2; see also State v. Markt, 156 N.J. Super. 486 (App. Div.
1978); State v. Pickett, 186 N.J. Super. 599 (Law Div.
1982).
The primary responsibility for administration rests
with the prosecutors and program directors, and judicial
review is available to check only the most egregious
examples of injustice and unfairness. State v. Wallace,
146 N.J. at 585; State v. Leonardis, 73 N.J. at 381. The
need to preserve prosecutorial discretion in deciding
whether to divert a particular defendant from the
ordinary criminal process is critical because it is the
prosecutor’s responsibility to decide whom to prosecute,
and PTI serves to augment, not diminish, a prosecutor’s
options. State v. Nwobu, 139 N.J. at 246; State v.
Dalglish, 86 N.J. 503, 509 (1981). The prosecutor’s
decision to reject defendant’s admission into PTI is
entitled to great deference. Only rarely should a
prosecutorial veto be overturned; the prosecutor’s
statement of reasons should be read liberally and in
depth. State v. Wallace, 146 N.J. at 589.
- Examples
In State v. Wallace, supra, the Court held that the
Appellate Division had failed to view the prosecutor’s
decision through the filter of the highly deferential
standard of review. The Court found that the prosecutor
had weighed the relevant and material factors and had
reached a conclusion that defendant was not an
appropriate candidate for PTI. The Court also noted that
the Appellate Division essentially evaluated the case as if
it stood in the shoes of the prosecutor, whereas it should
have focused on whether the rejection was arbitrary,
irrational or otherwise an abuse of discretion. 146 N.J. at
- Thus, the Court unanimously upheld the
prosecutor’s decision rejecting defendant’s application
for PTI.
In State v. Nwobu, supra, the Supreme Court
reaffirmed the wide discretion given to prosecutors in
determining which defendants are admitted to PTI.
Significantly, the Court held that when confronted with
a second degree charge, defendant must establish
“compelling reasons” to overcome the presumption
against admission. See Guideline 3(I). The Court
adopted the Attorney General’s definition of the term
“compelling reasons,” analogizing the presumption in
Guideline 3(I) with the related context of criminal
sentencing, and concluding that for first and second
degree offenders there must be a showing greater than
that the accused is a first-time offender and has admitted
or accepted responsibility for the crime. The
presumption against admission is not overcome except
when defendant “demonstrates something extraordi-
nary, unusual or idiosyncratic in his or her background.”
39 N.J. at 253.In State v. Seyler, 323 N.J. Super. 360 (App. Div.
1999), aff’d 163 N.J. 69 (2000), the Appellate Division
reversed the trial court’s order directing defendant’s
admission into PTI. Defendant was a former police
officer charged with third degree theft and multiple
fourth degree unsworn falsifications to authorities
stemming from a four year welfare fraud scheme
undertaken while he attended dental school. These
crimes were, pursuant to Guideline 3(I)(2), part of a
continuing criminal enterprise calculated to defraud the
State of welfare funds, thereby making defendant
presumptively ineligible for PTI admission. No
compelling reason, including his possible preclusion
from becoming a doctor, justified admission.In State v. Imbriani, 291 N.J. Super. 171 (App. Div.
1996), the Appellate Division affirmed the trial court’s
denial of PTI to a former Superior Court judge who
pleaded guilty to N.J.S.A. 2C:20-9, third degree theft by
failure to make required disposition of property received.
The prosecutor indicated that he would not object to
defendant’s admission into PTI if the program director
recommended admission. Notwithstanding defendant’s
motivation -- to pay for college education of his children
-- and that he had “spent a lifetime dedicated to the
application of justice,” the director declined to admit
him into PTI, a decision the prosecutor later endorsed.
The court held that the decision was based upon
consideration of all of the factors referenced by the
director, and should not be disturbed. The court further
held that the program director was not precluded from
evaluating defendant for PTI merely because the theft
occurred from a corporation of which the director was a
principal shareholder.In State v. Kraft, 265 N.J. Super. 106 (App. Div.
1993), the Appellate Division held that the trial court
had erred in failing to defer to the prosecutor’s decision
and in substituting its own judgment in what amounted
to a de novo review of defendant’s application. The
prosecutor’s reasons for denying PTI carefully relied
upon the criteria set forth in the statute, and included the
nature of the offense charged (burglary), the needs and
interests of society, whether or not the crime was of such
a nature that the value of PTI treatment would be
outweighed by the public need for prosecution, and
whether or not the harm done to society by abandoning
the prosecution would outweigh the benefits to society