Qualifying for New Jersey’s Pretrial Intervention Program

What Is Pretrial Intervention?

New Jersey law and court rules offer some defendants charged with crime an opportunity to divert their criminal case to out-of-court procedures. New Jersey calls this diversion the Pretrial Intervention (PTI) Program. New Jersey Stat. 2C:43-12 authorizes the PTI Program. New Jersey Court Rule 3-28 provides the procedures for the PTI Program. The PTI Program supplies treatment, training, monitoring, and testing to help the defendant recover from addiction or otherwise correct and overcome conditions contributing to the criminal charge. Defendants who complete the PTI Program and document their completion can have the charge dismissed and expunged.

Who Generally Gets PTI Diversion

New Jersey's Pretrial Intervention Program isn't for hardened criminals facing serious charges of violent crime. The PTI Program is generally for first-time offenders whose wrongs were the result of substance abuse, addiction, and other behavioral issues or conditions that the law considers treatable and correctable. New Jersey Stat. §2C:43-12(a) provides that PTI Program participation “should ordinarily be limited to persons who have not previously been convicted of any criminal offense under the laws of New Jersey, or under any criminal law of the United States, or any other state….” Other provisions summarized below show that repeat offenders can qualify for the PTI Program, although doing so is harder.

PTI Program Expectations and Purposes

The PTI Program substitutes services for punishment. The program's hope and expectation is that it can rehabilitate the defendant, deterring the defendant from a life of crime. New Jersey Stat. §2C:43-12(a) goes on to list these purposes of PTI Program diversion, as indicia for who should get PTI diversion:

• to provide participants with early rehabilitative services or supervision that should deter future criminal behavior
• to avoid harming the defendant with criminal sanctions when rehabilitative services would likely deter criminal conduct
• to recognize that some offenses are victimless, warranting the least burdensome form of prosecution
• to relieve the court's criminal calendar to focus on more serious crimes and severe correctional problems
• to deter future criminal or disorderly behavior through supervisory treatment

Persons Ineligible for PTI

Some criminal defendants are ineligible for New Jersey's PTI Program. New Jersey Court Rule 3:28-1(c) makes ineligible those defendants who have already entered a program of pretrial intervention. A defendant gets only one shot at rehabilitation through diversion. A defendant gets only one chance at the PTI Program. Under the same court rule, certain petty offenses and ordinance and health code violations also do not qualify for PTI unless the offense involves domestic violence.

Prosecutor Consent for PTI

New Jersey Court Rule 3:28-1(d) makes other defendants ineligible unless the prosecutor consents to an application. Defendants who need prosecutor support for PTI include those who have already suffered a prior conviction and now face a second-offense charge. New Jersey Court Rule 3:28-3(c) confirms, “Defendants charged with more than one offense may be considered for enrollment.” PTI Program participation is thus available to more than just first-time offenders. It's just harder for a second-time offender to qualify, given the second-time offender's need for prosecutor consent. Defendants charged with crimes the penalties for which presume incarceration or a mandatory minimum of parole ineligibility also need prosecutor consent for a PTI application.

Obtaining Prosecutor Consent for PTI

Getting a prosecutor to consent to a defendant's PTI Program admission is no small task, at least not according to the court rules. New Jersey Court Rule 3:28-3(b) states the procedures a repeat offender or person charged with an incarceration-presumed crime must follow to attempt to gain prosecutor consent. New Jersey Court Rule 3:28-3(b)(1) requires “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.” New Jersey Court Rule 3:28-3(b)(3) also requires the prosecutor to consider the victim's position on the defendant's PTI Program request. It is not easy for a defendant to come up with extraordinary and compelling circumstances. That defendant must retain skilled and effective criminal defense counsel to make that rare showing. It is also not easy for a defendant to find a victim willing to let the defendant avoid prosecution for the crime.

Presumption Against PTI Participation

In some cases, a defendant may be eligible for PTI Program diversion, but the court rules presume against the defendant's admission. New Jersey Court Rule 3:28-1(e) provides that if the defendant is a public employee or official, or if the crime involved domestic violence, then the judge must presume not to admit the defendant. New Jersey Court Rule 3:28-1(e)(3), the defendant can overcome the presumption against PTI admission only by submitting “a statement of the extraordinary and compelling circumstances that justify consideration of the application notwithstanding the presumption against admission. A defendant attempting to show compelling circumstances for admission, despite the presumption against it, will need a skilled, experienced, and especially effective attorney advocate.

Procedural Benefits of Pretrial Intervention

Defendants who qualify for pretrial intervention have plenty of reasons to pursue the program. Avoiding the criminal charge and conviction, and getting the charge expunged, is prime among those reasons. As soon as the judge orders diversion into the PTI Program, New Jersey Stat. §2C:43-12(e) provides that the diversion “postpone[s] all further proceedings against” the defendant who is entering the program. Instead of going through a potentially arduous, embarrassing, and risky criminal prosecution that could result in a conviction, fine, and jail term, the defendant participates in rehabilitative services. That's a big procedural difference. Criminal procedure is fraught with conviction risk. Rehabilitative services carry no conviction risk. You just have to complete the program, which presumably is a needed and beneficial program. A clean criminal record is a great personal asset. A conviction on one's record can destroy a job, career, family and network relationships, other opportunities, and one's reputation. A conviction can also affect a professional license, immigration status, security clearance, and other things that can be especially important to some persons. PTI Program participants have plenty of good reasons to choose rehabilitation over criminal proceedings.

Personal Benefits of Pretrial Intervention

As big as the procedural benefits are for diversion over criminal prosecution, diversion can also have big personal benefits. Personal recovery from the addiction or other behavioral issues that contributed to the crime can be just as important and just as valuable as avoiding conviction. Unfortunately, some people need the incentive of a criminal charge and diversion program to get rehabilitative services they could have pursued on their own. If that's you, then make the best of a bad situation. If it takes a criminal charge to spur intervention, addiction treatment, counseling, monitoring, and other rehabilitation, then so be it. Better, in that case, to avoid prosecution altogether by entering the PTI Program. The PTI Program can thus be a win-win proposition. The participant gets cured of the behavioral disorder while also avoiding prosecution.

PTI Is Not for Everyone

As much as there is to recommend New Jersey's PTI Program, the program is not for everyone. Sometimes, a criminal charge results from a mistake, misidentification, or misunderstanding. A criminal charge doesn't mean that the defendant is guilty of the crime. Innocent defendants have little incentive to enter a diversion program, if they reasonably expect to beat the criminal charge, and if they don't need the program's rehabilitation services. If you can beat the criminal charge, then maybe you don't need a diversion program. But if you need rehabilitative services, then maybe you should enter the diversion program even if you reasonably believe you can beat the criminal charge. These are the questions you need to consider when determining whether to seek the PTI Program.

Guilty Plea as Condition for PTI Participation

In some cases, the defendant who qualifies for the PTI Program must enter a guilty plea when admitted to PTI. New Jersey Court Rule 3:28-5(b)(2) requires a guilty plea for PTI admission whenever the charge involves a first or second-degree crime, the defendant has a prior conviction for a first or second-degree crime, the crime is of the third or fourth degree but involves domestic violence, or the crime is for disorderly conduct involving domestic violence. The guilty plea means that if the defendant does not complete the PTI Program and obtain dismissal and expungement of the charge, and the court instead reinstates the charge, the defendant loses the opportunity for a trial. The defendant must either complete PTI or accept guilt for the crime. The PTI rules raise the stakes for these more serious crimes.

Attorney Advice Whether to Enter the PTI Program

Whether you can beat the criminal charge, though, isn't something you should be determining on your own. Unless you are an experienced prosecutor or criminal defense attorney, you probably lack the law knowledge and judgment to know your chances. You are also too closely involved to make a sound judgment. We're all too good at fooling ourselves. Lawyers know better than anyone that when the matter is your own, you especially need independent advice. You need the advice of a skilled and experienced criminal defense attorney to help you evaluate your chances. Retain New Jersey criminal defense attorney Joseph D. Lento and the Lento Law Firm to help you decide whether the PTI Program is right for you.

Qualifying for the PTI Program

Depending on the advice and counsel of your retained criminal defense attorney, your best option may be to qualify for New Jersey's Pretrial Intervention Program. The big question, then, is whether the defendant who wishes to qualify can do so under the PTI Program's criteria. New Jersey Stat. 2C:43-12(e) requires that the prosecutor and PTI program director recommend to the court whether the defendant should qualify. New Jersey Stat. 2C:43-12(e) requires that in making that recommendation, the prosecutor and program director must consider these criteria:

1. The nature of the offense
2. The facts of the case
3. The defendant's motivation and age
4. The victim's desire to forego prosecution
5. The defendant's personal problems and character traits relative to services available or not available in jail
6. Whether the defendant is likely to change with treatment
7. The needs and interests of the victim and society
8. Whether the defendant exhibits a pattern of antisocial behavior
9. The defendant's prior crimes suggest a substantial danger to others
10. Whether the crime was violent or injurious
11. Whether prosecution would worsen the defendant's social problem
12. The defendant's history of violence toward others
13. The defendant's involvement with organized crime
14. Whether the public need for prosecution outweighs the value of treatment
15. Whether the crime involved others needing prosecution
16. Whether diversion would affect the prosecution of co-defendants
17. Whether abandoning prosecution would harm society more than benefit the defendant

Applying for Pretrial Intervention

The rules for applying for the PTI Program are straightforward. The defendant must complete and submit the Program form. The form requires the defendant to accurately disclose past convictions, past diversion, and current charges. The defendant must also supply abundant personal information. If the pending criminal charge involves potential jail time, then the defendant must also write a personal statement to submit with the application. The persuasiveness of the personal statement can be the difference between qualifying or not qualifying for PTI. Your retained criminal defense attorney should have the skill and experience to assist with the drafting of an articulate, complete, and persuasive personal statement. A strong personal statement includes evidence of such important things as:

• your interests, ambitions, and aspirations
• your commitments, character, and values
• your ability to learn, change, and mature
• your family support
• your income-earning skill and financial resources
• your volunteering and other ability to contribute to community welfare
• your awards and achievements
• your leadership
• your prospects on program completion

When to Seek PTI Diversion

The PTI statute suggests that you should have some time to decide whether to pursue the PTI Program, but the court rule for PTI provides otherwise. New Jersey Stat. §2C:43-12(e) provides for referral to PTI any time after the criminal charge but before trial. You can't wait until after your trial begins and certainly not until after the judge or jury decides the criminal charge. But otherwise, New Jersey Stat. §2C:43-12(e) permits you to apply at just about any time during the criminal proceeding. But New Jersey Court Rule 3:28-2 permits no such delay. Instead, the Court Rule states: “Applications for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than the Initial Case Disposition Conference, unless good cause is shown or consent by the prosecutor is obtained.” Don't wait to decide on PTI. Your retained criminal defense attorney will know when and how to apply for PTI, but it is likely to be at the earliest possible time.

The Role of a Criminal Defense Attorney in PTI

Skilled and experienced criminal defense counsel play a significant role in helping a defendant qualify for the PTI Program. Your retained criminal defense attorney can ensure that the program manager and prosecutor know that you wish to qualify for PTI. Your defense attorney can also help you present the information, background, and context for them to understand that you do qualify for PTI and should receive the benefit of its services. Your defense attorney can also help you advocate for the services you need rather than unhelpful services that require you to jump through hoops and could trip you up. Your defense attorney can also help you document your completion of PTI Program terms and conditions when documentation is critical to getting the criminal charge dismissed and expunged. Retain a skilled and experienced criminal defense attorney to help you qualify for, complete, and document completion of PTI.

The Decision on PTI Participation

When the PTI program director, prosecutor, or judge makes a recommendation or decision on your entry into the PTI Program, you will know what they recommended or decided and why. New Jersey Stat. 2C:43-12(c) requires that PTI recommendations and decisions, and the reasons for those recommendations and decisions, be in writing. New Jersey Stat. 2C:43-12(c) also requires that the defendant get a copy of that writing. You'll know the recommendation or decision and its basis because you will have it in writing.

Appeal of a PTI Denial

The prosecutor has certain authority over the PTI decision, either to recommend against PTI or, in certain cases, to withhold consent to PTI, refusing to allow the court to consider PTI. But the prosecutor's authority is not final. Under New Jersey Court Rule 3:28-6, a defendant who suffers from a prosecutor's recommendation against PTI or refusal to consent to PTI may appeal the decision to the judge or the court's presiding judge within ten days of the denial. New Jersey Court Rule 3:28-6(b)(1) requires the appeal to show that the prosecutor's decision was a “patent and gross abuse of discretion.” Under the same rule, a defendant may challenge the PTI program manager's recommendation against PTI. The defendant must show the manager's adverse recommendation to have been arbitrary and capricious. Those review standards are very high bars. The defendant has a difficult appeal to make. Retain New Jersey criminal defense attorney Joseph D. Lento and the Lento Law Firm if you need to appeal the denial of PTI.

PTI Program Completion or Termination

New Jersey Court Rule 3:28-7(a) limits the duration of a PTI diversion to thirty-six months. At the end of that thirty-six months, New Jersey Court Rule 3:28-7(b) gives the judge three options. The judge may dismiss the charge, extend the diversion for another thirty-six months, or proceed with the prosecution on the criminal charge. In short, if the defendant fails to complete the PTI program's terms and satisfy the program's conditions, the court either gives the defendant another chance for three more years or reinstates the criminal charge. The prosecutor and program manager may recommend to the judge how to proceed.

Opportunity to Challenge Reinstatement of Charges

Unfortunately, some defendants don't complete the PTI Program or fail to document completion, resulting in reinstated charges. And sometimes, the prosecutor or program manager just gets it wrong, failing to accept that the defendant has completed the PTI program. A defendant who faces a recommendation for reinstated criminal charges at the end of the defendant's PTI Program has the right to challenge the recommendation. Under New Jersey Court Rule 3:28-7(b)(3), the court must hold a hearing, giving the defendant's retained criminal defense attorney the opportunity to advocate for the charge's dismissal. That hearing gives the defendant's retained criminal defense counsel one final critical role in helping the defendant obtain the best possible outcome. Criminal defense counsel have many critical roles to play in helping a defendant obtain and complete PTI diversion, gaining dismissal of all charges.

New Jersey PTI Program Attorney Available

New Jersey criminal defense attorney Joseph D. Lento and the Lento Law Firm are available for your aggressive, sensitive, and effective representation in any matter relating to Pretrial Intervention Program diversion. Attorney Lento knows the laws, rules, and customs relating to PTI diversions. He knows how program managers, prosecutors, and judges prefer to proceed on PTI recommendations and decisions. You need a lawyer with the knowledge and skill to ensure that the PTI Program is available to you if you and your attorney agree that PTI is your best option. Don't miss out on an opportunity to find the silver lining in your criminal charge. PTI diversion can lead to the best possible outcome, including your rehabilitation and dismissal of all criminal charges. Contact the Lento Law Firm at 888-535-3686 or online to retain and consult with Attorney Lento.