The Appellate Division continued in relevant part: The Prosecutor’s Office contends it did not believe defendants were appropriate for PTI based on the offenses, and that some jail time was appropriate despite defendants’ efforts to strike a balance that did not require it. In support of the claim, the Prosecutor’s Office conceded at oral argument before us that admission into PTI conditioned upon jail time was not authorized by law.
The record belies the Prosecutor’s Office’s position that it did not condition defendants’ PTI admission upon serving a short jail stint. Serving jail time was not defendants’ offer to gain admission into the program. Before formally deciding defendants’ PTI applications, the Prosecutor’s Office proposed that defendants serve some jail time as “a way” to get into PTI, and then negotiated with them over the course of four months in an effort to have them agree.
The Prosecutor’s Office’s contention that defendants were not candidates for PTI is illogical considering its attempts to get them to agree to serve jail time as part of its negotiations with defendants regarding their admission. It was only after defendants rejected the jail proposals of 180 days, and then thirty days, followed by the First Assistant Prosecutor’s refusal to downgrade the indicted charges to municipal court to possibly facilitate weekend jail time, that the Prosecutor’s Office rejected defendants’ PTI applications outright. Significantly, at no point did the Prosecutor’s Office dispute representations in Quinn counsel’s letters that defendants had to serve jail time as a condition for PTI admission. Thus, we agree with defendants that serving jail time was a condition imposed by the Prosecutor’s Office to admit them into PTI.
The reference to defense counsel’s letters underscores the importance of making a good record for appeal. Without the details of the negotiations being reduced to writing, the appellate division may not have been aware of the prosecutor’s efforts to make jail time a pre-condition of PTI.
