To overcome a program director’s PTI denial, the accused must establish arbitrary or capricious conduct amounting to an abuse of discretion, by a preponderance of the evidence. State v. Lopes, 289 N.J. Super. 460, 478-79 (Law Div. 1995). The preponderance of the evidence standard, as opposed to “clear and convincing evidence” should apply when the prosecution does not joined in the PTI Director’s denial. If a prosecutor is going to withhold consent to admission, she must provide specific reasons for doing so. State v. Atley, 157 N.J. Super. 157 (App. Div. 1978). The decision must be reduced to writing and disclosed to the defendant. R. 3:28, Guideline 8.
For a PTI director’s decision to constitute “arbitrary or capricious” conduct amounting to an “abuse of discretion”, the defendant must demonstrate that the decision: (a) failed to address all relevant factors; (b) was based on irrelevant or inappropriate factors; or (c) constituted a clear error of judgment. Lopes, at 479; See also State v. Nwobu, 139 N.J. 236, 247 (1995)(describing the standard for overcoming a prosecutor’s PTI denial).
A common basis for PTI rejection, as alluded to above, is as follows: “Guideline 3(i) which indicates that a defendant charged with the sale or dispensing of Schedule I or II narcotic drugs by persons not drug dependent should ordinarily not be considered for enrollment except on joint application by the defendant and the prosecutor.”
The most commonly used and “distributed” controlled substance is marijuana. The fact that distribution of less than one ounce of marijuana is classified as a fourth degree offense, whereas the distribution of a minuscule amount of most every other controlled substance is a more serious third degree crime. This anomaly lends itself to some helpful arguments on appeal. Consider the following example.
Marijuana is unique from all other “Schedule I or II narcotics” in that providing less than one ounce of it is classified as minor, fourth degree offense, as opposed to a more serious felony. N.J.S.A. 2C:35-5(b)(1) through (12); N.J.S.A. 2C:6-1. If an applicant charged with fourth degree marijuana distribution were charged with any lower level of offense, he would not be considered for PTI because his offense would not be serious enough. With a lower level of offense, the Superior Court would not have jurisdiction because he would not be facing “a potential sentence of consequence.” R. 3:28, Guideline 3(d); Rodriguez v. Rosenblatt, 58 N.J. 281 (1971).
