C. Graves Act Offenses
In State v. Hadfield, 92 N.J. 421 (1983), the Court
expressly left the question undecided as to whether a
person charged under the Graves Act, N.J.S.A. 2C:43-6,
is per se ineligible for PTI.
D. Comprehensive Drug Reform Act
In State v. Caliguiri, the Supreme Court held that an
indictment for N.J.S.A. 2C:35-7, third degree possession
of marijuana with intent to distribute within 1,000 feet
of a school zone, is not a per se disqualifier for admission
into PTI. The Court invalidated the section of the
Attorney General’s Supplemental Directive for Prosecuting
Cases Under the Comprehensive Drug Reform Act (January
6, 1997), which required prosecutors to object to PTI
admission for persons charged under N.J.S.A. 2C:35-7.
The Court held that prosecutors may treat a charge of
N.J.S.A. 2C:35-7 as equivalent to a second-degree offense
and consider PTI presumptively unavailable. 158 N.J. at
- Nonetheless, a prosecutor must still consider all
relevant factors in making the PTI decision. To rebut the
presumption, an individual charged with violating
N.J.S.A. 2C:35-7 has to show “compelling reasons” for
admission into PTI, as explained in State v. Nwobu, 139
N.J. at 252-53.
E. Dismissal or Acquittal of Disqualifying Charges
In State v. Halm, 319 N.J. Super. at 580, the
Appellate Division held that when defendant’s first and
second degree criminal charges precluding his admission
into PTI were favorably resolved, defendant’s motion for
reconsideration of his PTI denial on his pending separate
third degree indictment was not time-barred.
V. NECESSITY OF WRITTEN STATEMENT OF
REASONS
R. 3:28, Guideline 8 requires that PTI decisions must
be supported by a written statement of reasons. In State
v. Wallace, 146 N.J. 576, 584 (1996), the Supreme
Court reiterated that written decisions facilitate judicial
review, promote a sense of fairness and aid in evaluating
the overall operation of the program. See State v. Nwobu,
139 N.J. at 249. The statement of reasons may not
simply “parrot” the language of relevant statutes, rules
and guidelines. Id. at 249, citing State v. Sutton, 80 N.J.
110, 117 (1979). At a minimum, the prosecutor should
note the factors present in defendant’s background or the
offense purportedly committed which led the prosecutor
to conclude that admission should be denied.
Additionally, the statement of reasons must not be vague.
Rather, the reasons for rejection must be stated with
“sufficient specificity so that defendant has a meaningful
opportunity to demonstrate that they are unfounded.”
State v. Maddocks, 80 N.J. 98, 109 (1979).
VI. SCOPE OF HEARING UPON REJECTION
If a defendant is rejected from PTI, he or she may
request a hearing before the judge designated to hear PTI
matters. See R. 3:28, Guideline 8. This hearing is not to
be a trial-type proceeding, but rather takes the form of an
abbreviated and informal proceeding. See State v.
Leonardis, 73 N.J. 360, 383 (1977); State v. Leonardis, 71
N.J. 85, 122 (1976). No additional evidence or
testimony may be offered, as defendant has already had
the opportunity to present any evidence thought
compelling to the program director pursuant to
Guideline 2. State v. White, 145 N.J. Super. 257 (Law Div.
1976). The hearing is solely to review the actions of the
prosecutor or program director, based on the material
submitted to the director, to determine whether
rejection of the applicant was arbitrary and capricious.
State v. Moiseeff, 165 N.J. Super. 40 (App. Div. 1978);
State v. Forbes, 153 N.J. Super. 336 (Law Div. 1977). To
hear additional material or evidence at this point would
constitute a trial de novo, and not merely a review of
defendant’s rejection. Incriminating statements made
by defendant at the PTI rejection hearing are
inadmissible at a subsequent trial for that offense. State
v. Kern, 325 N.J. Super. 435, 442-43 (App. Div. 1999).
Furthermore, it is inappropriate for a judge to preside
over a PTI rejection appeal and, after affirming that
rejection, conduct a bench trial on the criminal charges.
Id. at 444.
VII. REVIEW STANDARDS
A. Prosecutor’s Review of PTI Applications
In evaluating defendant’s application for PTI, the
prosecutor may consider many factors in deciding
whether or not to deny diversion. Although
N.J.S.A. 2C:43-12e and R. 3:28, Guideline 3, delineate
the criteria for evaluating admission into PTI, they are
not exhaustive. Defendant, notwithstanding any facts
which would ordinarily lead to exclusion, shall have the
opportunity to present to the program director, and
through the director to the prosecutor, any facts or
materials demonstrating an amenability to rehabilita-
tion, showing compelling reasons justifying admission,
and establishing that a decision against enrollment
would be arbitrary and unreasonable. R. 3:28, Guideline