Proposed Amendments to R. 7:8-8(a)—Lengthening the Retention Period for Recordings of Court Sessions
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).
2
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
3
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.
4
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
5
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.
6
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
7
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.
8
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
9
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.
10
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.
11
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
12
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.
13
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.
14
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.
15
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
16
(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
17
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
18
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
19
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
20
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
21
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).
22
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
23
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
24
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.
25
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
26
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
27
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.
28
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
29
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
30
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.
31
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.
32
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
33
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.
34
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
35
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).
36
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
37
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
38
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
39
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
40
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.
41
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.
(c) Persons Ineligible to Apply for
Pretrial Intervention.
(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.
42
(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 .
43
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
44
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
45
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.
46
The proposed language for new R. 3:28-2
follows.
47
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 .
48
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.
49
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.
50
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.
51
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.
52
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
53
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.
54
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
55
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.
(c) Defendants Charged with More than One
Offense. Defendants charged
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 .
56
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.
57
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
58
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.
59
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.
60
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 .
61
e. 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
62
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
63
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).
64
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).
65
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.
66
(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.]
67
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.
(c) A Superior Court 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.
(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 .
68
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
69
“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).
70
(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.
71
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.
72
(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.
(c) If the rejection is upheld by the
judge, there shall be no pretrial review by an
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 .
73
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
74
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
75
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.
76
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.
77
[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
78
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
79
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.]
80
[(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.]
81
Note: Adopted October 7, 1970, effective
immediately. Paragraphs (a)(b)(c)(d) amended
June 29, 1973, to be effective September
10, 1973; caption and paragraphs (a)(b)(c)(d)
amended April 1, 1974 effective
immediately; paragraph (e) adopted January 10, 1979 to
be effective January 15, 1979; paragraphs
(a)(b)(c)(d) amended August 28, 1979 to be
effective September 1, 1979; paragraphs
(f) and (g) adopted October 25, 1982 to be
effective December 1, 1982; paragraphs (a)
(b) (c) (d) and (f) amended and paragraph (h)
added July 13, 1994, to be effective
January 1, 1995; paragraph (f) amended June 28,
1996 to be effective September 1, 1996;
paragraph (f) amended July 12, 2002 to be
effective September 3, 2002; paragraph
(c)(4) amended June 15, 2007 to be effective
September 1, 2007[.]; paragraphs (a), (f),
(g) and (h) deleted and paragraphs (b), (c), (d),
and (e) amended and redesignated as
paragraphs (a), (b), (c), and (d) respectively to
be effective .
82
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.
83
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.
(c) No order to expunge or seal records of
arrest after dismissal of a complaint,
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 .
84
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.
85
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 .
86
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
87
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.
88
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 .
89
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.
90
[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.
91
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.
92
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
93
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
94
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;
95
(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.
96
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.
97
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.]
98
[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
99
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 .