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time limit, without consideration of circumstances
relevant to the participant, was not sufficient in itself to
support termination).

X. TERMINATION

A. Examples

As a starting point, persons charged with violating
conditions of PTI are afforded certain rights and due
process protections. In State v. Lebbing, 158 N.J. Super.
209 (Law Div. 1979), the trial court compared the
liberty of a participant in PTI with the liberty interest of
a defendant in a parole or probation violation situation,
and concluded that similar due process protections
should be accorded a PTI divertee before terminating
defendant’s participation in PTI. Accordingly, the court
determined that a hearing must be held at a meaningful
time and in a meaningful manner, and that there must be
(1) written notice of the claimed violation, (2) disclosure
of the evidence relied upon, (3) an opportunity to be
heard in person and to present witnesses and
documentary evidence, (4) the right to confront and
examine adverse witnesses and (5) a statement of reasons
for termination by the presiding judge.

In State v. Schroth, 299 N.J. Super. 242 (App. Div.
1997), the Appellate Division held that a defendant who
violated his PTI conditions when the prosecution was
postponed was properly returned to the criminal justice
system even though the order terminating him from PTI
was entered after the final date of the original
postponement term. Nothing in the Code or court rules
barred defendant’s PTI termination after the initial PTI
term expired. Given defendant’s inexcusable failure to
comply with the conditions of his PTI admission, the
court therefore found no reason to disturb either the
termination order or the order denying defendant’s
motion to dismiss the indictment. The court, however,
did agree that defendant’s crime preceded the enactment
of N.J.S.A. 2C:43-3.2, and thus the trial court could not
impose a Safe Neighborhoods Services Fund assessment.

In State v. Pellegrino, 254 N.J. Super. 117, 121 (App.
Div. 1992), the Appellate Division held that evidence
that, within six months after being accepted into pretrial
intervention program, defendant was arrested for
distributing drugs to an undercover police officer and was
later convicted warranted defendant’s dismissal from
program even though defendant was put on probation
rather than incarcerated for drug offense.

Distinguishable, however, is State v. Fenton, 221 N.J.

Super. 16, 27 (Law Div. 1987), where the trial court held

that the mere fact of arrest or indictment cannot provide

the sole basis for termination of PTI. This finding was

deemed to be in accordance with State v. Devatt, 173 N.J.

Super. at 195, whose general standards for termination

hearings require “a conscientious judgment” based “in

the exercise of sound discretion” that termination is

warranted. The court believed that these standards

required the inclusion of the “presumption of innocence”

in termination proceedings and therefore preclude

termination based only on an arrest or indictment. State

v. Fenton, 221 N.J. Super. at 24. This holding is contrary

to State v. Wilson, 183 N.J. Super. 86 (Law Div. 1981),

which held that proof of indictment sufficiently

supported the State’s motion for termination since the

divertee was given an opportunity to explain the

surrounding circumstances at the hearing. The Fenton

court also held, contrary to Wilson, that due process

required representation by counsel at a hearing to

terminate PTI. State v. Fenton, 221 N.J. Super. at 22.

XI. POST-CONVICTION RELIEF

In State v. Staruch, 326 N.J. Super. 245, 250 (App.

Div. 1999), the Appellate Division held that a defendant

who failed to file an appeal of his PTI denial could not

seek a remedy by way of a petition for post-conviction

relief. In Staruch, defendant’s application for enrollment

into PTI was denied in June 1996. He then pleaded

guilty to a count of the indictment charging him with

distribution of marijuana in a school zone, and was

sentenced to a four year term with a one year period of

parole ineligibility. More than one year after his

December 1996 sentencing, defendant sought post-

conviction relief by virtue of the rejection of his

application for PTI. See State v. Caliguiri, 158 N.J. at 44 ;

State v. Baynes, supra, 148 N.J. at 451. In denying post-

conviction relief, the court concluded that it was not a

substitute for appeal by a defendant who declined to

appeal a rejection, and defendant had no constitutional

basis in seeking such relief. State v. Staruch, 326 N.J.

Super. at 250.