The appellate panel continued in relevant part: We do, on the other hand, find guidance in Justice Handler’s dissent in State v. DeMarco (1987). In discussing the prosecutor’s authority under PTI and legislative intent behind the program, he writes: This authority encompasses broadly the discretion to consider a host of factors bearing on eligibility for PTI. This does not, however, include the use of PTI as an extension of the penal laws. PTI is an alternative to the criminal justice system; it is not a supplement to criminal prosecution. This strongly suggests that a prosecutor may not use PTI to achieve the ends of criminal prosecution that encompass punishment and deterrence. It is within this frame of reference that the discretion of the prosecutor will permit the imposition of conditions on PTI enrollment-if they bear a rational relationship to the rehabilitation of diverted offenders. This discretion, however, does not enable a prosecutor to use PTI as a vehicle for the imposition of discipline that is otherwise vested in other governmental and regulatory entities.
By imposing jail time as a condition for defendant’s PTI admission, the Prosecutor’s Office is essentially imposing a penal sanction not found in the PTI statute or elsewhere, thereby exceeding its legal authority. Based upon the legislative intent and spirit of PTI to divert a defendant who satisfies the criteria articulated in the PTI statute and Rule 3:28 from the criminal process, we are convinced the Prosecutor’s Office imposed an unlawful condition by requiring the service of jail time for defendants’ admission into PTI. Clearly, the policy goal of avoiding traditional prosecution through PTI would be subverted by one of the most onerous consequences of all – incarceration. The Prosecutor’s Office had no legal right to impose some form of penal punishment as a condition for defendants’ admission into PTI.
As mentioned, the Prosecutor’s Office acknowledged at argument before us that it may not condition a defendant’s PTI admission on serving jail time. We are unpersuaded, however, by its contention that defendants were never appropriate candidates for PTI, given the negotiations seeking to compel defendants to serve some jail time. Furthermore, the Prosecutor’s Office agreed to a plea deal in which defendants would serve no jail time but receive probation. Considering defendants were ROR, the probation department recommended their acceptance into PTI, and there was no legal authority to require them to serve jail time as a condition to get into PTI, the Prosecutor’s Office’s denials of their applications were tainted.
Under these circumstances, the Prosecutor’s Office patently and grossly abused its discretion in denying defendants’ PTI entry because they would not serve jail time. They should be admitted into the program. Accordingly, it is unnecessary to address the Prosecutor’s Office’s weighing of PTI factors in denying defendants’ PTI admission. Reversed and remanded to vacate defendants’ guilty pleas and admit them into PTI.
This decision will likely lead to scenarios wherein the prosecutor makes it known that a given defendant could participate in PTI if s/he offers to serve jail time as a condition. By making this known without reducing it to writing, the State can avoid “imposing some form of penal punishment.”