cdTOCtest

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

44. 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