State v. A.S., App. Div. (Approved for Publication February 26, 2016)
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In this case the defendant was initially accepted into New Jersey’s Pre-Trial Intervention Program; a first offenders rehabilitation program/probation program accessible to those who have no prior criminal record and are charged with 3rd or 4th degree non violate crimes. If the defendant remains arrest free and does not violate the terms of the PTI probation; case specific requirements such as:
- restitution
- drug testing
- payment of fines and costs
- paying assessments
- maintain employment
- psychological evaluation and any recommended therapy
- some type of reporting to probation component for ‘monitoring by probation and
- some form of community service,
the charges will be dismissed at the conclusion of the PTI period. When dismissed, the defendant will not have any criminal conviction on their record.
PTI programs can last 6-12 months however as of late many PTI participants with drug problems or large amounts of restitution have PTI monitoring terms lasting 24-36 months to insure drug free compliance or full payment of restitution. In this particular case the defendant failed to remain drug free, and did not report to probation. Shortly after his admission into the program the county prosecutor’s office filed an application with the court to terminate the defendant from PTI due to his non-compliance with the terms of his particular PTI Order. New Jersey’s PTI statutory scheme allows first time offenders only one bite of the apple. If they violate the terms of the PTI ‘probation’ they are effectively terminated, and the defendant has to face the actual criminal charge and possibly either go to trial or plead guilty resulting in a criminal conviction. Against that back drop, this defendant was kicked out of PTI because this defendant failed to report to his probation officer; failed to submit to a substance abuse evaluation; tested positive for marijuana use; failed to pay fines; and failed to complete community service.
This appellate court has determined when a defendant is being kicked out of PTI for procedural or substantive violations of his/her PTI conditions on application of the prosecutor the Rules of Court and the PTI statute (N.J.S.A. 2C:43-12(g)(1) and Guideline 3(g) of Rule 3:28) require the trial court conduct a hearing and make a ‘conscientious judgement’ taking into consideration whether the defendant is fit to continue in the program before deciding whether the defendant ‘willfully’ violated his or her PTI conditions which would justify termination from the PTI program. Further, this decision requires the trial court place on the record its findings of fact addressing whether the defendant:
- willfully violated his PTI conditions,
- whether he remains a suitable candidate for supervisory treatment, and
- whether dismissal from PTI or modification thereof is warranted.
In this case because those three prerequisites were not satisfied by the court below, the matter was remanded for a hearing to address those threshold factual questions.
N.J.S.A. 2C:43-12(g)(1) provides: Supervisory treatment may occur only once with respect to any defendant and any person who has previously received supervisory treatment via a conditional discharge pursuant to N.J.S.[A.] 2C:36A-1, or a conditional dismissal pursuant to 2C:43-13.1 et al.) shall not be eligible for supervisory treatment under this section. Guideline Diverted[,]” states in part that “[s]upervisory treatment may occur only once with respect to any defendant who has previously 3(g) of Rule 3:28, entitled “Defendants Previously been enrolled in a program of [PTI] or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1.” Pressler & Verniero, Current N.J. Court Rules, Guideline 3(g) to R. 3:28 (2016).