State v. Robert Duane Green, ? N.J. Super. ?, 2010 N.J. Super LEXIS ? (June 7, 2010) – Remanded for reconsideration of defendant’s PTI application.
“This case is before us on remand from the Supreme Court. The case arose from a Law Division order denying defendant Robert Green’s appeal from his exclusion from the pre-trial intervention program (PTI). In our opinion, we concluded, based on the record then before us, that Green had not been permitted to apply for PTI. State v. Green, 407 N.J. Super. 95 (App. Div.), remanded, 200 N.J. 471 (2009)…. The State petitioned for certification from our decision and filed a motion to supplement the record with materials intended to show that defendant had been permitted to apply for PTI under the new policy. The Court granted the motion and remanded the case to us to reconsider in light of the supplemental materials…. The supplemental materials include a June 11, 2009 certification from the vicinage PTI director…. We have reviewed this form. It is captioned ‘Notice of Pretrial Intervention (PTI) Ineligibility,’ and the first sentence unequivocally states: ‘Your case has been pre-screened by the Monmouth Vicinage Criminal Division and found to be ineligible pursuant to R. 3:28.’… [T]he Notice of PTI Ineligibility, while no doubt well-intentioned, is confusing. By lumping together applicants who are ineligible with those who are eligible but have hurdles to overcome, the form may discourage eligible defendants from applying for PTI. Any defendant reading the form could readily conclude that he or she was ‘ineligible’ for PTI and should not apply…. At a minimum, PTI forms and directions should explain, in plain language that would make sense to a defendant, the criteria for admission to the program and the process for applying…. [T]he criminal division may evaluate the merits of a PTI application when it is first submitted, or may withhold evaluation of an application until the prosecutor has considered it…. However, at some point the criminal division must consider the merits of the application, even if that evaluation is expressed in a very brief recommendation adopting the prosecutor’s rationale for rejecting the application…. The criminal division may not ‘defer’ to the prosecutor in the sense of declining in advance to give any consideration to the merits of a defendant’s application unless the prosecutor joins in the application. The latter form of ‘deference’ gives the prosecutor complete control over the PTI application process, while abdicating the role of the court-managed PTI program in evaluating PTI applications.”