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Prosecutor’s Discretion In Denying Pretrial Intervention Applications Is Not Limitless

March 07, 2019

STELIOS STOUPAKIS reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division, concerning the Prosecutor’s discretion in denying Pretrial Intervention Program (“PTI”) applications.

Specifically, the Appellate Division slightly tightened the broad discretion originally provided to the Prosecutor in the decision making over PTI applications.  PTI generally offers first-time offenders charged with indictable offenses an opportunity to avoid a criminal conviction.  Typically, only Defendants charged with non-violent crimes are eligible for PTI; however, as evidenced in this decision, that does not always hold true.   

The Defendant, in this case, was charged with second-degree aggravated assault and second-degree conspiracy to commit assault and ultimately pled guilty to one count of third-degree conspiracy to commit assault.  Initially, the Defendant submitted an application for PTI.    The Prosecutor denied the PTI application on the basis that the Defendant is ‘exceedingly violent’ and used his prior juvenile record along with the matter at hand, arguing that the Defendant was the primary attacker to establish a pattern of violence.  The Defendant appealed to the trial court; however, the trial court declined to reverse the Prosecutor’s decision.  Defendant appealed the denial of PTI to the Appellate Division.

During the appeal, the Prosecutor abandoned the original allegation of Defendant being the primary attacker.  Instead, the Prosecutor based his reasoning for denying PTI on Defendant’s admission of being present during the incident.  Thus, the Appellate Division concluded that the Prosecutor/State changed its theory of the case and, ultimately, considered the Defendant ineligible for PTI despite what limited role he may have had in the assault.  The Appellate Division noted that it is improper to categorize an individual for PTI as ineligible simply based on the crime charged, rather than considering the specifics of the facts involved.  Further, the Appellate Division found the State improperly relied on dismissed juvenile charges in making its decision.  The Appellate Division reversed and remanded to the State for reconsideration of the Defendant’s PTI application.   

Please contact Stelios Stoupakis if you have any questions or need assistance in connection with this subject.