Written by attorney Thomas William Hartmann

Pretrial Intervention – A New Jersey Sentencing Diversion Program

Pretrial Intervention or PTI allows selected defendants to avoid prosecution and sentencing for charges against them. Most importantly, if one successfully completes this selective, rehabilitation-oriented, PTI program, the original charges are dismissed – with no criminal conviction. The purpose of the program has been described as follows: “PTI strives to solve personal problems which tend to result from the conditions that appear to cause crime, and ultimately, to deter future criminal or disorderly behavior by a defendant."

Eligibility. In theory, the PTI Guidelines say that “Any defendant accused of crime shall be eligible for admission into a PTI program." PTI is not even limited to first time offenders – though in reality “participation is normally limited to first offenders who have not had prior rehabilitative opportunities such as probation or parole."

Certain defendants must get the consent of the prosecutor before their applications will even be considered:

· Defendants with a prior conviction for or who are currently charged with a first or second degree (more serious) offense;

· Defendants who have completed a term of probation, incarceration or parole within the five years before the application for PTI;

· Defendants charged with the sale or dispensing of Schedule I or II drugs.

Experience has shown that in most cases, prosecutors will not consent to PTI in such circumstances, and there is a presumption against admission into the program. Likewise, if the crime is part of organized crime activity, is a continuing criminal enterprise, involves deliberate violence or includes a breach of public trust, PTI is generally not available.

From the other end of the spectrum, those charged with minor violations that would likely result in suspended sentences or those charged with ordinance, health code or similar violations are not eligible. Most motor vehicle offenses -- even if they carry a mandatory sentence – do not have access to PTI

Some counties in New Jersey allow PTI for those charged with disorderly offenses, but most require that the person be charged with an indictable (felony type offense).

Defendants who have completed PTI before are not eligible a second time. Those who are on probation or parole, while eligible to apply, will not be accepted unless the probation or parole officer decides not to revoke the probation or parole as a result of the arrest that is now leading to the PTI application.

Applying. The defendant must apply within 28 days after indictment. The defendant will be interviewed by the county PTI director or staff. This is a comprehensive personal history interview. The defendant also has the opportunity to submit any favorable information he might gather from employers, teachers, ministers, friends and others to show amenability to rehabilitation.

Acceptance. Three people must approve a defendant’s admission to PTI: the PTI director or criminal division manager; the prosecutor; and the designated judge. If the criminal division and prosecutor recommend acceptance into PTI, the judge must approve admission unless he finds a “patent and gross abuse of discretion."

If the judge allows admission, the case can be postponed for up to 36 months, though usually the postponement order is for six to 12 months.

The PTI Guidelines list 17 factors to consider in evaluating an application, including the nature of the offense, the facts, the motivation and age of the defendant, the willingness of the victim to forego prosecution, the personal background of the defendant, the defendant’s conduciveness to change, the history of physical violence, and the needs of society, among others.

Rejection. If a defendant is rejected by either the criminal division manager or the prosecutor or both, he can seek reconsideration or appeal directly to the judge. The judge can grant the appeal (if he finds that the manager or prosecutor acted with a “patent and gross abuse of discretion), send the file back for reconsideration or deny the appeal.

Program Requirements. Supervision under PTI often lasts from one to three years. Certain standard conditions are imposed on those accepted, such as random urine monitoring and assessments for fees, penalties and fines. Additional conditions may be imposed such as community service, payment of restitution, and submission to psychological or drug and alcohol evaluations.

Successful Completion. Once a defendant successfully completes the program, the judge enters an order dismissing the complaint, indictment or allegation. The defendant can also have his record fully expunged of any arrest record. The only remaining record of the arrest will be in the PTI Registry, which allows the state to keep basic records of enrollment and completion and to check to see is a current applicant for PTI has previously been enrolled in the program.

Termination from PTI. Should a defendant fail to successfully complete PTI, the defendant is entitled to a hearing. But if the judge finally concludes that the defendant should be removed from PTI, the case returns to normal prosecution processing. The most common reasons for failure include an uncooperative attitude, failure to report for counseling, arrest on another charge or conviction of another crime.

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