On March 14, 2022, a three-judge appellate panel decided the Camden County case of State v. E.R. The principal issue under N.J.S.A 2C:43-12 concerned the denial of the defendant’s pre-trial intervention application based on mental illness concerns.
Judge Enright wrote for the Appellate Division in relevant part: Additionally, the assistant prosecutor declared that defendant could not be adequately supervised through PTI, given that it provided a “minimal level” of supervision. But he failed to specify what level of supervision defendant required at that point. Such information was critical, considering defendant had no criminal history leading up to the events of May 2018, and had remained offense-free for over a year by the time the judge rendered her decision on defendant’s request to enter the PTI program.
Further, although the assistant prosecutor was supplied with defendant’s mental health records and advised by defense counsel she was compliant with her mental health treatment, the assistant prosecutor did not explain why the supervisory services offered through probation were unavailable to defendant if she was admitted into PTI. Absent this essential comparison of services available through PTI versus probation, and given the State’s failure to detail why defendant would not be amenable to PTI supervision, despite her complete lack of a criminal history and purported compliance with her mental health treatment, we are persuaded defendant was deprived of the comprehensive individual assessment to which she was entitled from the State when it evaluated her suitability for PTI supervision.
In State v. Fitzsimmons (App. Div. 1995), we ordered a remand after concluding the State “abused its discretion by failing to adequately account for the self-willed, vigorous rehabilitation defendant had undergone.” In that case, the defendant pled guilty to two counts of burglary and one count of distributing a controlled substance near a school zone. After struggling with drug addiction, Fitzsimmons applied to PTI. The State initially rejected his application, but we remanded the matter so the State could explain its “concern that the short-term supervision characteristic of PTI admission would be inadequate to insure defendant’s rehabilitation.” We also directed the prosecutor to reconsider Fitzsimmons’s PTI application and “focus on the issue of whether despite defendant’s remarkable rehabilitation, the countervailing public interest nevertheless demands prosecution of these offenses.”
It is common boilerplate language for prosecutors to cite to how PTI supervision is not as intense as regular probation supervision. The related claim that PTI supervision is too “short-term” ignores the realities of probation supervision. PTI supervision can last a maximum of three years. This is plenty of time for “rehabilitation”, as evidence by the fact that most terms of traditional probation do not last more than three years.
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