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New Jersey PTI Denial by Prosecutor Reversed on Appeal


by in Criminal Defense, Expungements

Under current New Jersey law, a prosecutor may veto a criminal defendant’s application for Pre-trial Intervention (PTI). However, that power is not without limitation. In this NJ criminal case recently decided on appeal, the Court reversed a prosecutor’s refusal to allow the defendant to enter the PTI program. Summary by Mark Friedman.

State v. Jovan Alvarez, unpublished opinion, App. Div. Docket No. A-0501-08T4 (November 24, 2009) – “Defendant Jovan Alvarez appeals his judgment of conviction of August 15, 2008, on the basis that the prosecutor abused his discretion in refusing defendant admission into the pretrial intervention program (PTI) governed by N.J.S.A. 2C:43-12 to -22 and Rule 3:28, and its accompanying Guidelines for Operation of Pretrial Intervention in New Jersey.

We agree. Although defendant was accepted into the PTI program, the prosecutor objected to his admission into the program on the basis that defendant did not accept full responsibility for his criminal conduct….

We do not find a factual basis in this statement to support the prosecutor’s conclusion that defendant did not accept responsibility for his criminal conduct. Defendant quite plainly admitted that he had been using and distributing marijuana and that he was very sorry he had done so. Although the prosecutor specifically contended that defendant denied selling drugs and claimed he only used them, that is a clearly mistaken reading of the PTI interview record.

Defendant admitted selling drugs, but explained that he was doing so to support his own drug habit. Defendant’s statement in the PTI evaluation supports the PTI Program Director’s conclusion that ‘[t]he defendant accepted responsibility for his involvement in the instant offense and further expressed remorse for his actions.

This is viewed as an indication of his apparent amenability to rehabilitation.’… We conclude that the prosecutor’s decision to deny defendant admission into the PTI program goes ‘so wide of the mark’ that it constitutes a ‘patent and gross abuse of discretion.’

Defendant is a good candidate for the rehabilitative efforts of PTI…. Defendant’s conviction is reversed, and he shall be admitted into the PTI program. The time he has spent on probation for this offense shall be counted toward his time in PTI.” (Jane M. Personette)

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