v. DeMarco, 107 N.J. 562, 566-67 (1987)). In reviewing
a prosecutor’s denial of consent, if the prosecutor’s
conduct amounted only to a simple abuse of discretion,
the court should not enroll defendant in PTI without
prosecutorial consent. Rather, it should remand the case
to the prosecutor for reconsideration, unless the
prosecutor would be unlikely to reconsider its decision.
Id.
a. ExamplesIn State v. Caliguiri, supra, the Supreme Court
remanded the case for reconsideration of defendant’s PTI
application where defendant was charged with third-
degree possession of marijuana with intent to distribute
within 1,000 feet of school property. The Court held
that the prosecutor failed to consider all relevant factors,
and the application was rejected solely because defendant
had committed a school zone offense. Id. at 44.
In State v. Kern, 325 N.J. Super. at 447, the Appellate
Division reversed the trial court’s denial of defendant’s
PTI application and remanded the case for reevaluation
by the prosecutor. The court found, inter alia, that the
interviewer for the PTI program was hostile to defendant
and had cast defendant in the worst possible light;
although no patent and gross abuse of discretion existed,
a remand was necessary because inappropriate factors
were considered and all relevant factors were not fairly
addressed.
In State v. Maldonado, 314 N.J. Super. 539 (App.
Div. 1998), the Appellate Division reversed the trial
court’s denial of defendant’s PTI application. A grand
jury had indicted defendant and others for conspiring to
both possess and distribute cocaine, and although the
PTI director had approved defendant’s application for
admission, the State had refused to consent. At least one
coindictee, though, was admitted into PTI. The
appellate court determined that the State had failed to
explain why that coindictee was admitted into PTI while
defendant was not. The court therefore reversed the order
denying defendant’s PTI admission, and remanded for a
new hearing at which the prosecutor had to set forth
reasons why defendant and a coindictee were treated
different.
In State v. Burger, 222 N.J. Super. 336 (App. Div.
1988), the Appellate Division considered the rejection of
defendant from PTI on the basis of her participation in a
continuing criminal enterprise -- a six year scheme of
welfare fraud through which defendant obtained
$25,000 in excess payments. While acknowledging that
defendant fell within the ambit of R. 3:28, Guideline
3(I)(2) that generally precludes admission of a defendant
whose crime constitutes a continuing criminal
enterprise, the court held that a remand for
reconsideration by the prosecutor was nevertheless
appropriate. This was based on the court’s
determination that factors indicating defendant’s
amenability to correction and responsiveness to
rehabilitation had not been fully explored by the
prosecutor in rejecting the program director’s
determination that defendant was a suitable PTI
candidate. Id. at 342; see N.J.S.A. 2C:43-12b. Although
the prosecutor’s decision did not amount to a patent and
gross abuse of discretion, since the statement of rejection
made no reference to any individual factors applicable to
defendant (e.g., defendant’s background and factors
relating to the offense), the conclusion that defendant
was not amenable to rehabilitation could not be
sustained. State v. Burger, 222 N.J. Super. at 342.VIII. EFFECT OF SUCCESSFUL COMPLETION
In State v. Singleton, 143 N.J. Super. 65 (Law Div.
1976), defendant was admitted to PTI in Essex County
and successfully completed the program. An indictment
for charges stemming from the same episode was
subsequently returned in Passaic County. Based upon
the doctrines of compulsory joinder and collateral
estoppel, the court dismissed the Passaic County
indictment because defendant could reasonably expect
that his participation in PTI would terminate
prosecution for the entire episode. See also State v. Von
Smith, 177 N.J. Super. 203 (App. Div. 1980).IX. RESTITUTION
In State v. Spann, 160 N.J. Super. 167 (Law Div.
1978), the trial court held that defendant’s admission to
PTI may be conditioned upon making restitution (see
Guideline 3(k), which incorporates this holding).
However, the court must conduct a hearing to determine
the applicant’s ability to pay and to settle the restitution
amount, if contested. See State v. Jamiolkoski, 272 N.J.
Super. 326 (App. Div. 1994), and State v. Castaldo, 271
N.J. Super. 254, 261 (App. Div. 1994) (both holding
that defendant is entitled to prosecutorial reconsidera-
tion of the restitution condition where there was a bona
fide dispute as to the amount owed). Termination is
appropriate where defendant fails to make restitution
upon which the PTI enrollment was conditioned. Id. at
173; but see State v. Devatt, 173 N.J. Super. 188 (App.
Div. 1980) (holding that a decision to terminate for
failure to make restitution within statutorily prescribed