Rule 3:28. Pretrial Intervention ProgramsGuidelines for Operation of Pretrial Intervention in New Jersey

(a) Each Assignment Judge shall designate a judge or judges to act on all matters pertaining to pretrial intervention programs in the vicinage in accordance with N.J.S.A. 2C:43-12 and -13.

(b) Where a defendant charged with a penal or criminal offense has been accepted by the program, the designated judge may, on the recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, postpone all further proceedings against said defendant on such charges for a period not to exceed thirty-six months.

(c) At the conclusion of the period set forth in paragraph (b) or earlier upon motion of the criminal division manager, the designated judge shall make one of the following dispositions:

(1) On recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, dismiss the complaint, indictment or accusation against the defendant, such a dismissal to be designated "matter adjusted-complaint (or indictment or accusation) dismissed"; or

(2) On recommendation of the criminal division manager and with the consent of the prosecutor and the defendant, further postpone all proceedings against such defendant on such charges for an additional period of time as long as the aggregate of postponement periods under the rule does not exceed thirty-six months; or

(3) On the written recommendation of the criminal division manager or the prosecutor or on the court's own motion order the prosecution of the defendant to proceed in the ordinary course. Where a recommendation for such an order is made by the criminal division manager or the prosecutor, such person shall, before submitting such recommendation to the designated judge, provide the defendant or defendant's attorney with a copy of such recommendation, shall advise the defendant of the opportunity to be heard thereon, and the designated judge shall afford the defendant such a hearing.

(4) During the conduct of hearings subsequent to an order returning the defendant to prosecution in the ordinary course, no program records, investigative reports, reports made for a court or prosecuting attorney, or statements made by the defendant to program staff shall be admissible in evidence against such defendant.

(5) No statement or other disclosure regarding the charge or charges against the participant made or disclosed by a participant in pretrial intervention to a person designated to provide supervisory treatment shall be disclosed by such person at any time, to the prosecutor, nor shall any such statement or disclosure be admitted as evidence in any civil or criminal proceeding against the participant, provided that the criminal division manager shall not be prevented from informing the prosecutor, or the court, on request or otherwise, whether the participant is satisfactorily responding to supervisory treatment.

(d) Where proceedings have been postponed against a defendant for an additional period as provided in paragraph (c)(2), at the conclusion of such period the designated judge may not again postpone proceedings but shall make a disposition in accordance with paragraph (c)(1) or (3). The aggregate of postponement periods under this rule shall in no case exceed thirty-six months.

(e) The Administrative Director of the Courts shall establish and maintain a Pretrial Intervention Registry for the purpose of determining applications, enrollments and the degree of completion thereof by a defendant in a program approved by the Supreme Court in accordance with paragraph (a). The Pretrial Intervention Registry shall contain such information and material as directed by the Supreme Court. No order to expunge or seal records of arrest after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention of material and information in the Pretrial Intervention Registry for the purposes of determining a defendant's prior applications to, enrollments in and the degree of completion of a Pretrial Intervention Program or for statistical reports required of the Administrative Director of the Courts, by law or the Supreme Court.

(f) When the criminal division manager and prosecutor reject an application for participation in the pretrial intervention program, there shall be no pretrial review by an appellate court if the rejection is upheld by the designated judge or the Assignment Judge. An order enrolling a defendant into the pretrial intervention program over the prosecutor's objection shall be deemed final for purposes of appeal, as of right, and shall be automatically stayed for fifteen days following its entry and thereafter pending appellate review.

(g) Denial of acceptance pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty.

(h) Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager's recommendation.

An appeal by the defendant shall be made on motion to the Presiding Judge of the Criminal Division or to the judge to whom the case has been assigned within ten days after the rejection and shall be made returnable at the next status conference or at such time as the judge determines will promote an expeditious disposition of the case. Where application is made pre-indictment, the prosecutor may withhold action on the application until the matter has been presented to the grand jury.

(a) To provide defendants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services, when such services can reasonably be expected to deter future criminal behavior by the defendant, and when there is an apparent causal connection between the offense charged and the rehabilitative need, without which cause both the alleged offense and the need to prosecute might not have occurred.

(b) To provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.

(c) To provide a mechanism for permitting the least burdensome form of prosecution possible for defendants charged with "victimless" offenses.

(d) To assist in the relief of presently overburdened criminal calendars in order to focus expenditure of criminal justice resources on matters involving serious criminality and severe correctional problems.

(e) To deter future criminal or disorderly behavior by a defendant/participant in pretrial intervention.

Guideline 1(a) states a rehabilitative model on which PTI programs in New Jersey are based. The rehabilitative model emphasizes that social, cultural and economic conditions often result in a defendant's choice of environmental compulsion to commit crime. PTI seeks to solve personal problems which tend to result from the conditions that appear to cause crime.

Guideline 1(b) recognizes that diversion in appropriate circumstances can serve as sufficient sanction to deter future criminal conduct.

Guideline 1(c) provides for the use of PTI as a mechanism for minimizing penetration into the criminal process for broad categories of offenders accused of "victimless crimes," without relinquishing criminal justice control over such persons while statutes proscriptive of such behavior remain in force.

Guideline 1(d) provides for removing from ordinary prosecution those who can be deterred from criminal behavior by short term rehabilitative work or supervision. It is to be emphasized that the potential for rehabilitation must be considered in light of the time periods embodied in Rule 3:28(b), (c), (d).

The deterrence of criminal behavior in many cases requires intensive work: counseling, psychotherapy, drug-abuse prevention and control, employment placement. Programs in these cases should be measured against available treatment facilities and the time constraints of PTI. For other defendants, however, no more than a supervised pretrial probationary period may be necessary when no extensive need for rehabilitative services can be discerned.

Guideline 1(e) acknowledges that pre-conviction rehabilitation can be in the public interest when it results in the deterrence of future misconduct.

(a) Age Pretrial intervention is designed to deal only with adult defendants who, in accordance with New Jersey law, are those persons above the age of 18. Also included are those juveniles between the ages of 14 and 18 who are treated as adults under R. 5:22-1 or 5:22-1.

(b) Residence New Jersey's PTI program is designed to deal with the problem of crime in New Jersey. Only those defendants are ineligible who reside such distances from New Jersey as to bar effective counseling or supervisory procedures.

(c) Jurisdiction Only defendants charged with criminal or penal offenses in the criminal or municipal courts of the State of New Jersey may be enrolled pursuant to R. 3:28.

(d) Minor Violations Defendants should not be eligible for enrollment if the likely disposition would result in a suspended sentence without probation or a fine. Those charged with ordinance, health code and other similar violations are not eligible.

(e) Prior Record of Convictions While the pretrial intervention program is not limited to "first offenders", defendants who have been previously convicted of a criminal offense should ordinarily be excluded. Such defendants who have at any prior time been convicted of a first or second degree crime or who irrespective of the degree of the crime have completed a term of probation, incarceration or parole within five years prior to the date of application for diversion shall ordinarily not be considered for enrollment in PTI except on joint application by the defendant and the prosecutor. Defendants charged with more than one offense may be considered for enrollment.

(f) Parolees and Probationers Defendants who, at the time of arrest, are probationers or parolees should be considered for enrollment under R. 3:28 only after consultation with the Chief Probation Officer or District Parole Supervisor whose departments supervise the defendants, and only after they have agreed that revocation of probation or parole need not be recommended or after the appropriate authority has made the decision not to revoke probation or parole.

(g) Defendants Previously Diverted Supervisory treatment may occur only once with respect to any defendant who has previously been enrolled in a program of pretrial intervention or conditionally discharged pursuant to N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1. All applications for enrollment in a PTI program must proceed in accordance with the rules of the Supreme Court and these guidelines after reference to the Pretrial Intervention Registry established pursuant to R. 3:28(e) and N.J.S.A. 2C:43-21(a). No order to expunge or seal records of arrest after dismissal of a complaint, indictment or accusation under paragraph (c) or (d) shall bar the retention of material and information in the Pretrial Intervention Registry for the purposes of determining a defendant's prior applications to, enrollments in, and the degree of completion of a Pretrial Intervention Program or for statistical reports required of the Administrative Director of the Courts, by law or the Supreme Court.

(h) Eligibility Under N.J.S.A. 24:21-27 or N.J.S.A. 2C:36A-1 The statutes set forth the criteria for eligibility and guidelines for exclusion. Defendants eligible for pretrial intervention or conditional discharge pursuant to N.J.S.A. 2C:36A-1 or § 27 of the Controlled Dangerous Substances Act may be placed under the supervision of a pretrial intervention program.

(i) Assessment of the Nature of the Offense Any defendant charged with crime is eligible for enrollment in a PTI program, but the nature of the offense is a factor to be considered in reviewing the application. If the crime was (1) part of organized criminal activity; or (2) part of a continuing criminal business or enterprise; or (3) deliberately committed with violence or threat of violence against another person; or (4) a breach of the public trust where admission to a PTI program would deprecate the seriousness of defendant's crime, the defendant's application should generally be rejected. A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L.1970, c. 226 (N.J.S.A. 24:21-1 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

(j) Co-defendants The impact of diversion on the prosecution of co-defendants is a factor to be considered.

(k) Restitution and Community Service A restitution or community service requirement, or both, may be included as part of an individual's service plan when such a requirement promises to aid the rehabilitation of the offender. Any such requirement and its terms shall be judicially determined at the time of enrollment following recommendation by the criminal division manager and consent by the Prosecutor. Evidence of the restitution condition is not admissible against defendant in any subsequent civil or criminal proceeding. Admission to the program shall not be denied solely on the basis of anticipated inability to meet a restitution requirement. Where appropriate to further rehabilitation, symbolic or partial restitution may be included in the service.

(1) The nature of the offense;

(2) The facts of the case;

(3) The motivation and age of the defendant;

(4) The desire of the complainant or victim to forego prosecution;

(5) The existence of personal problems and character traits which may be related to the applicant's crime and for which services are unavailable within the criminal justice system, or which may be provided more effectively through supervisory treatment and the probability that the causes of criminal behavior can be controlled by proper treatment;

(6) The likelihood that the applicant's crime is related to a condition or situation that would be conducive to change through his participation in supervisory treatment;

(7) The needs and interests of the victim and society;

(8) The extent to which the applicant's crime constitutes part of a continuing pattern of anti-social behavior;

(9) The applicant's record of criminal and penal violations and the extent to which he may present a substantial danger to others;

(10) Whether or not the crime is of an assaultive or violent nature, whether in the criminal act itself or in the possible injurious consequences of such behavior;

(11) Consideration of whether or not prosecution would exacerbate the social problem that led to the applicant's criminal act;

(12) The history of the use of physical violence toward others;

(13) Any involvement of the applicant with organized crime;

(14) Whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution;

(15) Whether or not the applicant's involvement with other people in the crime charged or in other crime is such that the interest of the State would be best served by processing his case through traditional criminal justice system procedures;

(16) Whether or not applicant's participation in pretrial intervention will adversely affect the prosecution of co-defendants; and

(17) Whether or not the harm done to society by abandoning criminal prosecution would outweigh the benefits to society from channeling an offender into a supervisory treatment program.