Task Force on Speedy Trial

Report, 117 N.J.L.J. 747 (1986) examined delays in case processing and contained

several recommendations regarding eligibility for PTI. Three key recommendations were

that: (1) there be an automatic exclusion for persons previously convicted of first or

second degree crimes; (2) persons presently charged with first or second degree crimes,

or sale or dispensing Schedule I or II narcotic drugs by persons not drug dependent

should not be allowed to apply to PTI unless they first receive the prosecutor’s consent;

and (3) methods to pre-screen applications should be developed. The Report of the

Criminal Practice Committee (1988), 122 N.J.L.J. 97 (July 14, 1988) also contained

recommendations for streamlining applications for PTI. Among the recommendations in

1988 were the following eligibility criteria that: (1) persons convicted of a prior offense

be excluded from applying to PTI; (2) persons charged with a first or second degree

crime be excluded from applying to PTI; and (3) corporate defendants should be

excluded from applying to PTI.

Currently, Guidelines 3(e) (Prior Record of Conviction) and (f) (Parolees and

Probationers) and the corresponding Commentary create a rebuttable presumption against

enrollment into PTI for persons who have a prior record of criminal convictions.

Guideline 3(e) recognizes that while PTI “is not limited to ‘first offenders’, defendants

who have been previously convicted of a criminal offense should ordinarily be

excluded.” Specifically, persons having a prior conviction for a first or second degree

crime, or having completed a term of probation, incarceration or parole within five years

prior to the application, shall ordinarily not be considered for enrollment in PTI unless

there is joint consent by the defendant and the prosecutor. This Guideline has been

upheld. See State v. Collins, 189 N.J. Super. 190, 196 (App. Div. 1981), aff’d, 90 N.J.

449 (1982) (the Supreme Court affirmed the Appellate Division decision to remand the

matter for the trial court to enable the prosecutor to expand the reasons for PTI denial,

and advised that if the only reason for denial is the defendant’s prior conviction (simple

possession), the court shall review in accordance with State v. Dalglish, 86 N.J. 503

(1981), in which the Court set forth the factors for determining whether there was a

patent and gross abuse of discretion by the prosecutor); State v. Gray, 215 N.J. Super.

286, 291 (App. Div. 1987), (noting that under Guideline 3(e) diversion is unquestionably

available to a repeat offender; however, where the “criminal history includes a conviction

or convictions of a serious nature [a defendant] should ordinarily be excluded,” and citing

to State v. Collins, 189 N.J. Super. at 196; State v. Brooks, 175 N.J. 215 (2002) (upheld

the prosecutor’s rejection of PTI based on the defendant’s prior juvenile and adult arrest

record).

c) Administrative Challenges In Light of Increased

Statutory Penalties

The application of the Guidelines in light of increased statutory penalties, has

continued to result in additional, and in some circumstances unnecessary, work for the

criminal division manager’s office to prepare reports and process other paperwork,

upfront, in cases where PTI enrollment is ultimately rejected by the prosecutor’s office.

Allocation of judicial resources at the outset of the application process in situations where

defendants are routinely not enrolled in the PTI program not only misallocates the

expenditure of those important resources, but also frequently causes delays in the

disposition of the case. Post-Leonardis II when a defendant is facing a serious charge or

has a prior record, the time expended by criminal court staff on review and evaluation of

the application, including interviews and report preparation, often has little or no effect

on the outcome of the application decision that is made by the prosecutor, i.e., whether

the defendant is enrolled into the PTI program. The decision on enrollment into PTI rests

predominately with the prosecutor.

From an administrative standpoint, the data bears this out. During calendar year

2013, 168 persons applied to PTI who had a prior record. Of those, none were admitted.

Of the 168 persons who applied, 13 had a prior conviction for a first or second degree

offense. Additionally, during calendar year 2013, there were 1441 applications for

admission into PTI where a defendant was charged with a first or second degree offense.

Of those 486 were admitted into PTI. Although the majority of the applications involved

second degree crimes, 103 applications, and 22 admissions were for first degree crimes.

From the criminal case management standpoint, it is estimated that it would take 6 fulltime

persons to process and write reports on the 955 applications that were denied

admission into PTI. In that sense, the challenges with respect to delays in case

processing, and the allocation of judiciary resources upfront to process PTI applications

that have been expressed in the historical reports over the past 30 years still exist today.

In fact, those challenges, perhaps are exacerbated with changes to the criminal sentencing

laws. Defendants who previously may have been ideal candidates for PTI, are now

exposed to heightened penalties and mandatory minimum terms of imprisonment, and

therefore, are being rejected for enrollment by the prosecutor.

As such, the Committee recognized that there are a number of compelling reasons

for limiting eligibility for PTI to certain applicants. Foremost, as a diversionary program,

PTI is aimed at diverting first offenders from ordinary prosecution when they are charged

with less serious criminal behavior. Simply put, PTI was designed for those individuals

demonstrating amenability to the rehabilitation process. Additionally, regarding criminal

staff resources, it is estimated that it takes two court employees to process and write

reports on the 168 cases (cited above) where the applicant had a prior record, and, as

stated above, 6 full-time court employees to process and write reports on the 955

applications which were denied admission because the defendant was facing charges for a

first or second degree crime. Certainly substantial expenditures of energy and resources

can be saved by revising eligibility criteria, shifting the time in the application process

when criminal case management is required to conduct the evaluation, and modifying the

extent of the evaluation, particularly in those cases which have, over the years, been

denied enrollment into the PTI program.5 As such, paragraphs (c) and (d) of proposed R.

3:28-1 recommend several criteria, identified by the Committee, for PTI eligibility based

upon the nature of the defendant’s current charge or charges and the potential sentence

that can be imposed, as well as, the defendant’s prior criminal convictions. Although the

Committee was in favor of the standards set forth in paragraphs (c) and (d), a dissenting

view also was strongly expressed.

With this background in mind, the Committee is proposing the rule revisions that

follow.

(4) R. 3:28-1 - Paragraph (c) – Absolute Bars/Ineligibility for PTI

Paragraph (c) sets forth three categories of absolute bars from eligibility for PTI:

(1) individuals who have prior diversions; (2) individuals who are being charged with

non-criminal offenses; and (3) individuals with certain prior convictions. Individuals

who fall within at least one of these categories will not be eligible to apply for admission

into the PTI program. The bars to admission into PTI discussed in subsections (c)(1),

(c)(2) and (c)(3) are designed to streamline the PTI application process. Subsections

(c)(1) and (c)(2) are derived from the Guidelines and more fully describe current

ineligibility for defendants who have a prior diversion or who are being charged with a

non-indictable offense. Subsection (c)(3) clarifies the categories of individuals who will

5 See State v. Green, 413 N.J. Super. 556, 561 (App. Div. 2010).

not be eligible for PTI due to the circumstances of the defendant’s prior criminal history.

In particular, it precludes persons who have a prior conviction for a first or second degree

crime or a prior conviction for any indictable offense, which resulted in a sentence to a

term of imprisonment. It delineates eligibility criteria in an effort to address common

concerns that have been expressed in numerous reports over the years regarding the time

and resources expended for individuals to proceed through the entire PTI process, i.e.,

application, report prepared by the criminal division manager’s office, review by the

prosecutor, written reasons for rejection, and possible appeal by the defendant, in cases

where the defendant has virtually no chance of being admitted into the PTI program.

a) R. 3:28-1 - Subsection (c)(1) – Prior Diversion

Paragraph (c)(1) would bar PTI applications from persons with a prior diversion,

such as, a prior participation in PTI, conditional discharge or conditional dismissal in

New Jersey or a diversion for a crime or felony committed in another state or under

federal law. This bar primarily is contained in present Guidelines 3(g) and (h), except as

it relates to diversions in other states or under federal law. In addition, N.J.S.A. 2C:43-

12(g), adopted subsequent to R. 3:28 and the Guidelines, contains a bar against admission

for defendants having a prior diversion. See State v. Collins, 180 N.J. Super. 190 (App.

Div. 1981), aff’d, 90 N.J. 449 (1982) (a prior PTI admission bars a subsequent PTI

admission); State v. Johnson, 282 N.J. Super. 296 (App. Div. 1995) (bar applies also to

prior conditional discharge pursuant to N.J.S.A. 2C:36A-1); State v. McKeon, 385 N.J.

Super. 559 (App. Div. 2006) (the term supervisory treatment, found in N.J.S.A. 2C:43-

12(g), referred to diversionary programs under N.J.S.A. 2C:43-12 and to conditional

discharge under N.J.S.A. 24:21-27 and 2C:36A-1, not to diversionary programs under the

laws of other states); and State v. O’Brien, 418 N.J. Super. 428 (App. Div. 2011)

(prohibiting any person previously placed into supervisory treatment under the

conditional discharge statute from subsequent admission into PTI, whether or not the

conditional discharge is later vacated). More recently, effective January 1, 2014,

N.J.S.A. 2C:43-13.1, et. seq., established a conditional dismissal program for first time

offenders charged with disorderly persons offenses (non-indictable offenses) that are

normally disposed of in the Municipal Courts. Thus, the proposed language in subsection

(c)(1) codifies the current Guidelines and legislation with respect to prior diversions in

New Jersey to provide that a person who was previously placed on PTI, conditional

discharge or conditional dismissal is precluded from applying for PTI. It also clarifies

that a defendant with a prior out-of-state or federal diversion for a felony or crime is

precluded from applying for PTI in New Jersey.

b) R. 3:28-1 - Subsection (c)(2) – Non-Indictable Matters

Subsection (c)(2) would bar PTI applications from persons who are currently

charged in a non-indictable matter, such as, a disorderly persons offense, a petty

disorderly persons offense, an ordinance or health code violation or a similar violation.

This language, slightly reworded, is from Guideline 3(d). Presently, PTI Guideline 3(d)

does not exclude persons from PTI who are charged with disorderly persons or petty

disorderly persons offenses, rather it provides that defendants should not be eligible for

enrollment if the likely disposition would result in a suspended sentence without

probation or a fine. On the other hand, Guideline 3(d) unequivocally excludes persons

from PTI who are charged with ordinance, health code or other similar violations. The

proposed language for subsection (c)(2) would mirror the current practice, which is that

persons who are charged with non-indictable offenses (i.e., municipal court matters)

cannot apply for PTI. The practice of excluding non-indictable offenses from the PTI

program recognizes that PTI was never given adequate resources to allow for admissions

on municipal court matters.6 Moreover, PTI does not apply to motor vehicle violations

and offenses under Title 39 of the New Jersey statutes. State v. Negren, 178 N.J. 73, 83

(2003). Currently, there are diversion programs for individuals charged with nonindictable

offenses. Persons charged with non-indictable drug offenses can be diverted

via conditional discharge pursuant to N.J.S.A. 2C:36A-1. Individuals charged with

disorderly persons offenses can be diverted via conditional dismissal pursuant to N.J.S.A.

2C:43-13.1, et. seq.

c) R. 3:28-1 - Subsection (c)(3) – Prior Convictions for First

or Second Degree Crimes or Any Other Crime with a

Sentence to a Term of Imprisonment

Subsection (c)(3) would deem persons with certain prior convictions ineligible for

the PTI program. The language in subsection (c)(3), being proposed by the Committee,

creates an absolute bar to admission into PTI for (1) individuals who have previously

been convicted of any first or second degree offense in New Jersey or its equivalent

under the laws of another state or the United States, regardless of the sentence that was

imposed, and (2) individuals who have been convicted of any other indictable offense in

6 The Report of the Supreme Court Committee on Criminal Practice, 111 N.J.L.J. 665, 666 (1983)

included a recommendation to expand PTI to include admission for non-indictable offenses as soon as it

was financially feasible.

New Jersey or its equivalent under the laws of another state or the United States for

which the person was sentenced to a term of imprisonment.

The Committee recognized that this is not the first time that a recommendation has

been made to bar admission of persons into PTI who have a prior record. See Judicial

Conference of New Jersey: An Approach to the Expeditious Processing of Criminal

Cases, 105 N.J.L.J. 521, 534 (1980); Judicial Conference Task Force on Speedy Trial,

Report of the Committee on Delay Points and Problems Affecting Speedy Trial, 117

N.J.L.J. at 765 (1986), and Report of the Supreme Court Committee on Criminal Practice

1988, 122 N.J.L.J. at 114 (1988). Currently, Guideline 3(e) creates a rebuttable

presumption against enrollment by the fact of a prior conviction, with a heavier onus

“placed upon defendants whose prior conviction is of a first or second degree crime or

who have completed a term of imprisonment, probation or parole within the five-year

period immediately preceding the application for diversion.” For those defendants,

admission to the program is ordinarily dependent upon the prosecutor joining in the PTI

application.

While the current Guidelines to R. 3:28 do not per se bar admission into PTI for

persons with the prior convictions described in proposed subsection (c)(3), in practice,

these types of cases are typically denied entry into PTI. As recognized in the 1981

Supreme Court Report on Pretrial Intervention and Guideline 3(e), “a prior criminal

record may be indicative of a behavioral pattern not conducive to short-term eligibility.”

Often defendants with a prior record for first or second degree crimes are not admitted

into the PTI program because of the seriousness of the prior conviction for which the

defendant most likely served a prison sentence. Moreover, because sentences for third

and fourth degree convictions typically result in probation, if a sentence of imprisonment

was imposed for a prior conviction for a third or fourth degree crime, the sentencing court

must have found that the nature and circumstances of the offense and the applicant’s

criminal history were such that imprisonment was warranted. Alternatively, the prior

third or fourth degree crime, itself, must have been serious enough to statutorily require a

prison term. See N.J.S.A. 2C:44-1(e). Either way, the Committee is of the view that

defendants with prior convictions for first or second degree crimes or prior convictions

for third or fourth degree crimes where a prison term was imposed are not ideal

candidates for a rehabilitation program like PTI. Thus, the proposed language in

subsection (c)(3) merely recognizes the current practice of excluding defendants with

certain prior convictions from PTI, along with the significant role of the prosecutor in

determining whether a case is appropriate for PTI diversion. Furthermore, enrollment

criteria for parolees and probationers into the PTI program that is contained in Guideline

3(f) has not been separately categorized in this proposal because these persons would fall

under subsection (c)(3) or paragraph (d) based upon their prior convictions.

Although the Committee recommends adoption of the proposed language in

paragraph (c)(3), strong opposition, was expressed by some members that the current PTI

process should not be changed to create new categories of offenses for which a defendant

is ineligible to apply for PTI.

Despite the objections raised, in the Committee’s view, current practice, which has

evolved with relevant case law and the enactment of legislation enhancing criminal

penalties, justifies the proposed bars to PTI admission that are set forth in subsection

(c)(3).

(i) Exception for Remoteness of a Prior Crime

The Committee explored whether the automatic bar in subsection (c)(3) should

allow for discretion, in exceptional cases, to permit a defendant to file a PTI application

when a disqualifying prior conviction occurred a significant period of time before the

most recent offense. Guideline 3(e) provides that “defendants who have at any prior time

been convicted of a first or second degree crime or who irrespective of the degree of the

crime have completed a term of probation, incarceration or parole within five years prior

to the date of application for diversion shall ordinarily not be considered for enrollment in

PTI except on joint application by the defendant and the prosecutor.” To that end, the

Committee considered whether remoteness language should be included in the rule,

similar to the language in Guideline 3(e). Under such language, if the prosecutor and

defense attorney reached an agreement, there would be some discretion to admit a person

into PTI, even if that individual has a certain prior conviction, so long as there is some

distance of time between the commission of the most recent offense and the conviction

for the prior crime.

The Committee explored developing various timeframes, such as a 10 or 15 year

time period between the date of the prior conviction and the date of the present crime.7

For example utilizing the 10-year timeframe, if the prior conviction occurred in the 10

years preceding the current offense, the defendant would be automatically barred from

7 The remoteness timeframe set forth in the “Three Strikes Act,” N.J.S.A. 2C:43-7.1, is 10 years.

admission. If, however, the prior conviction occurred more than 10 years before the most

recent offense, the defendant would not automatically be barred from filing an

application for the PTI program. Rather, there would be discretion for the prosecutor to

consent to the application.

Among its discussions, the Committee considered including a remoteness

exception only for those individuals, falling under subsection (c)(3), who have a prior

conviction for a third or fourth degree offense for which the person was sentenced to a

term of imprisonment. However, the language would not allow an exception for

remoteness if the prior conviction was a first or second degree crime. Another suggestion

discussed was that the proposed language in subsection (c)(3) be moved to paragraph (d)

(discussed infra), and to include remoteness language. Doing so would give the

prosecutor discretion to allow defendants to apply to PTI based upon the remoteness of

the prior conviction, rather than barring individuals with the prior convictions listed in

subsection (c)(3) from applying at all.

The following reasons in support of including remoteness language in subsection

(c)(3) were asserted by some Committee members: (1) there are several collateral

consequences for defendants who are not accepted to PTI and end up with a criminal

conviction; (2) unequivocally excluding persons who fall within subsection (c)(3)

eliminates discretion of prosecutors to consent to the application or enrollment, if unique

circumstances exist for that person or case; and (3) the remoteness exception enables

prosecutors and defendants to resolve cases earlier in the process. These members

recognized that while cases where a remoteness exception would apply will be rare, those

cases should fall within prosecutorial discretion, rather than be categorically excluded

from the PTI program.

A concern voiced in opposition to including remoteness language in subsection

(c)(3) was that including such language would “open the door” for too many defendants

to apply for PTI, rather than just exceptional cases. For example, persons who have prior

convictions for first or second degree offenses will be able to continue to apply, although

enrollment will more than likely be denied by the prosecutor. From an administrative

perspective, criminal case management will still be responsible for preparing a report for

those cases, which in all likelihood will be denied enrollment by the prosecutor.

In light of these discussions, the Committee was opposed to adding language to

the rule, which would allow for consideration of the remoteness of the prior crime. Most

members were of the view that the PTI program was not designed to divert individuals

who have a prior conviction for a first and second degree crime or a prior conviction for

an indictable crime where a sentence to imprisonment was imposed. A minority view

was expressed to include remoteness language in paragraph (c)(3) to afford flexibility for

admission in certain cases. Alternatively, the minority expressed that the language in

paragraph (c)(3) should include remoteness language and also be moved to paragraph (d)

(discussed infra) in which the prosecutor would consent to the application and consider

remoteness of a prior conviction before the application is filed with the criminal division.

By a narrow majority the Committee disagreed with including remoteness in

subsection (c)(3). It is recommending that subsection (c)(3) provide an automatic

exclusion from PTI for individuals with the prior convictions described therein,

regardless of the length of time between the present offense and the prior crime.

(5) R. 3:28-1 - Paragraph (d) – Prosecutor’s Consent to

Consideration of the PTI Application

Paragraph (d) of the proposal sets forth the categories of individuals who are

ineligible for PTI unless the prosecutor first consents to consideration of the PTI

application by the Criminal Division. The Committee is recommending that for the

category of cases that fall within paragraph (d), the application should first be screened

by the prosecutor’s office for consent before the criminal division manager’s office

conducts an evaluation on the merits of the application. Under this streamlined process,

the defendant would be required to include a statement of the extraordinary and

compelling circumstances that justify the application and admission directly to the

prosecutor. Court staff would then conduct a more meaningful evaluation after a

preliminary decision has been made by the prosecutor that the application be processed.

In the circumstances specified in subsections (d)(1), (d)(2), and (d)(3) the

prosecutor must consent to the PTI application before it is considered by the Criminal

Division. After consent is provided, the application is then evaluated by the Criminal

Division and a recommendation is forwarded to the prosecutor. Upon receipt of the

Criminal Division’s evaluation, the prosecutor can then determine whether to consent or

object to the enrollment of the defendant into the PTI program.8 If the prosecutor refuses

to consent to consideration of the application by the Criminal Division, the application is

8 The procedures and timeframes for the prosecutor to consent to consideration of the application or for

the defendant’s enrollment into PTI and for the criminal division to complete its evaluation are more fully

set forth in proposed R. 3:28-3.

not evaluated further by the court, and the defendant has an opportunity to appeal.9 Thus,

for the categories of offenses that fall within subsection (d)(1), (d)(2), and (d)(3), the

Committee’s proposal creates a new process.

The prosecutor has substantial veto power with respect to a defendant’s enrollment

into PTI. In essence, the proposal recognizes that in practice, after the Leonardis II

opinion, unless the prosecutor agrees that a defendant should be enrolled into PTI, in all

likelihood the person will not be admitted into the program. Moreover, a recent

Appellate Division opinion noted that “diversion into a PTI program is a quintessentially

prosecutorial function.” State v. Randall, 414 N.J. Super. 414, 419 (App. Div.), certif.

denied, 203 N.J. 437 (2010).

Moreover, the concept of obtaining prosecutor approval before criminal staff

conducts an evaluation is not novel. In State v. Rosario, 237 N.J. Super. 63, 66-67 (App.

Div. 1989), the court upheld the PTI program, set forth in Camden County’s Delay

Reduction Plan for the Criminal Process (Speedy Trial Program), which was approved by

the Supreme Court. The Camden County PTI program prescribed prosecutorial review

once the application for diversion was filed with the program director, whereupon if the

prosecutor did not reject the application, it would then be referred to the Camden PTI unit

for review and action. Further, in Rosario the court noted that the “sense of the plan then

is to recognize the prosecutor’s control on the diversion issue” by avoiding “referral to

the PTI program director because a prosecutor’s rejection takes precedence over any

favorable decision by the director.” Id. at 67. In defining the PTI director’s role, the

9 The procedures and time frames for a defendant to appeal are set forth in proposed R. 3:28-6.

Appellate Division stated that it is the defendant’s responsibility to present all the facts

and materials in support of the application and that the director’s role is not to marshal

evidence beyond what the defendant submits; a PTI application is not “analogous to a

pre-sentence report.” Id. at 67-68.

With respect to the scope of the proposal, the Committee recognized that the

proposed revisions in paragraph (d) go beyond State v. Green, 413 N.J. Super. 556, 561

(App. Div. 2010), where the Appellate Division concluded that the Criminal Division

cannot simply “defer to the prosecutor in the sense of declining in advance to give any

consideration to the merits of a defendant’s application unless the prosecutor joins in the

application.” The Green court explained that the Criminal Division must consider the

application and make a recommendation, “even if that evaluation is expressed in a very

brief recommendation adopting the prosecutor’s rationale for rejecting the application.”

Id. at 560. In addition, with regard to Guideline 3 and the offenses that create a

rebuttable presumption against eligibility for PTI admission, the Green court noted that

while the Criminal Division must consider the application and provide a recommendation

based on that consideration, the PTI staff does not have to “engage in a full work-up of

every application, including an in-depth interview with every defendant where under the

Guidelines there is a rebuttable presumption against eligibility.” Ibid.

In this vein, according to the proposed language in paragraph (d), the Criminal

Division Manager (PTI Director) will still need to provide a recommendation, based upon

the circumstances of the case. However, for cases that fall within subsection (d), such

reports will not be prepared unless the prosecutor has consented to consideration of the

application. Recognizing the role of the prosecutor in the decision-making process and

the deference that is given to that decision, paragraph (d) is designed to streamline the

screening and application process for PTI by limiting the time and resources expended by

court staff, upfront, in cases that may be rejected by the prosecutor. Such a shift in

procedure, will allow the criminal division to dedicate the necessary resources to the core

individuals that the PTI program was designed to address, those first offenders of less

serious crimes. As such, the proposal will require that in certain circumstances, listed in

the proposed rule, the prosecutor must consent to consideration of the PTI application

before the criminal division conducts its review and evaluation of the matter.

Some members were opposed to this change in procedure to eliminate criminal

case management involvement during the beginning stages of the PTI process and

granting the prosecutor the sole authority to permit the application to be fully considered.

Specifically, there was strong opposition expressed to a rule recommendation that would

not require the criminal division to complete its evaluation before the prosecutor decides

whether to consent to consideration of the PTI application. Members expressed that

judiciary criminal case management represents a neutral and detached entity to gather

pertinent information, during the PTI application process. By interviewing the defendant

and making a recommendation regarding appropriate candidacy for PTI, criminal case

management often sheds light on the case, which can assist the prosecutor in the

decision-making process. Concerns were expressed that if criminal case management is

not gathering that information, the prosecutor’s office may not have enough information

to make an appropriate decision on whether to consent to the application.

The Committee discussed that it should be the responsibility of defense counsel, as

opposed to criminal case management, to present appropriate factors to the prosecutor to

justify consent to consideration of a defendant’s PTI application in this narrow class of

cases. The Committee discussed, however, that defendants and defense attorneys may

have limited, if any, access to certain information in support of compelling reasons that is

available to criminal case management, particularly at this early stage of the proceedings.

Therefore, concern was expressed that defendants and defense attorneys may not be in a

position to present ample compelling reasons to the prosecutor to justify consent to

consideration of the PTI application. The Committee also discussed that it was unclear

whether prosecutors would rely on statements from defendants to support compelling

reasons. Moreover, because the PTI application is filed in a pending case, it is unlikely

that a defense attorney will allow a client to speak to someone in the prosecutor’s office

about a PTI application.

In light of the discussions above, the Committee is proposing the rule revisions

that follow.

a) R. 3:28-1 - Subsection (d)(1) – No Prior Convictions, but

Facing a Presumption of Incarceration or a Mandatory

Minimum Period of Parole Ineligibility

The Committee is recommending adoption of the language in proposed subsection

(d)(1), which addresses eligibility for individuals who have no prior convictions, but are

currently charged with a crime for which there is a presumption of incarceration or a

mandatory minimum period of parole ineligibility. The cases that fall within subsection

(d)(1) essentially include defendants charged with a first and second degree crime where

the defendant does not have a prior conviction.10 The proposal will also capture firsttime

offenders being charged with third and fourth degree crimes where there is a

presumption of incarceration or a mandatory minimum period of parole ineligibility.11

An example of a fourth degree crime that would fall under subsection (d)(1) is operating

a motor vehicle during a period of license suspension, in violation of N.J.S.A. 2C:40-26,

which requires a mandatory sentence of 180 days incarceration with no parole

eligibility.12 Third or fourth degree crimes that would require the imposition of a

mandatory minimum period of parole ineligibility include crimes that fall within the

10 There is a presumption of incarceration for all first and second degree crimes. N.J.S.A. 2C:44-1(d).

Subsection (d)(1) addresses defendants who have no prior convictions. Defendants with a prior

conviction would fall under subsection (c)(3) or paragraph (d)(2) of R. 3:28-1.

11 N.J.S.A. 2C:44-1(d) provides as follows:

d. Presumption of imprisonment. The court shall deal with a person who has been

convicted of a crime of the first or second degree, or a crime of the third degree

where the court finds that the aggravating factor in paragraph (5) of subsection a.

applies, by imposing a sentence of imprisonment unless, having regard to the

character and condition of the defendant, it is of the opinion that his

imprisonment would be a serious injustice which overrides the need to deter such

conduct by others. Notwithstanding the provisions of subsection e. of this

section, the court shall deal with a person who has been convicted of theft of a

motor vehicle or of the unlawful taking of a motor vehicle and who has

previously been convicted of either offense by imposing a sentence of

imprisonment unless, having regard to the character and condition of the

defendant, it is of the opinion that his imprisonment would be a serious injustice

which overrides the need to deter such conduct by others.

N.J.S.A. 2C:44-1e provides that first time offenders who are convicted of a third or fourth degree

crime generally are not subject to a prison sentence, except for those offenses specifically identified in a

statute. See e.g., N.J.S.A. 2C:40-26 (4th degree crime requiring a sentence to a term of imprisonment);

N.J.S.A. 2C:35-7 (3rd degree crime requiring a mandatory minimum term of imprisonment); N.J.S.A.

2C:43-6(c) (requiring a mandatory minimum term for certain firearm related offenses). Note: This list is

not intended to be exhaustive. Relevant statutory provisions should be reviewed regarding the application

of the presumption of incarceration and mandatory minimum terms.

12 There are two unpublished decisions reversing the Law Division judges’ decision to admit the person

charged with a violation of N.J.S.A. 2C: 40-26 into PTI over the prosecutor’s objection. In State v.

Chauhan, No. A-2583-12 (App. Div. July 16, 2013) and State v. Sharp, No. A-1230-12 (App. Div.

August 2, 2013), the Appellate Division found no patent and gross abuse of discretion in the prosecutor’s

denial of enrollment into PTI based upon their prior driving record and the policy consideration of the

Legislature to impose a mandatory period of incarceration without parole).

Graves Act, N.J.S.A. 2C:43-6c. The Graves Act provides that a mandatory minimum

term shall be imposed, under certain circumstances, when a person used or was in

possession of a firearm while in the course of committing or attempting to commit the

crime. The minimum term to be imposed “shall be fixed at one-half of the sentence

imposed by the court or 42 months, whichever is greater, or 18 months in the case of a

fourth degree crime.” N.J.S.A. 2C:43-6c.

As the categories of charges expressed in subsection (d)(1) delineate the crimes for

which a defendant, if convicted, would most likely receive a sentence to imprisonment,

the Committee is of the view, that before a PTI application is considered by the court, the

defendant must obtain consent from the prosecutor. From a historical perspective, both

the 1980 and 1986 Judicial Conference Reports recommended that defendants who were

charged with a first or second degree crime be ineligible for PTI except on joint

application of the defendant and the prosecutor. Also, in the 1988 Criminal Practice

Committee Report, the Committee recommended an automatic exclusion for persons

charged with a first or second degree crime. The Committee’s recommendation in 1988

was tempered because it would permit an application to be filed in “extraordinary” cases

where automatic exclusion would create a hardship. To overcome automatic exclusion,

the defendant would have had to first obtain the prosecutor’s approval. See Report of the

Supreme Court Committee on Criminal Practice 1988, supra, 122 N.J.L.J. at 114.

Furthermore, currently Guideline 3(i) would allow an application for a first or second

degree offense to be filed jointly by the defendant and the prosecutor. In such cases, the

applicant has the opportunity to present to the criminal division manager and through the

criminal division manager to the prosecutor, any facts or materials demonstrating the

applicant's amenability to the rehabilitative process, showing compelling reasons

justifying the applicant's admission and establishing that a decision against enrollment

would be arbitrary and unreasonable. While the Commentary to Guideline 3(i) notes that

the Guideline creates a rebuttable presumption against admission for defendants charged

with first and second degree offenses, State v. Nwobu, 139 N.J. 236 (1995) sets forth a

heightened standard (compelling circumstances) for admission. Ironically, as a result, in

some regards there is a more lenient standard for a defendant charged with a first or

second degree crime to be admitted into PTI than it would be for that same defendant to

overcome the presumption of incarceration and be sentenced to probation after a

conviction. See N.J.S.A. 2C:44-1d (the court must sentence the person to imprisonment

“…unless, having regard to the character and condition of the defendant, it is of the

opinion that his imprisonment would be a serious injustice which overrides the need to

deter such conduct by others”).

The proposed language in subsection (d)(1) differs from the current Guidelines

and historical reports in two ways. First, under the rule proposal, prosecutor consent to

consideration of the application is not tied to the degree of the crime, i.e., whether the

defendant is charged with a first or second degree crime. Rather, it is tied to whether the

sentence for the present crime will likely result in incarceration, i.e., has a presumption of

incarceration or requires imposition of a minimum parole ineligibility term. In that way,

the proposal captures all first and second degree crimes, as there is a presumption of

incarceration for those charges. N.J.S.A. 2C:44-1(d). Moreover, because the proposal is

not tied to the degree of the crime, it also captures more third and fourth degree charges

than the current Guidelines to R. 3:28, as the Guidelines do not provide an eligibility bar

for all persons charged with such offenses. In that regard, if adopted, paragraph (d)(1)

would require the prosecutor to consent to consideration of a PTI application for some

additional third and fourth degree crimes, which presently do not require such

prosecutorial approval.

Second, the proposal requires the defendant to submit compelling circumstances to

the prosecutor and that the prosecutor approve of the application before it is considered

by the court. In that regard, the preliminary application approval process takes place

between the defendant and the prosecutor, without court involvement.

As set forth above, strong opposition was raised with respect to the proposed

language in paragraph (d)(1).

b) R. 3:28-1 - Subsection (d)(2) – Prior Conviction for Third

or Fourth Degree Crime without a Sentence to a Prison

Term

Subsection (d)(2) addresses the category of individuals with prior convictions

where prosecutor consent is necessary. As discussed above, this is not the first time that

the issue of a bar for persons who have previously been convicted of a prior offense has

been proposed. Pursuant to proposed subsection (c)(3) of R. 3:28-1 all persons

previously convicted of first or second degree crimes, or convicted of a third or fourth

degree crime with a sentence of imprisonment, are barred from applying for PTI.

Subsection (d)(2) essentially covers applications for the remaining individuals with prior

convictions, i.e., persons who have previously been convicted of a third or fourth degree

indictable offense in New Jersey, or its equivalent under the laws of any other State or of

the United States and were sentenced to probation or received a disposition other than

imprisonment. The Committee determined that if a defendant has a prior third or fourth

degree conviction and did not receive a prison sentence for that prior conviction, the

defendant should not be automatically excluded from PTI. Rather, in this category of

cases, the defendant must obtain consent from the prosecutor to consideration of the

application. See Judicial Conference of New Jersey: An Approach to the Expeditious

Processing of Criminal Cases, 105 N.J.L.J. 521, 534 (1980); Judicial Conference Task

Force on Speedy Trial, Report of the Committee on Delay Points and Problems Affecting

Speedy Trial, 117 N.J.L.J. at 765 (1986), and Report of the Supreme Court Committee on

Criminal Practice 1988, 122 N.J.L.J. at 114 (1988). To make clear that PTI is intended

for first offenders, the Committee favored having the rule require that certain persons

who have a prior criminal record must obtain the prosecutor’s consent to consideration of

the application. The proposal also would ensure that evaluations are conducted and

reports are prepared by the Criminal Division after such consent is provided. Objections

were expressed with respect to subsection (d)(2). Additionally, some members urged that

a remoteness exception should apply when the eligibility criteria relates to a prior

conviction.

c) R. 3:28-1 - Subsection (d)(3) – Public Officer or Employee

The PTI program is designed primarily for first time offenders charged with

“victimless” crimes. Nonetheless, the statute recognizes that PTI may not be appropriate

for defendants who are public officers or employees charged with offenses that touch or

involve such office or employment. See N.J.S.A. 2C:43-12a(3). Likewise, Guideline

3(i) provides that if the crime was “a breach of the public trust where admission to a PTI

program would deprecate the seriousness of defendant's crime, the defendant's

application should generally be rejected.” The Committee recommends including

language in paragraph (d)(3), which explains that prosecutor consent to consideration of

the application is required for a person who is a public officer or employee and who is

charged with a crime that involved or touched the public office or employment.

d) Crimes and Offenses Involving Domestic Violence

The Committee considered whether to include crimes or offenses involving

domestic violence into the category of offenses requiring prosecutor consent to

consideration of the application. The Committee recognized that a defendant charged

with an indictable crime or offense involving domestic violence may fall within other

eligibility factors in R. 3:28-1(c) or R. 3:28-1(d) and would be processed accordingly.

The Committee saw no need to carve out a specific exception for domestic violence

cases.

In sum, pursuant to proposed paragraph (d) of R. 3:28-1, prosecutor consent to

consideration of the PTI application is required if the circumstances of the case fall

within the parameters of subsections (d)(1), (d)(2) or (d)(3). Thus, in those category of

cases the applicant must first obtain the prosecutor’s consent to consideration of the PTI

application before the application is considered by the criminal division.

The proposed language for new R. 3:28-1 follows.

RULE 3:28. PRETRIAL INTERVENTION PROGRAMS

3:28-1. Eligibility for Pretrial Intervention

(a) Age. To be eligible to apply for admission into the pretrial intervention program,

a person must be:

(1) age 18 or older at the time of the commission of the offense for which an

application is made, or

(2) a juvenile at the time of the commission of the offense, who is treated as an

adult under R. 5:22-1 or R. 5:22-2.

(b) Residence. Non-residents are eligible to apply for the pretrial intervention

program but may be denied enrollment unless they can demonstrate that they can receive

effective counseling or supervision.

(1) Prior Diversion. A person who has previously been enrolled in a program of

pretrial intervention; previously been placed into supervisory treatment in New Jersey

under the conditional discharge statute pursuant to N.J.S.A. 24:21-27 or N.J.S.A.

2C:36A-1, or the conditional dismissal statute, N.J.S.A. 2C:43-13.1, et. seq.; or enrolled

in a diversionary program under the laws of any other state or the United States for a

felony or indictable offense, shall be ineligible to apply for admission into pretrial

intervention.

(2) Non Criminal Matters. A person who is charged with a disorderly persons

offense, a petty disorderly persons offense, an ordinance or health code violation or a

similar violation shall be ineligible to apply for pretrial intervention.

(3) Prior Convictions. A person who previously has been convicted of (i) any

first or second degree offense or its equivalent under the laws of another state or the

United States, or (ii) any other indictable offense or its equivalent under the laws of

another state or the United States for which the person was sentenced to a term of

imprisonment, shall be ineligible to apply for admission into pretrial intervention.

(d) Persons Ineligible for Pretrial Intervention Without Prosecutor Consent to

Consideration of the Application.

The following persons who are not ineligible for pretrial intervention under

paragraph (c) shall be ineligible for pretrial intervention without prosecutor consent to

consideration of the application:

(1) Certain Crimes. A person who has not previously been convicted of an

indictable offense in New Jersey, and who has not previously been convicted of an

indictable or felony offense under the laws of another state or the United States, but who

is charged with a crime, or crimes, for which there is a presumption of incarceration or a

mandatory minimum period of parole ineligibility,

(2) Prior Convictions. A person who has previously been convicted of a third

or fourth degree indictable offense in New Jersey, or its equivalent under the laws of

another state or of the United States, and who was not sentenced to a term of

imprisonment for that prior offense,

(3) Public Officer or Employee. A person who was a public officer or

employee and who is charged with a crime that involved or touched the public office or

employment.

Adopted to be effective .

b. R. 3:28-2 – Timing of Application

R. 3:28-2 is a new rule. The rule sets forth the time when applications for PTI can

be made and accepted.

Currently, R. 3:28(h) provides that PTI applications “shall be made at the earliest

possible opportunity, including before indictment, but in any event no later than twentyeight

days after indictment.” The original proposal by the Criminal Presiding Judges and

Criminal Division Managers provided a fixed time for PTI applications to be made:

“[a]pplications for pretrial intervention shall be made at the earliest possible opportunity,

including before indictment, but in any event no later than the arraignment/status

conference.” The Committee discussed whether a timeframe requiring PTI applications

to be filed before the arraignment/status conference was realistic. It reached a consensus

that there should be a balance in encouraging PTI filings early on in the case, and

developing a deadline that does not exclude appropriate PTI applications. The

Committee discussed a variety of options for timeframes to make and accept PTI

applications, including: fixing the application deadline to a certain number of days after

the assignment of counsel; creating a fixed date to file an application with a “good cause”

or “prosecutor consent” exception to extend the filing deadline; creating a fixed date to

file an application without any exceptions; and making the filing deadline longer. The

Committee ultimately decided to recommend adoption of the following language:

“[a]pplications for pretrial intervention, shall be made at the earliest possible opportunity,

including before indictment, but in any event no later than 14 days after the

arraignment/status conference, unless good cause is shown or consent by the prosecutor

is obtained.”

It was not until the 1995 revisions of the Part III rules implementing the Standards

for the Operation of the New Jersey Criminal Division of the Superior Court that time

periods for the making and disposition of the PTI application and for seeking review by

the trial court were added to R. 3:28. See Pressler, Current N.J. Court Rules, comments

on R. 3:9-1 and R. 3:28 (1996). Paragraph (h) of R. 3:28, which has not been amended

since being adopted, provides that an “application for pretrial intervention shall be made

at the earliest possible opportunity, including before indictment, but in any event no later

than twenty-eight days after indictment.” See R. 3:28 (1996). Guideline 6 was also

amended in accordance with these revisions. Ibid. See also Supplemental Report of the

Supreme Court Committee on Criminal Practice 1994, 137 N.J.L.J. 75 (1994).

From the beginning, the Rule was intended to encourage applications as soon as

possible after the commission of the offense as the purpose of PTI is to quickly divert

persons from normal prosecution. Ideally, PTI should be a pre-indictment program.

However, the reality is that not all defendants have counsel prior to indictment. Thus, it

would be unfair to only allow PTI applications to be filed pre-indictment. Furthermore,

in practice, late applications have been permitted despite the filing deadline in R. 3:28(h).

Two prior reports have recognized this problem but did not propose a statewide method

to address it. Rather, they proposed leaving solutions up to local option. See 1986

Judicial Conference Task Force on Speedy Trial, Report of the Committee on Delay

Points and Problems Affecting Speedy Trial, 117 N.J.L.J. at 765 (1986); and Report of

the Supreme Court Committee on Criminal Practice (1988), 122 N.J.L.J. at 114. That

being said, the Committee discussed that the vicinages should strongly encourage

defendants to begin the application process pre-indictment, recognizing that the

prosecutor can defer action on the application until after an indictment is filed.

The Committee is proposing new language that will require the filing of PTI

applications no later than 14 days after the arraignment/status conference, unless good

cause is shown or consent by the prosecutor is obtained. This change limits the current

time frame to file an application, but also provides judicial discretion to extend the filing

deadline if good cause is established or if the prosecutor consents to the late filing. The

Committee recognized that the exceptions will not prevent the arbitrary filing of late

applications, however, it acknowledged that vicinages have different practices which may

warrant delayed filing of a PTI application in appropriate circumstances.

While the Committee was in favor of allowing some flexibility in belated filings,

when necessary, it was also of the view that this additional time period should not be

used to encourage delays in filing PTI applications. Although out of time applications

are permitted by the proposal, they should be a rare occurrence and not the norm. This

view was expressed in an unpublished Appellate Division opinion, which pointed out that

the judge’s consideration of defendant’s application for admission into PTI was

erroneous, citing to R. 3:28(h) in support. See State v. Myers, No. A-3304-05 (App. Div.

January 4, 2007) (slip op. at 10). The court noted that the defendant’s initial application

for PTI was submitted more than four months following indictment and more than nine

months after being charged with the offense. Ibid.

The proposed language for new R. 3:28-2 follows.

3:28-2 . Timing of Application

Applications for pretrial intervention, shall be made at the earliest possible opportunity,

including before indictment, but in any event no later than 14 days after the

arraignment/status conference, unless good cause is shown or consent by the prosecutor

is obtained.

Adopted to be effective .

c. R. 3:28-3 – Application Process

R. 3:28-3 is a new rule. It sets forth procedures and time parameters for the

criminal division and the prosecutor to review, evaluate and make recommendations

regarding applications for PTI. Paragraph (a) explains that every applicant must

complete a form prescribed by the Administrative Office of the Courts. Applications that

do not require prosecutor consent, which typically involve first-time offenders charged

with third or fourth degree crimes, will be processed as set forth in paragraph (d) which

continues the current procedures utilized by the Criminal Division and prosecutors to

assess applications and enrollment. Cases that require prosecutor consent to

consideration of the application under R. 3:28-1(d) are governed by paragraph (b).

The Committee is recommending adoption of the language in paragraph (b), which

sets forth procedures for cases that fall within R. 3:28-1(d), where the applicant must

obtain prosecutor consent to consideration of the PTI application before it is considered

by the Criminal Division. It creates an early screening process for those category of

cases, identified by the Committee where defendants often are not enrolled into the PTI

program. Under this screening process, to preserve the defendant’s appeal rights, upon

receipt, a PTI application will be filed with the Criminal Division. However, the

Criminal Division is not required to complete an evaluation unless the prosecutor

consents to further consideration of the application. If the prosecutor refuses to consent

to consideration of the application, the application is not processed further by the

Criminal Division. The defendant may elect to file an appeal from the rejection to the

Criminal Judge as described in proposed R. 3:28-6.

Pursuant to subsection (b)(1), as part of the application, the defendant or the

defendant’s attorney must include a statement of the extraordinary and compelling

circumstances that justify consideration of the application notwithstanding the

presumption of ineligibility based on the nature of the crime charged and any prior

convictions. This language is designed to require the defendant to provide compelling

circumstances upfront in the PTI process to justify consideration of the PTI application

for select cases that fall within R. 3:28-1(d).

Similar to the opposition regarding R. 3:28-1(d), some members voiced the

position that the proposed language in subsection (b)(1) is contrary to the statute13 and

Guidelines governing PTI. Additionally, because the criminal division manager’s office

will not conduct an evaluation on the application before the prosecutor makes a

determination whether to provide consent, it was expressed that the “extraordinary and

compelling circumstances” standard places an extreme burden on individuals who apply

for PTI early in the process and who do not have an attorney. Removing the criminal

division manager’s evaluation from this category of cases before the prosecutor provides

consent gives the prosecutor absolute power to veto an application without court

involvement.

As proposed, under subsection (b)(2) when the Criminal Division receives a PTI

application that requires prosecutor consent, the application is filed with the Criminal

Division to preserve the defendant’s right to appeal. As some PTI applications will be

submitted by pro se defendants, the Committee believed that it was important for the

13 N.J.S.A. 2C:43-12, et. seq.

court to file every application that is received. Upon the filing of an application requiring

prosecutor consent, the Criminal Division shall not consider the merits of the application

and shall forward the application to the prosecutor’s office for consideration. The

Criminal Division shall consider the PTI application only after receipt of the prosecutor’s

consent. Thus, according to the proposal, for prosecutor consent cases, other than filing

the application, the court is not involved in the process between the defendant and

prosecution regarding the prosecutor’s grant of consent or refusal to consent to

consideration of the application. Once consent is obtained the Criminal Division, and

thereafter, the prosecutor will conduct an evaluation pursuant to R. 3:28-3(d) regarding

the defendant’s enrollment into the PTI program. If the prosecutor refuses to consent to

consideration of the application, the defendant can file an appeal pursuant to R. 3:28-6.

Subsection (b)(3) sets forth criteria to guide the prosecutor when deciding whether

to consent or refuse to consent to consideration of the PTI application. It provides that in

making a determination to consent to further consideration of the application, the

prosecutor shall not be required to consider any facts, materials, or circumstances other

than the information presented in the defendant’s application, but it shall not be an abuse

of discretion for the prosecutor to consider only those additional facts and circumstances,

which may include the victim’s position on whether the defendant should be admitted

into the program, that the prosecutor deems relevant to a determination whether

extraordinary and compelling circumstances justify consideration of the application

notwithstanding the presumption of ineligibility based on the nature of the crime charged

and any prior convictions.

Opposition was expressed that the factors set forth in paragraph (b)(3) regarding

prosecutor consent to further consideration of the application are inconsistent with the

factors listed in Rule 3:28-4 and the PTI statute14. The Committee discussed this

difference and recognized that the proposed language in subsection (b)(3) creates new

criteria for those cases, identified by the Committee, which require prosecutor consent to

consideration of the application. After prosecutor consent is provided, the factors set

forth in proposed R. 3:28-4 and the statute come into play to assess the merits of the PTI

application and the defendant’s enrollment. Similar to subsection (b)(2), the proposed

language in subsection (b)(3) also involves the standard for a procedural screening

mechanism for those cases that require prosecutor consent to further consideration of the

application before the Criminal Division conducts its evaluation of the application.

Paragraph (c) is derived from Guideline 3e and allows defendants charged with

more than one offense to apply to PTI. Paragraph (d) addresses review and evaluation

conducted by the Criminal Division and prosecutor after an application is filed. For cases

that require prosecutor consent to consideration of the application pursuant to R. 3:28-

1(d), the criminal division manager shall complete the evaluation and make a

recommendation to the prosecutor on enrollment twenty-five days after receipt of the

prosecutor’s consent. In all other cases, the criminal division manager shall complete the

evaluation and make a recommendation on enrollment to the prosecutor within twentyfive

days of the filing of the application with the Criminal Division. In either situation,

within 14 days of the receipt of the criminal division manager's recommendation, the

14 N.J.S.A. 2C:43-12, et. seq.

prosecutor shall complete a review of the application and inform the court, the defendant

and the defendant’s attorney of the decision on enrollment. Additionally, in accordance

with current procedure, when an application is made pre-indictment, the prosecutor may

withhold action on the application until the matter has been presented to the grand jury.

When a PTI application is filed pre-indictment, the prosecutor shall inform the criminal

division manager, the defendant, and defendant’s attorney of the decision on enrollment

within 14 days of the return of the indictment.

The current time parameters for review of and decisions on applications for PTI

are contained in current R. 3:28(h) and Guideline 6. The Rule and Guideline require that

the criminal division manager complete the evaluation and make a recommendation

within twenty-five days of the filing of the application and that the prosecutor complete a

review of the application and inform the court and defendant within fourteen days of the

receipt of the criminal division manager's recommendation. Paragraph (d) slightly

differentiates the time for the Criminal Division to conduct its evaluation when

prosecutor consent to consideration of the application is required under R. 3:28-1(d). It

also requires that the prosecutor provide the decision on enrollment to both the defendant

and the defendant’s attorney.

R. 3:28(h) also presently allows the prosecutor, where an application is made preindictment,

to withhold action on the application until after the matter has been presented

to the grand jury. The new rule would retain this procedure. However, it would set a

time parameter, within 14 days of the return of the indictment, for the prosecutor to

inform the criminal division manager of his or her decision where he or she has withheld

the decision until after indictment.

The proposed language for new R. 3:28-3 follows.

3:28-3. Application Process

(a) Application.

Every applicant for pretrial intervention shall complete a form as prescribed by the

Administrative Director of the Courts for filing with the Criminal Division.

(b) Procedure for Persons Ineligible for Pretrial Intervention without Prosecutor

Consent to Consideration of the Application.

(1) An application that requires prosecutor consent pursuant to R. 3:28-1(d) shall

include a statement of the extraordinary and compelling circumstances that justify

consideration of the application notwithstanding the presumption of ineligibility based on

the nature of the crime charged and any prior convictions.

(2) Upon filing of an application that requires prosecutor consent, the Criminal

Division shall not consider the merits of the application and shall forward the application

to the prosecutor’s office for consideration. Within 14 days of receipt of the application,

the prosecutor shall advise the defendant, the defendant’s attorney and the Criminal

Division, in writing, of the decision to either consent or refuse to consent to further

consideration of the application. The writing shall include a copy of the application, the

basis for the prosecutor’s decision, and accompanying information, if any, in support of

the decision. Only after receipt of the prosecutor’s consent to further consideration of the

application, the Criminal Division shall consider the application.

(3) In making a determination whether to consent to further consideration of the

application, the prosecutor shall not be required to consider any facts, materials, or

circumstances other than the information presented in the defendant’s application, but it

shall not be an abuse of discretion for the prosecutor to consider only those additional

facts and circumstances which may include the victim’s position on whether the

defendant should be admitted into the program, that the prosecutor deems relevant to a

determination whether extraordinary and compelling circumstances justify consideration

of the application notwithstanding the presumption of ineligibility based on the nature of

the crime charged and any prior convictions.

with more than one offense may be considered for enrollment.

(d) Criminal Division and Prosecutor Review After the Filing of the

Application. The criminal division manager shall complete the evaluation and make a

recommendation to the prosecutor (1) within twenty-five days of the filing of the

application with the Criminal Division or (2) for cases that require prosecutor consent to

further consideration of the application pursuant to R. 3:28-1(d), within twenty-five days

after receipt of the prosecutor’s consent. The prosecutor shall complete a review of the

application and inform the court, the defendant and the defendant’s attorney of the

decision on enrollment within 14 days of the receipt of the criminal division manager's

recommendation. Where an application is made pre-indictment, the prosecutor may

withhold action on the application until the matter has been presented to the grand jury.

In such cases the prosecutor shall inform the criminal division manager, the defendant,

and defendant’s attorney of the decision on the application and enrollment within 14 days

of the return of the indictment.

Adopted to be effective .

d. R. 3:28-4 – Factors to Consider in Assessing Applications

R. 3:28-4 is a new rule. It sets forth the criteria for evaluating admissions into

PTI. The current criteria for evaluating admission are contained in Guideline 3 and

N.J.S.A. 2C:43-12(e). The Commentary to Guideline 3 notes that the introductory

statement of Guideline 3 requires consideration of the statutory criteria and that the

criteria contained in Guideline 3 are supplemental to the statutory criteria. This proposed

revision adopts the same approach.

In re-structuring the rules governing PTI some of the factors set forth in Guideline

3 and the Commentary to Guideline 3, for evaluating a defendant’s application have been

incorporated into newly-proposed rules. Guidelines 3(a)-(h) as well as part of Guideline

3(i), are covered by new proposed R. 3:28-1.15 Part of Guideline 3(i) is contained in

proposed R. 3:28-3. Guideline 3(k) is covered in proposed R. 3:28-5(d).16 Since

Guideline 3(j) is already included in N.J.S.A. 2C:43-12(e)(16), it is not included in this

proposed rule.17 The Committee engaged in a lengthy discussion as to what criteria

should be included in this rule. The Committee determined that the rule should include

references to N.J.S.A. 2C:43-12(e), to Guideline 3(i), and to a defendant’s juvenile

record. A dissenting view was expressed that proposed R. 3:28-4 should only refer to the

governing statute, N.J.S.A. 2C:43-12, and not include either the four categories of factors

to assess a PTI application that are discussed in Guideline 3(i), or a defendant’s juvenile

record.

15 Guidelines 3(a) – (i) address the following areas: (a) age; (b) residence; (c) and (d) jurisdiction, i.e.,

non-criminal offenses and minor violations; (e) prior record of convictions; (f) parolees and probationers;

(g) and (h) defendants previously diverted; and (i) assessment of the nature of the offense.

16 Guideline 3(k) addresses restitution and community service.

17 Guideline 3(j) addresses co-defendants.

Guideline 3(i) states:

In evaluating a defendant's application for participation in a pretrial

intervention program, consideration shall be given to the criteria set

forth in N.J.S.A. 2C:43-12(e). In addition thereto, the following

factors shall also be considered together with other relevant

circumstances:

(i) Assessment of the Nature of the Offense. Any defendant charged

with a crime is eligible for enrollment in a PTI program, but the

nature of the offense is a factor to be considered in reviewing the

application. If the crime was (1) part of organized criminal activity;

or (2) part of a continuing criminal business or enterprise; or (3)

deliberately committed with violence or threat of violence against

another person; or (4) a breach of the public trust where admission to

a PTI program would deprecate the seriousness of defendant's crime,

the defendant's application should generally be rejected. A defendant

charged with a first or second degree offense or sale or dispensing of

Schedule I or II narcotic drugs as defined in L.1970, c. 226 (N.J.S.A.

24:21-1 et seq.) by persons not drug dependent, should ordinarily not

be considered for enrollment in a PTI program except on joint

application by the defendant and the prosecutor. However, in such

cases, the applicant shall have the opportunity to present to the

criminal division manager and through the criminal division

manager to the prosecutor, any facts or materials demonstrating the

applicant's amenability to the rehabilitative process, showing

compelling reasons justifying the applicant's admission and

establishing that a decision against enrollment would be arbitrary

and unreasonable.

Regarding a defendant’s juvenile record, despite there being no direct reference in

N.J.S.A. 2C:43-12(e), R. 3:28, or the Guidelines, it is well established that a defendant’s

juvenile record is a factor to be considered when evaluating a PTI application. See State

v. Brooks, 175 N.J. 215, 226-28 (2002); see also State v. Negran, 178 N.J. 73, 84-85

(2003). Further, in Brooks, the Court explained that:

N.J.S.A. 2C:43-12e(9) permits a prosecutor to consider [t]he

applicant’s record of criminal and penal violations and the extent to

which he may present a substantial danger to others. We are

satisfied that that provision is broad enough on its fact to include a

defendant’s juvenile record. Similarly, N.J.S.A. 2C:43-12(8)

authorizes prosecutors to consider whether “the applicant’s crime

constitutes part of a continuing pattern of anti-social

behavior.”…That reference to anti-social behavior suggests that in

this setting a prosecutor may consider not only serious criminal acts,

but less serious conduct, including disorderly person offenses,

offenses found under the juvenile code, and acts that technically do

not rise to the level of adult criminal conduct.

[Id. at 227.]

In addition, the Court cautioned that “when examining a defendant’s juvenile

history, it should be recognized that “some juvenile adjudications may be so minor or

distant in time that they provide no reasonable basis on which to reject an otherwise

meritorious PTI application.” State v. Brooks, supra, 175 N.J. at 229-30. The Committee

is in favor of this proposal, however a dissenting view was expressed, as set forth above,

that proposed R. 3:28-4 should not reference an applicant’s juvenile record as a factor to

assess an application. Rather, the rule should only refer to the governing statute, N.J.S.A.

2C:43-12.

The Committee considered language that would provide that although a PTI

application is not subject to denial solely because a defendant is an illegal alien, such

status is a relevant factor to consider. See State v. Liviaz, 389 N.J. Super. 401 (App. Div.

2007). The Committee disagreed with including this language in the rule by concluding

that absent information to suggest that an applicant’s immigration status has any impact

on whether the applicant is a good candidate for PTI, it should not be included as a factor

in proposed rule. The Committee recognized that the list of factors in the proposed R.

3:28-4 is not all-inclusive, and thus immigration status need not be specified in the rule.

The Committee considered adding a paragraph, derived from the last sentence of

Guideline 2, that would continue the current policy found in the Commentary to

Guideline 2, which assigns to the applicant the duty “to allege and present any facts and

materials to the criminal division manager for reconsideration either by the criminal

division manager or prosecutor, if the prosecutor has denied consent, showing compelling

reasons justifying admission, and establishing that a decision against enrollment would be

arbitrary and unreasonable.” See State v. Green, 413 N.J. Super. 556, 560 (App. Div.

2010) (noting that it makes sense for a defendant to provide compelling reasons for

admission to PTI at the beginning of the process rather than waiting for the prosecutor to

reject his application and then submit compelling reasons). The Committee determined

that it was unnecessary to add such language to this rule, in light of the proposed

language in R. 3:28-3(b)(1) that “an application that requires prosecutor consent pursuant

to R. 3:28-1(d) shall include a statement of the extraordinary and compelling

circumstances that justify consideration of the application notwithstanding the

presumption of ineligibility based on the nature of the crime charged and any prior

convictions.”

The proposed language for new R. 3:28-4 follows.

3:28-4. Factors to Consider in Assessing Applications

In evaluating a defendant's application for participation in a pretrial intervention program,

consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e). In addition

thereto, the following factors shall also be considered together with other relevant

circumstances:

(a) The nature of the offense should be considered in reviewing the application. If

the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal

business or enterprise; or (3) deliberately committed with violence or threat of violence

against another person; or (4) a breach of the public trust where admission to a PTI

program would deprecate the seriousness of defendant's crime, the defendant's

application should generally be rejected.

(b) A defendant’s juvenile record, if applicable.

Adopted to be effective .

R. 3:28-5 – Admission into Pretrial Intervention

R. 3:28-5 is a new rule. It governs admission into PTI.

(1) R. 3:28-5 - Paragraph (a) – Any Superior Court Judge

Can Handle PTI Applications.

Paragraph (a) is being proposed to make clear that PTI can be handled by any

Superior Court Judge. R. 3:28(a) presently provides that the Assignment Judge shall

designate a judge or judges to act on all matters relating to pretrial intervention.

Currently every judge in the Criminal Division runs an individual calendar. See Criminal

Division Operating Standard I. Therefore, all criminal division judges handle

applications for admission into PTI. The change being proposed would make the rule

consistent with present practice.

(2) R. 3:28-5 - Paragraph (b) – Guilty Pleas

Paragraph (b) addresses the entry of a guilty plea during the PTI process. The

proposed language for paragraph (b) provides:

Enrollment in PTI programs shall not be conditioned upon either

informal admission or entry of a plea of guilty. Enrollment of

defendants who maintain their innocence is to be permitted unless

the defendant's attitude would render pretrial intervention

ineffective.

Guideline 4 sets forth a slightly less definitive policy statement that enrollment in PTI

programs should be conditioned upon neither informal admission nor entry of a plea of

guilty. The Guideline also states that enrollment of defendants who maintain their

innocence should be permitted unless the defendant's attitude would render pretrial

intervention ineffective. Moreover, N.J.S.A. 2C:43-12(g) provides that “… supervisory

treatment…shall be available to a defendant irrespective of whether the defendant

contests his guilt of the charge or charges against him.”

The Committee discussed whether the proposed rule should allow for a guilty plea

as a condition to enrollment into PTI. The original proposal by the Criminal Presiding

Judges and Criminal Division Managers provided that enrollment into PTI should

“ordinarily” not be conditioned upon either informal admission or entry of a guilty plea

and that enrollment of defendants who maintain their innocence is to be permitted unless

the defendant's attitude would render pretrial intervention ineffective. The generally

expressed reason for requiring a conditional guilty plea is that the prosecutor’s case may

deteriorate over time as a witness’s memory fades or a witness may become unavailable.

For instance, because a defendant can be enrolled in the PTI program for up to three

years, if a defendant is terminated from the program and returned to normal prosecution

after two years the prosecutor’s position of being able to prove the case may be

compromised. AOC data from CY 2010 revealed a discrepancy of whether entry of a

guilty plea is required as part of enrollment into PTI. Thus, Guideline 4 is interpreted

differently across the State. The overall policy of the PTI program is not to condition

enrollment upon the entry of a guilty plea.

Two unpublished Appellate Division opinions have held that a prosecutor’s

condition to require a guilty plea in exchange for defendant’s PTI admission constituted a

patent and gross abuse of discretion.18 Moreover, in State v. Randall, 414 N.J. Super.

18 See State v. Ocampo, No. A-2119-06 (App. Div. October 26, 2007) (slip op. at 13-14) (prosecutor’s

requirement of a guilty plea and his simultaneous insistence that defendant apply for citizenship as a

condition of PTI acceptance constituted a patent and gross abuse of discretion). See also State v. Jones,

No. A-0375-08 (App. Div. April 3, 2009) (slip op. at 11) (prosecutor’s condition of a guilty plea in

414, 421 (App. Div. 2010), certif. denied, 203 N.J. 437 (2010) the Appellate Division

found that the prosecutor’s office “erred in requiring defendant to plead guilty as a

prerequisite for admission into PTI.” This view is in accord with the PTI program when

it was being developed into a statewide program. See Proposal for Statewide

Implementation of a Uniform Program of Pretrial Intervention under New Jersey Court

Rule 3:28, at 35 (1975). (hereinafter 1975 Proposal). The 1975 Proposal took the

position that “by definition, pretrial intervention cannot involve entry of a guilty plea.”

Id. at 35.

Three years after the adoption of Guideline 4, the Court addressed admissions of

guilt in State v. Maddocks, 80 N.J. 98 (1979), by advising that:

Prosecutors are forewarned not to condition PTI enrollment upon

admissions of guilt. That is, a prosecutor cannot deny consent to

enrollment to a particular individual simply because that individual

has elected not to tender self-incriminatory information.

[Id. at 106.]

However, the Court added that it was not taking the position that:

A prosecutor may not take into consideration that fact that a specific

defendant has refused to admit his guilt. In certain circumstances, a

voluntary proffering of self-incriminatory information may indicate

defendant’s degree of repentance for the crime he has committed and

hence bear upon his ‘amenability to correction and potential

‘responsiveness to rehabilitation.’ . . . Indeed, Guideline 4 explicitly

notes that failure to admit guilt may be considered if ‘defendant’s

attitude would render pretrial intervention ineffective.’

[Id. at 106-07.]

exchange for defendant’s PTI admission constituted a legal error and improper consideration of

inappropriate factors (the guilty plea) amounting to a clear error in judgment and a patent and gross abuse

of discretion).

Notwithstanding, the 1981 Supreme Court Committee on Pretrial Intervention

believed “that any diversion from the position that an admission of guilty is not required

would seriously hamper the effectiveness of PTI Guideline 4.” See 1981 Report of the

Supreme Court Committee on Pretrial Intervention, 108 N.J.L.J. 485, 488 (1981).

Therefore, the Pretrial Intervention Committee recommended issuance of an

administrative directive “reaffirming that neither a guilty plea nor an acknowledgement

of guilt is required as a condition of admission to PTI.” Ibid.

In State v. Mosner, 407 N.J. Super. 40 (App. Div. 2009)19 the Appellate Division

addressed the requirement of a guilty plea to connected non-indictable charges in

exchange for defendant’s admission to the PTI program in the Superior Court. The

Appellate Division found that it was not a patent and gross abuse of discretion for a

prosecutor to require a guilty plea for connected motor vehicle violations as a condition

of PTI enrollment, because, notwithstanding the penal consequences, PTI does not apply

to motor vehicle offenses. Therefore, when a defendant is facing indictable and

connected non-indictable charges that are being handled in the Superior Court, the

prosecutor may condition entry into PTI upon a guilty plea to the connected nonindictable

charges.

19 In Mosner, the defendant was charged with fourth degree offenses and five motor vehicle violations.

The prosecutor consented to defendant's admission into PTI, conditioned on, among other things, his

guilty plea to the five motor vehicle charges. The defendant agreed to plead guilty to four of the motor

vehicle offenses, but not to the violation that carried a mandatory 180-day term of imprisonment.

Defendant appealed the prosecutor's decision to a Law Division judge, who denied the appeal. State v.

Mosner, 407 N.J. Super. at 57. See State v. Negren, 178 N.J. 73, 83 (2003) (PTI does not apply to motor

vehicle violations and offenses under Title 39 of the New Jersey statutes); State v. Mosner, 407 N.J.

Super. at 54 (same).

The Committee recognized that the Appellate Division opinions dealing with

conditional guilty pleas are largely based upon interpretations of the current court rules.

If the rules governing PTI are being revised, those decisions need not be regarded as

conclusive of this issue. It was reasoned that it makes sense to allow a prosecutor to

request conditional guilty pleas, especially in those cases which would otherwise be

ineligible for PTI absent the prosecutor’s consent. In fact, it was pointed out that

presently the rule specifically states that admissions of guilt are not required “unless the

defendant's attitude would render pretrial intervention ineffective.” It was maintained

that this caveat recognizes that admissions of guilt are appropriate in some cases.

Given the changes being proposed regarding PTI eligibility and emerging case

law, to encourage uniformity, the Committee is proposing that subsection (b) expressly

state that PTI enrollment shall not be conditioned upon either informal admission or the

prior entry of a guilty plea. This proposal is being recommended with the caveat that

similar to the circumstances in State v. Mosner, a guilty plea to connected non-indictable

charges or violations should be permissible. Thus, the restriction being proposed in

paragraph (b) to the entry of a guilty plea or admission of guilt as a condition for

enrollment into PTI is limited to indictable charges. As proposed, paragraph (b) does not

effect the holding in Mosner, wherein, prosecutors are permitted to require a guilty plea

for connected non-indictable offenses i.e., municipal court matters, such as disorderly

offenses, petty disorderly offenses, traffic, ordinance or health code violations, or other

similar violations, as a condition for admission into PTI.

(3) R. 3:28-5 – Paragraph (c) – Postponement of Proceedings

The language in paragraph (c) regarding postponement of the proceedings is

essentially a restatement of current R. 3:28(b). See also Guideline 8 (second paragraph,

first and second sentences).

(4) R. 3:28-5 – Paragraph (d) – Restitution and Community

Service

The language in paragraph (d) regarding restitution and community service comes

verbatim from Guideline 3(k). However, the last sentence of present Guideline 3(k),

which states: “[w]here appropriate to further rehabilitation, symbolic or partial restitution

may be included in the service” has not been retained as the Committee believes that it is

unnecessary. The proposal also provides that setting the amount of restitution is a

judicial function and determination. See State v. Martinez, 392 N.J. Super. 307 (App.

Div. 2007).20 The Committee is recommending adoption of the proposed language in

paragraph (d), with the understanding the setting of restitution is a judicial function and

determination.

The proposed language for new R. 3:28-5 follows.

20 In Martinez, a defendant disputed the restitution ordered as part of his PTI conditions. The Appellate

Division stated:

We discern no reason why standards governing the resolution of issues

where restitution is a condition of probation should not apply in the same

manner when restitution is a condition of defendant's participation in a

pretrial intervention program. Where there is a good faith dispute over

the amount of the loss or defendant's ability to pay, the trial court as a

matter of defendant's due process entitlement must hold a hearing on the

issue, the character of which should be appropriate to the nature of the

question presented. (citation omitted).

[Id. at 319.]

3:28-5. Admission into Pretrial Intervention

(a) A Superior Court Judge shall act on all matters pertaining to pretrial intervention

programs in the vicinage in accordance with N.J.S.A. 2C:43-12 and -13.

(b) Enrollment in PTI programs shall not be conditioned upon either informal

admission or entry of a plea of guilty. Enrollment of defendants who maintain their

innocence is to be permitted unless the defendant's attitude would render pretrial

intervention ineffective.

manager, and with the consent of the prosecutor and the defendant, postpone all further

proceedings against said defendant on such charges for a period not to exceed thirty-six

months.

(d) A restitution or community service requirement, or both, may be included as part

of an individual’s service plan when such a requirement promises to aid the rehabilitation

of the offender. Any such requirement and its terms shall be judicially determined at the

time of enrollment following recommendation by the criminal division manager and

consent by the prosecutor. Evidence of the restitution condition is not admissible against

defendant in any subsequent civil or criminal proceeding. Admission to the program

shall not be denied solely on the basis of anticipated inability to meet a restitution

requirement.

Adopted to be effective .

f. R. 3:28-6 – Appeal of Decision by Criminal Division Manager or

Prosecutor

R. 3:28-6 is a new rule. It governs appeals of decisions of the criminal division

manager or prosecutor.

(1) R. 3:28-6 - Paragraph (a) – Time to File

Paragraph (a) of the rule sets forth the process to be followed when a defendant is

appealing the decision of the criminal division manager or the prosecutor refusing to

permit enrollment of the defendant into PTI, or the prosecutor’s decision to refuse to

consent to the defendant’s application where required pursuant to R. 3:28-1(d). It

incorporates the present language in R. 3:28(h) (second paragraph) and in Guideline 8

(second paragraph, third sentence) that discuss the time to file an appeal. The proposed

language in paragraph (a) provides the applicant with a 10 day time frame to appeal (1)

the prosecutor’s decision not to consent to the further consideration of an application

pursuant to Rule 3:28-1(d); (2) the criminal division manager’s decision not to

recommend enrollment; or (3) the prosecutor’s decision not to consent to enrollment into

PTI.

The last sentence in paragraph (a) has been slightly modified from R. 3:28(h)

(second paragraph), to replace the phrase that the return date for the motion will be the

“next status conference” to a time the judge determines will promote “expeditious

disposition of the case.” This change recognizes that the judge and parties should

schedule the motion in accordance with their schedules and still remain committed to

promptly disposing of the case. In addition, having the return date of the motion as the

“next status conference” would not be applicable if the application is rejected preindictment.

(2) R. 3:28-6 – Paragraph (b) - Standards

Paragraph (b) lists the standard of review for decisions of the criminal division

manager and the prosecutor. Subsection (b)(1) sets forth the new standard to appeal from

the prosecutor’s decision not to consent to further consideration of the application for

cases that fall within R. 3:28-1(d). It also conforms with the application requirements for

prosecutor consent cases as set forth in R. 3:28-3(b)(1).

Subsection (b)(2) sets forth the current “arbitrary and capricious” standard to

appeal the criminal division manager’s decision not to recommend enrollment. Under the

standard of review set forth in Guideline 8 the defendant must show that the decision was

“arbitrary and capricious.” This standard has been affirmed as it relates to the decision of

the criminal division manager. See State v. Imbriani, 280 N.J. Super. 304 (Law Div.

1994), aff’d, 291 N.J. Super. 171 (App. Div. 1996); State v. Lopes, 289 N.J. Super. 460

(Law Div. 1995); and State v Burbano, 304 N.J. Super. 215 (Law Div. 1996).

Subsection (b)(3) sets forth the current “patent and gross abuse of discretion”

standard to appeal the prosecutor’s decision not to consent to enrollment into PTI. The

Committee recognized that the Supreme Court’s holding that the standard of review for

overturning a prosecutor’s decision to reject enrollment into PTI is a “patent and gross

abuse of discretion.” See Leonardis II. Paragraph (a) (fifth sentence) was taken from

Guideline 8 (second paragraph, sentence four).

(3) R. 3:28-6 – Paragraphs (c) and (d) – Review by an

Appellate Court

Paragraph (c) is derived from current R. 3:28(f) to preclude pretrial review, by an

appellate court, of a judge’s decision upholding the prosecutor’s refusal to consent to

consideration of an application and the rejection of a defendant’s enrollment into PTI in

situations where the prosecutor or criminal division manager recommend rejection. It

also addresses an appeal by the prosecutor when a judge orders a defendant enrolled into

PTI over the prosecutor’s objection. Paragraph (d) originates from R. 3:28(g). It is

slightly reworded to change the phrase “denial of acceptance” in current R. 3:28-(g) to

state “denial of an application or enrollment” in recognition of the category of prosecutor

consent cases in R. 3:28-1(d).

The Committee discussed whether, in prosecutor consent cases, a defendant

should have the opportunity to file an interlocutory appeal when the prosecutor refuses to

consent to further consideration of the application. It was voiced that in light of State v.

Bell, 217 N.J. 336 (2014) a defendant should be able to do so, as Bell held that if a

defendant goes to trial and is convicted of an eligible PTI offense, the defendant cannot,

after trial, be admitted into the PTI. The Committee rejected this suggestion to allow an

interlocutory appeal for defendants in cases where the prosecutor refuses to consent to

further consideration of the application. Rather, under the proposal, in prosecutor

consent cases, the”[d]enial of an application . . . may be reviewed on appeal from a

judgment of conviction notwithstanding that such judgment is entered following a guilty

plea.”

The proposed language for new R. 3:28-6 follows.

3:28-6. Appeal of Decision by Criminal Division Manager or Prosecutor

(a) Time to File. A defendant challenging the decision of the criminal division

manager not to recommend enrollment, or of a prosecutor refusing to consent to

consideration of the defendant’s application where required pursuant to R. 3:28-1(d), or

of a prosecutor’s refusing to consent to the defendant’s enrollment into the pretrial

intervention program, shall file a motion with the Presiding Judge of the Criminal

Division, or the judge to whom the case has been assigned, within ten days after receipt

of the rejection and, if prepared, of the Criminal Division Manager’s report. The motion

shall be made returnable at such time as the judge determines will promote an expeditious

disposition of the case.

(b) Standards.

(1) A defendant challenging a prosecutor’s decision to refuse to consent to

consideration of an application must establish not only that the prosecutor’s decision was

a gross and patent abuse of discretion, but that information presented in the application

and such additional information as the prosecutor chose to consider clearly and

convincingly establishes that there are extraordinary and compelling circumstances that

justify consideration of the application notwithstanding the presumption of ineligibility

based on the nature of the crime charged and any prior convictions.

(2) A defendant challenging the criminal division manager’s recommendation

against enrollment into the pretrial intervention program must establish that the decision

was arbitrary and capricious.

(3) A defendant challenging the prosecutor’s recommendation against

enrollment into the pretrial intervention program must establish that the decision was a

patent and gross abuse of discretion.

appellate court of a decision of the prosecutor to refuse to consent to consideration of the

application, or of a decision of the criminal division manager, or of the prosecutor to

refuse to enroll a defendant into the pretrial intervention program. An order enrolling a

defendant into the pretrial intervention program over the prosecutor's objection shall be

deemed final for purposes of appeal, as of right, and shall be automatically stayed for

fifteen days following its entry and thereafter pending appellate review.

(d) Denial of an application or enrollment pursuant to this rule may be reviewed on

appeal from a judgment of conviction notwithstanding that such judgment is entered

following a plea of guilty.

Adopted to be effective .

g. R. 3:28-7 – Conclusion of Period of Pretrial Intervention;

Pretrial Intervention Registry

Former R. 3:28 has been re-designated as R. 3:28-7. Some paragraphs have been

moved to other rules and others have been retained in this rule. It sets forth the process

upon conclusion of PTI and also covers the PTI Registry.

Language from former paragraph (a) has been removed from this rule. It is now

contained, as slightly reworded in R. 3:28-5(a).

Former paragraph (b) has been re-designated paragraph (a).

Former paragraph (c) has been re-designated paragraph (b). The first sentence of

former paragraph (c) and former paragraph (c)(1) have been slightly reworded and are

now contained in paragraphs (b) and (b)(1). One change to note is that the rule now

delineates the vicinage chief probation officer, instead of the criminal division manager,

as the party recommending dismissal of the charges at the conclusion of the

postponement, along with the prosecutor. This language reflects the fact that the

probation division monitors persons being supervised in the PTI program and makes

recommendations with respect to the appropriate dispositions for PTI, as opposed to the

criminal division manager.

Another change that is being proposed in newly-designated paragraph (b)(1)

deletes the phrase “matter-adjusted” to reflect that the general term for this type of

disposition is that the complaint, indictment or accusation was dismissed. The term

“matter adjusted” seems to have originated in the draft form of Orders of Dismissal under

R. 3:28, which ordered the clerk of the court to mark the court record: “Complaint

dismissed—matter adjusted.” See 1975 Proposal, supra, at Appendix A-37. The current

form of Order of Dismissals promulgated by Supplement to Directive #14-05 (1/2/07),

states that the “Complaint(s)/Indictment(s)/Accusation(s) is/are hereby dismissed

pursuant to Rule 3:28 and the matter is adjusted without cost to the defendant.”

Proposed language in paragraph (b)(3) provides that when there is a

recommendation to order the prosecution of a defendant to proceed in the ordinary

course, a copy of the recommendation should be provided to the defendant and the

defendant’s known attorney of record. Currently, the rule only requires that a copy of the

recommendation be given to “the defendant or the defendant’s attorney.” Presently, the

original attorney who assisted the defendant to enroll into PTI may not receive notice

regarding the recommendation to terminate the individual from PTI. Even when the

Office of the Public Defender originally represents the defendant with respect to

enrollment into PTI, that office may not receive notice of the termination hearing unless

that defendant reapplies for representation for the scheduled PTI termination hearing. In

some instances, a defendant may not receive the termination hearing notice due to

circumstances, such as being temporarily hospitalized, homeless, or unreliable mail

delivery. When a defendant fails to appear, the defendant may be terminated from PTI

without a summary hearing. As a consequence for failing to appear, a bench warrant may

be issued, resulting in the defendant’s arrest. The Committee agreed that the rule should

require service of the written termination notice to both the defendant and the defense

attorney of record as of the time of the PTI admission. The attorney can then attempt to

contact the defendant and seek an adjournment of the scheduled termination hearing, or

other relief, if necessary. As proposed, the revision will ensure that both the defendant

and the last known attorney who represented the defendant receives notice of a

recommendation for a defendant’s termination from PTI.

Paragraph (c)(2) has been re-designated as paragraph (b)(2). The only change to

this paragraph reflects that the vicinage chief probation officer rather than the criminal

division manager will make recommendations with respect to an additional period of

postponement.

Paragraph (c)(3) has been re-designated as paragraph (b)(3) and addresses a

recommendation to order the prosecution of defendant to proceed in the ordinary course.

The first two sentences of new paragraph (b)(3) were taken verbatim from former

paragraph (c)(3). The last two sentences of paragraph (b)(3) were taken from the third

paragraph of current Guideline 8. Former paragraphs (c)(4) and (c)(5) have been

removed from this rule. They are now contained in new proposed R. 3:28-8(a) and (b),

which will govern the confidentiality of the PTI process and PTI records.

Former paragraph (d) has been re-designated paragraph (c), and now references

paragraph (b) rather than (c) to reflect the proposed changes to this rule.

Former paragraph (e) has been re-designated paragraph (d) and the first sentence

of former paragraph (e), addressing the PTI Registry, has been supplemented to clarify

that this information is contained in Promis Gavel. The last sentence of former paragraph

(e) has been removed from this rule. It is now contained verbatim as paragraph (c) of

new proposed R. 3:28-8 that addresses confidentiality of the PTI process and records.

Former paragraph (f) has been deleted from this rule. It is now contained in R.

3:28-6 that discusses appeals from the decision of the criminal division manager or

prosecutor.

Former paragraph (g) has been removed from this rule. It is now contained

verbatim in R. 3:28-6 that discusses appeals from the decision of the criminal division

manager or prosecutor. Former paragraph (h) has been removed from this rule. The time

parameter contained in this sentence has been modified and is contained in new proposed

R. 3:28-2 that deals with the timing of PTI applications. The second and third sentences

of the first paragraph, as well as the third paragraph, of former paragraph (h) are now

contained in R. 3:28-3 that explains the application process. The second paragraph of

paragraph (h) is now contained in R. 3:28-6, which discusses appeals of the decision by

the criminal division manager or prosecutor.

The proposed revisions to R. 3:28-7 follow.

[3:28. Pretrial Intervention Programs]

3:28-7. Conclusion of Period of Pretrial Intervention; Pretrial Intervention Registry

[(a) Each Assignment Judge shall designate a judge or judges to act on all matters

pertaining to pretrial intervention programs in the vicinage in accordance with N.J.S.A.

2C:43-12 and -13.]

[b] (a) Where a defendant charged with a penal or criminal offense has been accepted by

the program, the [designated] judge may, on the recommendation of the criminal division

manager and with the consent of the prosecutor and the defendant, postpone all further

proceedings against said defendant on such charges for a period not to exceed thirty-six

months.

[c] (b) At the conclusion of the period set forth in paragraph (c) or earlier upon motion

of the [criminal division manager] vicinage chief probation officer, the [designated] judge

shall make one of the following dispositions:

(1) On recommendation of the [criminal division manager] vicinage chief

probation officer and with the consent of the prosecutor and the defendant, dismiss

the complaint, indictment or accusation against the defendant, such a dismissal to

be designated “[matter-adjusted-] complaint (or indictment or accusation)

dismissed"; or

(2) On recommendation of the [criminal division manager] vicinage chief

probation officer and with the consent of the prosecutor and the defendant, further

postpone all proceedings against such defendant on such charges for an additional

period of time as long as the aggregate of postponement periods under the rule

does not exceed thirty-six months; or

(3) On the written recommendation of the [criminal division manager] vicinage

chief probation officer or the prosecutor or on the court’s own motion order the

prosecution of the defendant to proceed in the ordinary course. Where a

recommendation for such an order is made by the [criminal division manager]

vicinage chief probation officer or the prosecutor, such person shall, before

submitting such recommendation to the [designated] judge, provide the defendant

[or] and defendant’s last known attorney of record with a copy of such

recommendation, shall advise the defendant of the opportunity to be heard

thereon, and the [designated] judge shall afford the defendant such a hearing. A

defendant shall also be entitled to a hearing challenging a vicinage chief probation

officer’s or prosecutor’s recommendation for termination from the program and

that the prosecution of defendant proceed in the normal course. The decision of

the court shall be appealable by the defendant or the prosecutor as in the case of

any interlocutory order.

[(4) During the conduct of hearings subsequent to an order returning the defendant

to prosecution in the ordinary course, no program records, investigative reports,

reports made for a court or prosecuting attorney, or statements made by the

defendant to program staff shall be admissible in evidence against such defendant.

(5) No statement or other disclosure regarding the charge or charges against the

participant made or disclosed by a participant in pretrial intervention to a person

designated to provide supervisory treatment shall be disclosed by such person at

any time, to the prosecutor, nor shall any such statement or disclosure be admitted

as evidence in any civil or criminal proceeding against the participant, provided

that the criminal division manager shall not be prevented from informing the

prosecutor, or the court, on request or otherwise, whether the participant is

satisfactorily responding to supervisory treatment.]

[d] (c) Where proceedings have been postponed against a defendant for an additional

period as provided in paragraph [(c)(2)] (b)(2), at the conclusion of such period the

[designated] judge may not again postpone proceedings but shall make a disposition in

accordance with paragraph[(c)(1) or (3)] (b)(1) or (3). The aggregate of postponement

periods under this rule shall in no case exceed thirty-six months.

[e] (d) The Administrative Director of the Courts shall [establish and] maintain a record

in Promis Gavel [a Pretrial Intervention Registry for the purpose of determining] of all

applications, enrollments and the degree of completion thereof by a defendant in a

program approved by the Supreme Court in accordance with [paragraph (a)] R. 3:28-5(a).

[The Pretrial Intervention Registry] Promis Gavel shall contain such information and

material as directed by the Supreme Court. [No order to expunge or seal records of arrest

after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall

bar the retention of material and information in the Pretrial Intervention Registry for the

purposes of determining a defendant’s prior applications to, enrollments in and the degree

of completion of a Pretrial Intervention Program or for statistical reports required of the

Administrative Director of the Courts, by law or the Supreme Court.]

[(f) When the criminal division manager and prosecutor reject an application for

participation in the pretrial intervention program, there shall be no pretrial review by an

appellate court if the rejection is upheld by the designated judge or the Assignment

Judge. An order enrolling a defendant into the pretrial intervention program over the

prosecutor’s objection shall be deemed final for purposes of appeal, as of right, and shall

be automatically stayed for fifteen days following its entry and thereafter pending

appellate review.

(g) Denial of acceptance pursuant to this rule may be reviewed on appeal from a

judgment of conviction notwithstanding that such judgment is entered following a plea of

guilty.

(h) Application for pretrial intervention shall be made at the earliest possible opportunity,

including before indictment, but in any event no later than twenty-eight days after

indictment. The criminal division manager shall complete the evaluation and make a

recommendation within twenty-five days of the filing of the application. The prosecutor

shall complete a review of the application and inform the court and defendant within

fourteen days of the receipt of the criminal division manager’s recommendation.

An appeal by the defendant shall be made on motion to the Presiding Judge of the

Criminal Division or to the judge to whom the case has been assigned within ten days

after the rejection and shall be made returnable at the next status conference or at such

time as the judge determines will promote an expeditious disposition of the case.

Where application is made pre-indictment, the prosecutor may withhold action on

the application until the matter has been presented to the grand jury.]

h. R. 3:28-8 – Confidentiality of Pretrial Intervention Process and

Records

R. 3:28-8 is a new rule. It governs the confidentiality of the PTI process and PTI

records. Paragraphs (a) and (b) were moved verbatim from current R. 3:28(c)(4) and

(c)(5). Guideline 5 also addresses use of information obtained as part of a PTI

application or participation in a PTI program. That Guideline states that information

obtained as a result of a defendant’s application to or participation in a pretrial

intervention program should not be used, in any subsequent proceeding, against his or her

advantage. It is believed that new proposed paragraph (b) sufficiently covers this and

thus there is no reason to include this sentence from Guideline 5. Paragraph (c) was

moved, with some slight wording changes, from R. 3:28(e) (last sentence).

The proposed rule conforms with the exclusion of PTI records and reports from

public access under R. 1:38-3(c)(5). In particular, the exclusion from public access of

certain records in Criminal and Municipal Court proceedings under R. 1:38-3(c) provides

that:

(5) Records relating to participants in drug court programs and

programs approved for operation under R. 3:28 (Pre-trial

Intervention), and reports made for a court or prosecuting attorney

pertaining to persons enrolled in or applications for enrollment in

such programs, but not the fact of enrollment and the enrollment

conditions imposed by the court.

[R. 1:38-3.]

The proposed language for new R. 3:28-8 follows.

3:28-8. Confidentiality of Pretrial Intervention Process and Records

(a) During the conduct of hearings subsequent to an order returning the defendant to

prosecution in the ordinary course, no program records, investigative reports, reports

made for a court or prosecuting attorney, or statements made by the defendant to program

staff shall be admissible in evidence against such defendant.

(b) No statement or other disclosure regarding the charge or charges against the

participant made or disclosed by a participant in pretrial intervention to a person

designated to provide supervisory treatment shall be disclosed by such person at any

time, to the prosecutor, nor shall any such statement or disclosure be admitted as

evidence in any civil or criminal proceeding against the participant, provided that the

vicinage chief probation officer shall not be prevented from informing the prosecutor, or

the court, on request or otherwise, whether the participant is satisfactorily responding to

supervisory treatment.

indictment or accusation shall bar the retention of material and information in Promis

Gavel for the purposes of determining a defendant’s prior applications to, enrollments in,

and the degree of completion of a Pretrial Intervention Program or for statistical reports

required of the Administrative Director of the Courts, by law or the Supreme Court.

Adopted to be effective .

i. R. 3:28-9 – Written Reasons and Decisions

R. 3:28-9 is a new rule. It sets forth the requirement that the decisions and reasons

of prosecutors, criminal division managers, and vicinage chief probation officers on a

defendant’s application for and enrollment into the pretrial intervention program or for

recommending termination from the pretrial intervention program or dismissal of charges

in all cases shall be reduced to writing and disclosed to the defendant and the defendant’s

attorney. Recommendations of termination or dismissal of charges, shall be in writing

and disclosed to the defendant and the defendant’s last known attorney of record. Similar

language is contained in current Guideline 8 (first paragraph) and N.J.S.A. 2C:43-12(c).

The language concerning the reasons and decisions being in writing was changed from

“must” to “shall” to conform to the statute. In addition, this rule was changed to

recognize that some judges place their decisions on the record rather than in writing. If

the decision is placed on the record it must be in accordance with R. 1:7-4 and

accompanied by an order.

The proposed language for new R. 3:28-9 follows.

3:28-9. Written Reasons and Decisions

(a) The decisions and reasons made by the prosecutor and criminal division manager

in recommending or denying a defendant’s application for enrollment into the pretrial

intervention program in all cases shall be reduced to writing and disclosed to the

defendant and defendant’s attorney. The decision of the judge to grant or deny the

application shall be written or placed on the record pursuant to R. 1:7-4 and accompanied

by an order.

(b) The decisions and reasons made by the prosecutor and vicinage chief probation

officer in recommending termination from the pretrial intervention program or dismissal

of charges in all cases shall be reduced to writing and disclosed to the defendant and

defendant’s last known attorney of record. The decision of the judge to order termination

or dismissal of the charges shall be written or placed on the record pursuant to R. 1:7-4

and accompanied by an order.

Adopted to be effective .

j. R. 3:28-10 – Pretrial Intervention Program Director

R. 3:28-10 is a new rule. When the PTI Program was first instituted a program

director made recommendations to the judge regarding admission and termination.

However, to ensure uniform statewide development, the rule was soon after amended to

permit the trial court administrator or the chief probation officer to have authority over

this program. See R. 3:28 (1974). In 1984, Superior Court support staff was re-assigned

to Divisions of the Superior Court, e.g. criminal, civil, family, probation. Over time there

was no specified individual known as the program director. Rather, the criminal division

manager assumed this responsibility. In 1995, R. 3:28 was changed to reflect that the

criminal division manager was the person responsible for making PTI decisions. See R.

3:28 (1995). Despite the change in the rule N.J.S.A. 2C:43-12(i) still provides that PTI

programs and appointment of program directors require approval by the Supreme Court

with the consent of the Assignment Judge and prosecutor. It should be noted that the

Supreme Court Committee on Pretrial Intervention pointed out that this appointment is a

judicial function. See Report of the Supreme Court on Pretrial Intervention, 108 N.J.L.J.

485 (1981).

R. 3:28-10 would establish that the criminal division manager is the program

director for purposes of making recommendations on applications for enrollment into

pretrial intervention; and the vicinage chief probation officer is the program director for

purposes of recommending: (1) dismissal of the complaint, indictment or accusation

against the defendant, or (2) further postponement of all proceedings for additional time,

or (3) termination of the defendant from the program and having the prosecution of the

defendant proceed in the ordinary course, pursuant to proposed R. 3:28-7. While the

current rule requires that the criminal division manager make decisions regarding

dismissal and termination, the fact is that they are not equipped to do so. Although the

criminal division manager reviews termination requests and signs off on letters

recommending termination the criminal division manager does not have access to

probation case notes. Once a person is admitted into PTI the probation division is

responsible for the case. This proposed rule amendment would conform the rule to what

actually is the current practice.

The new rule would also allow the criminal division manager and vicinage chief

probation officer to delegate their ability to make recommendations to another person or

persons.

The proposed language for new R. 3:28-10 follows.

3:28-10. Pretrial Intervention Program Director

For purposes of R. 3:28-1 et seq. and N.J.S.A. 2C:43-12 the criminal division

manager shall be considered the program director for purposes of making

recommendations on applications for enrollment into pretrial intervention. For purposes

of R. 3:28-1 et seq. and N.J.S.A. 2C:43-12 the vicinage chief probation officer shall be

considered the program director for purposes of recommending: (1) dismissal of the

complaint, indictment or accusation against the defendant, (2) further postponement of all

proceedings for additional time, or (3) termination of the defendant from the program and

having the prosecution of the defendant proceed in the ordinary course. The criminal

division manager and vicinage chief probation officer shall have the authority to delegate

their ability under R. 3:28-1 et seq. to make recommendations to another person or

persons.

Adopted to be effective .

5. Deletion of Guidelines

When the Supreme Court in Leonardis I mandated that uniform Guidelines be

implemented only twelve counties in New Jersey had PTI programs. See Pressler, supra,

comment on R. 3:28 (1978). In Leonardis II, the Court again reiterated the importance of

the Guidelines in the “early stages of PTI’s development” to provide “uniformity.” Id. at

383-84. A year after Leonardis II, the Legislature statutorily enacted the statewide PTI

program. The adoption of proposed R. 3:28-1 to R. 3:28-10 will make the Guidelines,

and commentary thereto, unnecessary as what was deemed necessary from the Guidelines

has been included in the revision to the rules. Furthermore, incorporating the procedures

for PTI into just the rules should simplify the process for all parties. Therefore, the

Committee agreed to recommend an elimination of the PTI Guidelines and Commentary.

[GUIDELINES FOR OPERATION OF PRETRIAL INTERVENTION IN NEW

JERSEY

As Amended Effective September 1, 1996.

SUPREME COURT OF NEW JERSEY

ORDERED that the attached revised guidelines governing pretrial intervention programs

are approved for implementation as applicable in counties where such programs have

been authorized by the Supreme Court pursuant to R. 3:28; and FURTHER ORDERED

that the guidelines approved by the order of January 10, 1979 are hereby superceded.

For the Court,

Robert N. Wilentz C.J.

Dated: July 13, 1994

Guideline 1

The purposes of pretrial intervention are:

(a) To provide defendants with opportunities to avoid ordinary prosecution by

receiving early rehabilitative services, when such services can reasonably be expected

to deter future criminal behavior by the defendant, and when there is an apparent

causal connection between the offense charged and the rehabilitative need, without

which cause both the alleged offense and the need to prosecute might not have

occurred.

(b) To provide an alternative to prosecution for defendants who might be harmed by

the imposition of criminal sanctions as presently administered, when such an

alternative can be expected to serve as sufficient sanction to deter criminal conduct.

(c) To provide a mechanism for permitting the least burdensome form of prosecution

possible for defendants charged with "victimless" offenses.

(d) To assist in the relief of presently overburdened criminal calendars in order to

focus expenditure of criminal justice resources on matters involving serious

criminality and severe correctional problems.

(e) To deter future criminal or disorderly behavior by a defendant/participant in

pretrial intervention.

Comment

Guideline 1(a) states a rehabilitative model on which PTI programs in New Jersey

are based. The rehabilitative model emphasizes that social, cultural and economic

conditions often result in a defendant's choice of environmental compulsion to

commit crime. PTI seeks to solve personal problems which tend to result from the

conditions that appear to cause crime.

Guideline 1(b) recognizes that diversion in appropriate circumstances can serve as

sufficient sanction to deter future criminal conduct.

Guideline 1(c) provides for the use of PTI as a mechanism for minimizing

penetration into the criminal process for broad categories of offenders accused of

"victimless crimes," without relinquishing criminal justice control over such persons

while statutes proscriptive of such behavior remain in force.

Guideline 1(d) provides for removing from ordinary prosecution those who can be

deterred from criminal behavior by short term rehabilitative work or supervision. It is

to be emphasized that the potential for rehabilitation must be considered in light of the

time periods embodied in Rule 3:28(b), (c), (d).

The deterrence of criminal behavior in many cases requires intensive work:

counseling, psychotherapy, drug-abuse prevention and control, employment

placement. Programs in these cases should be measured against available treatment

facilities and the time constraints of PTI. For other defendants, however, no more than

a supervised pretrial probationary period may be necessary when no extensive need

for rehabilitative services can be discerned.

Guideline 1(e) acknowledges that pre-conviction rehabilitation can be in the public

interest when it results in the deterrence of future misconduct.]

[Guideline 2

Eligibility for PTI is broad enough to include all defendants who demonstrate sufficient

effort to effect necessary behavioral change and show that future criminal behavior will

not occur. Any defendant accused of crime shall be eligible for admission into a PTI

program. When the application indicates factors which would ordinarily lead to exclusion

under the guidelines established hereinafter, the applicant nevertheless shall have the

opportunity to present to the criminal division manager, and through the criminal division

manager to the prosecutor, any facts or materials demonstrating the defendant's

amenability to the rehabilitative process, showing compelling reasons justifying the

defendant's admission, and establishing that a decision against enrollment would be

arbitrary and unreasonable.

Comment

Guideline 2 provides that each applicant for a PTI program is entitled to full and fair

consideration of his or her application. When the application indicates factors that cause

either the criminal division manager to reject the application or the prosecutor to deny

consent to an enrollment, a statement particularizing the reasons for the rejection or the

withholding of consent by the prosecutor must be furnished to the defendant. If the

defendant wishes to challenge a rejection by the criminal division manager, or the

prosecutor's denial of consent to enrollment, the defendant may do so in accordance with

the procedures set forth in guidelines 6 and 8. It is the duty of the applicant to allege and

present any facts and materials to the criminal division manager for reconsideration either

by the criminal division manager or prosecutor, if the prosecutor has denied consent,

showing compelling reasons justifying admission, and establishing that a decision against

enrollment would be arbitrary and unreasonable. The presentation of this material should

be done concurrently with the filing of a motion under guideline 8 for review of a

decision by a criminal division manager not to recommend or of a prosecutor not to

consent to enrollment.]

[Guideline 3

In evaluating a defendant's application for participation in a pretrial intervention program,

consideration shall be given to the criteria set forth in N.J.S.A. 2C:43-12(e). In addition

thereto, the following factors shall also be considered together with other relevant

circumstances:

(a) Age. Pretrial intervention is designed to deal only with adult defendants who, in

accordance with New Jersey law, are those persons above the age of 18. Also

included are those juveniles between the ages of 14 and 18 who are treated as adults

under R. 5:22-1 or 5:22-1.

(b) Residence. New Jersey's PTI program is designed to deal with the problem of

crime in New Jersey. Only those defendants are ineligible who reside such distances

from New Jersey as to bar effective counseling or supervisory procedures.

(c) Jurisdiction. Only defendants charged with criminal or penal offenses in the

criminal or municipal courts of the State of New Jersey may be enrolled pursuant to

R. 3:28.

(d) Minor Violations. Defendants should not be eligible for enrollment if the likely

disposition would result in a suspended sentence without probation or a fine. Those

charged with ordinance, health code and other similar violations are not eligible.

(e) Prior Record of Convictions. While the pretrial intervention program is not

limited to "first offenders", defendants who have been previously convicted of a

criminal offense should ordinarily be excluded. Such defendants who have at any

prior time been convicted of a first or second degree crime or who irrespective of the

degree of the crime have completed a term of probation, incarceration or parole within

five years prior to the date of application for diversion shall ordinarily not be

considered for enrollment in PTI except on joint application by the defendant and the

prosecutor. Defendants charged with more than one offense may be considered for

enrollment.

(f) Parolees and Probationers. Defendants who, at the time of arrest, are

probationers or parolees should be considered for enrollment under R. 3:28 only after

consultation with the Chief Probation Officer or District Parole Supervisor whose

departments supervise the defendants, and only after they have agreed that revocation

of probation or parole need not be recommended or after the appropriate authority has

made the decision not to revoke probation or parole.

(g) Defendants Previously Diverted. Supervisory treatment may occur only once

with respect to any defendant who has previously been enrolled in a program of

pretrial intervention or conditionally discharged pursuant to N.J.S.A. 24:21-27 or

N.J.S.A. 2C:36A-1. All applications for enrollment in a PTI program must proceed in

accordance with the rules of the Supreme Court and these guidelines after reference to

the Pretrial Intervention Registry established pursuant to R. 3:28(e) and N.J.S.A.

2C:43-21(a). No order to expunge or seal records of arrest after dismissal of a

complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention

of material and information in the Pretrial Intervention Registry for the purposes of

determining a defendant's prior applications to, enrollments in, and the degree of

completion of a Pretrial Intervention Program or for statistical reports required of the

Administrative Director of the Courts, by law or the Supreme Court.

(h) Eligibility Under N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The statutes set forth

the criteria for eligibility and guidelines for exclusion. Defendants eligible for pretrial

intervention or conditional discharge pursuant to N.J.S.A. 2C:36A-1 or § 27 of the

Controlled Dangerous Substances Act may be placed under the supervision of a

pretrial intervention program.

(i) Assessment of the Nature of the Offense. Any defendant charged with a crime is

eligible for enrollment in a PTI program, but the nature of the offense is a factor to be

considered in reviewing the application. If the crime was (1) part of organized

criminal activity; or (2) part of a continuing criminal business or enterprise; or (3)

deliberately committed with violence or threat of violence against another person; or

(4) a breach of the public trust where admission to a PTI program would deprecate the

seriousness of defendant's crime, the defendant's application should generally be

rejected. A defendant charged with a first or second degree offense or sale or

dispensing of Schedule I or II narcotic drugs as defined in L.1970, c. 226 (N.J.S.A.

24:21-1 et seq.) by persons not drug dependent, should ordinarily not be considered

for enrollment in a PTI program except on joint application by the defendant and the

prosecutor. However, in such cases, the applicant shall have the opportunity to present

to the criminal division manager, and through the criminal division manager to the

prosecutor, any facts or materials demonstrating the applicant's amenability to the

rehabilitative process, showing compelling reasons justifying the applicant's

admission and establishing that a decision against enrollment would be arbitrary and

unreasonable.

(j) Co-defendants. The impact of diversion on the prosecution of co-defendants is a

factor to be considered.

(k) Restitution and Community Service. A restitution or community service

requirement, or both, may be included as part of an individual's service plan when

such a requirement promises to aid the rehabilitation of the offender. Any such

requirement and its terms shall be judicially determined at the time of enrollment

following recommendation by the criminal division manager and consent by the

Prosecutor. Evidence of the restitution condition is not admissible against defendant

in any subsequent civil or criminal proceeding. Admission to the program shall not be

denied solely on the basis of anticipated inability to meet a restitution requirement.

Where appropriate to further rehabilitation, symbolic or partial restitution may be

included in the service.

Comment

Guideline 3, in its introductory statement, requires that the statutory criteria of N.J.S.A.

2C:43-12(e) be considered in the evaluation of a defendant's application for pretrial

intervention. That statutory provision requires consideration of those criteria "among

others." Accordingly, the original criteria of this guideline have also been retained as

explanatory of and supplemental to the statutory criteria. For convenience in reference,

the statutory criteria are as follows:

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to

the applicant's crime and for which services are unavailable within the criminal justice

system, or which may be provided more effectively through supervisory treatment and

the probability that the causes of criminal behavior can be controlled by proper

treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that

would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of

anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he

may present a substantial danger to others;

(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;

(11) Consideration of whether or not prosecution would exacerbate the social problem

that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(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;

(15) Whether or not the applicant's involvement with other people in the crime

charged or in other crime is such that the interest of the State would be best served by

processing his case through traditional criminal justice system procedures;

(16) Whether or not applicant's participation in pretrial intervention will adversely

affect the prosecution of co-defendants; 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.

Guideline 3(a) indicates that the services of PTI programs may, in appropriate instances

and at the request of juvenile authorities and programs, be made available to juvenile

defendants when the need for inter-program cooperative work is indicated.

Under Guideline 3(b), residents of other States, charged with offenses in New Jersey

counties in which there exist pretrial intervention programs may, with the approval of the

prosecuting attorney, the designated judge, and Administrative Office of the Courts, be

permitted to participate in such out-of-state program while enrolled pursuant to R. 3:28.

Regardless of the New Jersey jurisdiction in which the complaint, indictment or

accusation has been filed, defendants or participants may, with the agreement of the PTI

coordinators involved, be transferred for participation among the various county or

vicinage programs.

Guideline 3(c) establishes jurisdictional requirements. However, defendants charged in

other States or in the Federal Courts, may in appropriate instances and with the

permission of the Administrative Office of the Court, be permitted to participate in the

counseling or supervision regimes of the county or vicinage PTI programs on request of

the Federal Authorities or a PTI program in another State.

Guideline 3(d) sets forth the policy that those charged with minor violations should not

be admitted to a PTI program. It is felt that while no per se exclusion of non-indictable

offenses is appropriate, the PTI process is not appropriate for such cases which do not

involve a potential sentence of consequence. Rodriguez v. Rosenblatt, 58 N.J. 281, 277

A.2d 216 (1971).1

Guideline 3(e) makes it clear that a prior criminal record may be indicative of a

behavioral pattern not conducive to short term rehabilitation. Therefore, pretrial

intervention should ordinarily be limited to persons who have not previously been

convicted of a crime and hence a rebuttable presumption against enrollment is created by

the fact of a prior conviction. An even heavier onus is placed upon defendants whose

prior conviction is of a first or second degree crime or who have completed a term of

imprisonment, probation or parole within the five-year period immediately preceding the

application for diversion. As to those defendants, admission to the program is ordinarily

dependent upon the prosecutor joining in the PTI application.

Guideline 3(f) sets forth a policy permitting probationers and parolees to enter PTI

programs. Since the parolee/probationer is under the supervision of the District Parole

Supervisor or Chief Probation Officer, consultation should be sought prior to

recommending enrollment of the defendant into a PTI program.

Guideline 3(g) creates a bar against admission into a PTI program for those defendants

who have previously been diverted under N.J.S.A. 2C:43-12 et seq. or conditionally

discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. The Pretrial Intervention

Registry established pursuant to N.J.S.A. 2C:43-21(a) and R. 3:28 serves as the means of

identifying defendants previously diverted through a PTI program. This registry is

designed to complement the Controlled Dangerous Substance Registry Act of 1970,

pursuant to N.J.S.A. 26:2G-17 et seq.

Guideline 3(h) deems it appropriate that PTI programs may assume the supervision of

N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1 cases.

1 Of course, all defendants with an indictable offense are eligible for PTI.

Guideline 3(i) recognizes that consistent with State v. Leonardis, 71 N.J. 85, 363

A.2d321 (1976) and 73 N.J. 360, 375 A.2d 607 (1977), there must be a balance struck

between a defendant's amenability to correction, responsiveness to rehabilitation and the

nature of the offense. It is to be emphasized that while all persons are eligible for pretrial

intervention programs, those charged with offenses encompassed within certain

enumerated categories must bear the burden of presenting compelling facts and materials

justifying admission. First and second degree crimes (and their Title 2A cognates) and the

sale or dispensing of Schedule I and II narcotics by persons not drug dependent are

specific categories of offenses that establish a rebuttable presumption against admission

of defendants into a PTI program. This presumption reflects the public policy of PTI. PTI

programs should ordinarily reject applications by defendants who fall within these

categories unless the prosecutor has affirmatively joined in the application. A heavy

burden rests with the defendant to present to the criminal division manager at the time of

application (a) proof that the prosecutor has joined in the application and (b) any material

that would otherwise rebut the presumption against enrollment. When a defendant

charged with a first or second degree crime or the sale or dispensing of Schedule I or II

narcotics has been rejected because the prosecutor refuses to consent to the filing of the

application, or because in the sound discretion of the criminal division manager the

defendant has not rebutted the presumption against admission, the burden lies with the

defendant upon appeal to the court to show that the prosecutor or criminal division

manager abused such discretion. When an application is rejected because the defendant is

charged with a crime of the first or second degree or sale or dispensing of Schedule I or II

narcotics, and the prosecutor refuses to join affirmatively in the filing of an application or

later refuses to consent to enrollment, such refusal should create a rebuttable presumption

against enrollment.

Guideline 3(k) recognizes that the use of restitution and community service may play an

integral role in rehabilitation. Requiring either is strongly consonant with the individual

approach defined in State v. Leonardis, 71 N.J. 85, 363 A.2d 321 (1976) and 73 N.J. 360,

375 A.2d 607 (1977), which emphasized the needs of the offender. In determining the

restitution requirement and its terms including ability of the offender to pay, the Court

should rely on the procedures outlined in State in Interest of DGW, 70 N.J. 488, 361 A.2d

513 (1976) and State v. Harris, 70 N.J. 586 (1976).

Full restitution need not be completed during participation in the program. In determining

whether a restitution requirement has been fulfilled, the designated judge shall consider

good-faith efforts by the defendant. In appropriate cases, at the conclusion of

participation, a civil judgment by confession may be entered by the court. However,

restitution should never be used in PTI for the sole purpose of collecting monies for

victims.]

[Guideline 4

Enrollment in PTI programs should be conditioned upon neither informal admission nor

entry of a plea of guilty. Enrollment of defendants who maintain their innocence should

be permitted unless the defendant's attitude would render pretrial intervention ineffective.

Comment

A PTI program is presented to defendants as an opportunity to earn a dismissal of charges

for social reasons and reasons of present and future behavior, legal guilt or innocence

notwithstanding. This stance produces a relation of trust between counselor and

defendant. Within the context of pretrial intervention when and whether guilt should be

admitted is a decision for counselors. Counselors should be free to handle each case

individually according to their best judgment. Neither admission of guilt nor

acknowledgment of responsibility is required. Steps to bar participation solely on such

grounds would be an unwarranted discrimination. Nevertheless, many guilty defendants

blame their behavior on society, family, friends or circumstance, and avoid recognition of

the extent of their own role and responsibility. While such an attitude continues, it is

unlikely that behavioral change can occur as a result of short-term rehabilitative work. An

understanding and acceptance of responsibility for behavior achieved through counseling,

can and often does, result in the beginnings of the defendant's ability to control his/her

acts and is an indication that rehabilitation may, in large measure, have been achieved.]

[Guideline 5

Effective operation of pretrial intervention programs requires that a relationship of

confidence and trust be initiated and maintained between participating defendants and

staff. No information, therefore, obtained as a result of a defendant's application to or

participation in a pretrial intervention program should be used, in any subsequent

proceeding, against his or her advantage.

Comment

That a relationship based on trust is necessary for the rehabilitation/attitude change

process to operate cannot seriously be doubted, and the policy reflected in the

admissibility and defendant protection provisions of R. 3:28 and R. 1:38 recognizes such

a need. The priority of the maintenance of the counselor-participant relation over the need

for disclosures resulting from this relationship is the same, of course, as the priority for

the maintenance of, for example, the confidentiality of lawyer-client,

physician/psychologist-patient communications. (Counselors should feel free to shroud

their association in an air of confidentiality. Use of information gathered in this process

would most likely be barred from future proceedings "as contrary to basic standards of

due process and fundamental fairness." See In the Interest of J.P.B., 143 N.J.Super. 96,

362 A.2d 1183 (App.Div.1976). Of course, defendants who give false information on PTI

applications may subject themselves to charges of perjury or false swearing in instances

where supporting affidavits may be required by the criminal division manager. Affidavits

relating to the facts and circumstances of the underlying offense shall not be required.)

The essential PTI format is to give participating defendants a true second chance to

accomplish rehabilitation or to show otherwise that criminal conduct is not likely to occur

in the future; and if the defendant fails in this effort, to return him or her to that stage of

ordinary prosecution at which proceedings had been stopped under R. 3:28, and to the

extent possible, enable prosecution to take place as if such defendants had not

participated in the PTI program so that defendants will not be prejudiced by an

unsuccessful attempt to earn a R. 3:28 dismissal.]

[Guideline 6

Application for PTI should be made as soon as possible after commencement of

proceedings, but, where an indictable offense is charged, not later than 28 days after

indictment. All applications for PTI should be processed in the order of their filing.

However, where the application is filed after an indictment has been returned, the PTI

Program should complete its evaluation and make its recommendation thereon within 25

days after filing. The prosecutor should complete a review and advise the defendant

within 14 days thereafter. An appeal by defendant to the trial court shall be brought

within 10 days after the rejection notice and should be determined either before or at the

pretrial conference.

Comment

To relieve defendants from the anxiety of facing prosecution, to apply appropriate

rehabilitative measures at an early date, and to effect savings in criminal justice

resources, PTI programs should endeavor to divert qualified defendants from the ordinary

course of prosecution as soon as possible after the filing of a complaint. The court must

advise defendant of the opportunity to be considered for PTI at the first appearance

before the court. See R. 3:4-2. While a PTI application should be made before indictment,

there are nevertheless problems involved in securing public defender counsel before

arraignment. Thus, while pre-indictment filing is encouraged, the application may be

made no later than 28 days after indictment, but not thereafter. This time requirement

should permit all defendants sufficient opportunity to make a voluntary and informed

choice concerning enrollment in a PTI program.

The time requirements set forth in the guidelines for evaluation, recommendation and

review are intended to enable complete processing of a defendant's application before the

pretrial conference. See R. 3:9-1e. Early filing as encouraged by this guideline, will

afford PTI programs and prosecutors the opportunity to manage their resources better by

providing them sufficient time to make informed evaluations. The time limits for

100

processing applications are designed to facilitate speedy trials and are realistic in view of

the limited scope of review following rejection.]

[Guideline 7

Where application is made in an indictable offense, the prosecutor may withhold action

on the application until the matter has been presented to the grand jury.

Comment

Guideline 7 recognizes that at times it may be in the public interest to have a particular

defendant screened out of the criminal justice system, either by administrative decision or

grand jury action, rather than diverted into a PTI program. Thus, the prosecutor is given

the discretion to choose an appropriate route and the court will not be burdened by

hearing challenges if no indictment is to be returned. However, the option of delaying

action until the grand jury has voted on the case should be considered only in rare

instances. Generally, expeditious handling of PTI applications is in consonance with the

purpose of diversion. Of course, if the prosecutor consents to the application, enrollment

into a PTI program should not be delayed and the defendant should generally be enrolled

before indictment.]

[Guideline 8

The decisions and reasons therefor made by the designated judges (or Assignment

Judges), prosecutors and criminal division managers in granting or denying defendants'

applications for PTI enrollment, in recommending and ordering termination from the

program or dismissal of charges, in all cases must be reduced to writing and disclosed to

defendant.

A defendant may be accepted into a PTI program by the designated judge (or the

Assignment Judge) on recommendation of the criminal division manager, and with the

consent of the prosecuting attorney and the defendant. Applications that are

recommended for enrollment by the criminal division manager and consented to by the

prosecutor must be presented to the designated judge (or Assignment Judge) authorized

to enter orders. If a defendant desires to challenge the decision of a criminal division

manager not to recommend enrollment or of a prosecutor refusing to consent to

enrollment into a PTI program, a motion must be filed before the designated judge (or the

Assignment Judge) authorized to enter orders under R. 3:28. The challenge is to be based

upon alleged arbitrary or capricious action, and the defendant has the burden of showing

that the criminal division manager or prosecutor abused discretion in processing the

application. No direct appeal can be filed to the Appellate Division challenging the

actions of the criminal division manager or the prosecutor. The decision of the criminal

division manager or prosecutor may be challenged at a hearing on defendant's motion

before the designated judge (or Assignment Judge) and, thereafter, defendant or

101

prosecutor can seek leave to appeal from the court's decision denying or permitting

enrollment.

A defendant shall also be entitled to a hearing challenging a criminal division manager or

prosecutor's recommendation (following an initial or subsequent adjournment under Rule

3:28) that the prosecution of defendant proceed in the normal course. The decision of the

court shall be appealable by the defendant or the prosecutor as in the case of any

interlocutory order.

A defendant aggrieved by the decision of the designated judge or assignment judge

respecting the joint decision of the criminal division manager and prosecutor to deny an

application for participation in a pretrial intervention program may not seek appellate

review thereof until after entry of judgment of conviction. A defendant may then seek

such review even if the judgment was entered following a plea of guilty. However, a

prosecutor whose denial of consent has been reversed by the designated judge or

assignment judge may seek leave to appeal pursuant to R. 2:2.

Guidelines 2, 3, 6 and 8 and Comments to Guidelines 2, 3, 5 and 6 amended July 13,

1994 to be effective January 1, 1995; Guidelines 3(g) and (h) and Comments to

Guidelines 3(g) and (h) amended June 28, 1996 to be effective September 1, 1996;

Guideline 3(a) amended July 19, 2012 to be effective September 4, 2012[.]; Guidelines

deleted to be effective .

Criminal Statutes, Court Rules Jury Charges NJ

Saturday, February 21, 2015

Proposed Amendments to R. 3:28 - Pretrial Intervention – New Rules 3:28-1 to 3:28-10

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