The PTI appeal, while labor-intensive, is the defendant’s first opportunity to not only point out their own positive attributes, but to also point to the alleged facts of their cases that support admission. It is very effective to use the state’s own police reports to justify PTI admission. A searching review of these reports in the cases of “drug distribution” in the most technical sense of the term will often reveal an unsophisticated user as opposed to someone who refrained from use, but sold for profit. For example, paraphernalia associated with use might have been seized, whereas no paraphernalia associated with distribution was found.
Additionally, the fact that the relevant PTI admission criteria are numerous almost always provides a basis for appeal. Concerning applicable remedies, if the PTI Director fails to consider all relevant factors or considers irrelevant factors, “a court may remand the matter for further consideration.” Nwobu, at 247. Thus, a PTI rejection should be analyzed with an eye towards pointing out which of the following criteria were not addressed by the program director and/or prosecutor.
(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 forgo 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 the applicant’s participation in pretrial intervention will adversely affect the prosecution of codefendants; 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. N.J.S.A. 2C:43-12(e).
If an applicant is denied PTI and suffers a felony conviction, he will likely have to wait more than a decade before he becomes eligible for an expungement under N.J.S.A. 2C:52-2. While there is a temptation to hire the lowest-priced criminal defense attorney, doing so is almost always penny-wise and dollar foolish. Most every attorney that charges less than I do (any many that charge a lot more than I do) simply has their client apply for PTI without proper preparation and then claims there is nothing that can be done when they are rejected from the program. Then, the client is going to have to deal with the otherwise avoidable expense of a PTI appeal, or worse, deal with a felony conviction on their record. The latter can end of costing tens, if not hundreds of thousands of dollars or more when factoring in money wasted on college and post-graduate degrees, compounded by the related denial of employment that comes with a felony conviction.
